                                                                           PD-0257-15
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
August 18, 2015                                          Transmitted 8/17/2015 3:33:23 PM
                                                           Accepted 8/18/2015 8:09:09 AM
                                                                           ABEL ACOSTA
                              No. PD-0257-15                                       CLERK

                  IN THE COURT OF CRIMINAL APPEALS

                        OF THE STATE OF TEXAS

                   GREGORY SHAWN HENLEY, Appellant

                                    v.

                     THE STATE OF TEXAS, Appellee

                       Appeal from Tarrant County

                                 *****

                  APPELLANT’S BRIEF ON THE MERITS

                                 *****

                           WILLIAM S. HARRIS
                     Attorney for Appellant/Respondent
                      State Bar of Texas No. 09096700

                      307 W. 7th Street, Suite 1905
                         Fort Worth, Texas 76102
                           Phone: (817) 332-5575
                            Fax: (817) 335-6060
                    Email: wmsharris.law@sbcglobal.net
   NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

The names of all parties listed in the State’s Brief on the Merits is
correct and is adopted by the Appellant.




                                     i
                                 TABLE OF CONTENTS


NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT. . I

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . 1

RESPONSES TO ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21




                                                    ii
                             TABLE OF AUTHORITIES

Statutes, Rules and Constitutions.

TEX. PENAL CODE § 22.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

TEX. PENAL CODE §1.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. PENAL CODE §20.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. PENAL CODE, §9.31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16

TEX. PENAL CODE §9.33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

USCS Const. Amend. 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19



Cases.

Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716 (1962).. . . . . . . . . . 9

Carter v. State, 515 S.W.2d 668 (Tex.Cr.App. 1974). . . . . . . . . . . . . . . . 9

Clinton v. State, 354 S.W.3d 795 (Tex. Crim. App. 2011). . . . . . . . . . . 13

Day v. State, 532 S.W.2d 302 (Tex.Cr.App. 1976). . . . . . . . . . . . . . . . . . 9

Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App. 1979). . . . . . . . . . . . . . . 8

Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991). . . . . . . . . . 17

Ferrel v. State, 55 S.W.3d 586 (Tex. Crim. App. 2001). . . . . . . . . . . . . 17

Garcia v. State, 528 S.W.2d 604 (Tex. Crim. App. 1975). . . . . . . . . . . . 12



                                                iii
Garcia v. State, 605 S.W.2d 565 (Tex.Cr.App. 1980). . . . . . . . . . . . . . . . 8

Hayes v. State, 728 S.W.2d 804 (Tex. Crim. App. 1987). . . . . . . . . . . . . 9

Hebert v. State, 836 S.W.2d 252 (Tex. App. 1992). . . . . . . . . . . . . . . . . 13

Henley v. State, 454 S.W.3d 106 (Tex. App.–Fort Worth 2014). . . . 8, 17,
                                                                   19, 20

Johnson v. State, 571 S.W.2d 170 (Tex.Cr.App. 1978). . . . . . . . . . . . . . . 8

Macias v. State, 2015 Tex. App. LEXIS 2319 (Tex. App. Corpus Christi
Mar. 12, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App., 1990). . . . . . . . 3

Moon v. State, 607 S.W.2d 569 (Tex.Cr.App. 1980). . . . . . . . . . . . . . . . . 8

Richardson v. State, 622 S.W.2d 852 (Tex. Crim. App. 1981). . . . . . . . 12

Rock v. Arkansas, 483 U.S. 44 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007). . . . . . . . . 9,10-12

Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App. 1979). . . . . . . . . . . . . . 9

Warren v. State, 565 S.W.2d 931 (Tex.Cr.App. 1978). . . . . . . . . . . . . 8, 9




                                                   iv
             STATEMENT REGARDING ORAL ARGUMENT

      Oral argument was not permitted.

                     RESPONSES TO ISSUE PRESENTED

Response No. 1: The Court of Appeals correctly held that the
appellant was entitled to present evidence that he acted in
defense of a third person.

Response No. 2: The exclusion of evidence that was basic to the
appellant’s right to confrontation and cross-examination, while
related to the defense of a third person, is an independent
ground for sustaining the ruling of the Court of Appeals.

                         STATEMENT OF FACTS

      Appellant regards the state’s recitation of the facts as accurate.

There is one supplemental addition to the state’s account. After the

Appellant stopped his attack on the complainant, after he stepped away

and made a call on his cell phone, Brandy called 911 again.1 Nothing in

the record suggests that Appellant was aware that the 911operator on

the first call had told Brandy to remain on the scene and await an

officer.

                        SUMMARY OF ARGUMENT

Response No. 1: The Court of Appeals correctly held that the


      1
          5 RR 70.

                                     1
Appellant was entitled to present evidence that he acted in
defense of a third person.

     The State’s argument is flawed in its interpretation of the

relevant authority and in its limits on the definitions of terms relevant

to the determination of these issues.

Response No. 2: The exclusion of evidence that was basic to the
Appellant’s right to confrontation and cross-examination, while
related to the defense of a third person, is an independent
ground for sustaining the ruling of the Court of Appeals.

     While there is some overlap between the Court of Appeals first

holding of error, it is not complete. The Court of Appeals also found

that the ruling of the trial court deprived the Appellant of the right to

confront and cross examine the witnesses against him. In addition to

the defense that Appellant sought to advance, this also deprived him of

the meaningful ability to impeach his accusers. This is an independent

ground upon which the Court of Appeals reversal should be

maintained.

                              ARGUMENT

Standard of Review.

     The Court reviews error in refusing to admit evidence under the



                                     2
abuse of discretion standard.2

Response No. 1: The Court of Appeals correctly held that the
Appellant was entitled to present evidence that he acted in
defense of a third person.

      Throughout the trial, Appellant urged the court to allow him to

present evidence on what he was trying to talk to Brandy Gillingham

about, and why he was agitated. The jury was allowed to hear that Ms.

Gillingham’s visitation with her sons was required by the family court

to be supervised by her mother or her father.3 The trial court ruled

they could not be informed of why her visits were supervised,4

      Outside the presence of the jury, the Appellant developed that the

boys had been sexually abused by A. G., the stepson of Douglas

Gillingham, who was the boyfriend at the time of Ms. Gillingham.5 A.

G. had forced the two boys to perform sexual acts on one another in his

presence. S. H., the younger boy, also alleged that Douglas Gillingham

had choked him, although apparently Child Protective Services did not

      2
          Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App., 1990).
      3
          5 RR 80.
      4
          4 RR 29, 5 RR 41.
      5
       Ms. Gillingham married Douglas Gillingham about a week after the assault,
5 RR 89.

                                           3
find that accusation to be credible. Ms. Gillingham personally

dismissed this accusation as not happening. The Appellant believed it

had happened.

     Nevertheless, the family court was sufficiently concerned that it

ordered that Ms. Gillingham’s visitations be supervised and that the

boys not be around Douglas Gillingham. Ms. Gillingham had told the

family court she was no longer living with Douglas Gillingham, but she

admitted on cross examination, outside the presence of the jury, in this

trial that that was a lie and that Appellant knew it was a lie when she

made that representation to the SAPCR court.6

     There apparently was an issue between Appellant and Ms.

Gillingham about the number of times the sexual abuse occurred and

how seriously Ms. Gillingham had taken the initial reports of abuse. J.

H., the older boy, suffers from autism and S. H. from ADHD. On

approximately the Thursday prior to the day of assault, S. H., in

counseling corroborated what J. H. had told his mother about the abuse

and, apparently for the first time, revealed that it had happened on



     6
         5 RR 86-88.

                                   4
more than one occasion and on one occasion when Ms. Gillingham was

in the house in a separate room. From these revelations in counseling,

Appellant learned that the abuse had been more extensive and occurred

on more occasions than they had first thought, 5 RR 111-113. J. H. had

been saying all along that he had told his mother about the abuse, but

this was the first time S. H. confirmed that. The confirmation that J.

H. had told his mother and she had said she would take care of it,

apparently led Appellant to believe that Ms. Gillingham had minimized

the situation. He was trying to talk to her about it when she showed

up for visitation, but she would not discuss it with him.7 He felt she

was, again, dismissing his concerns about their boys.8 When he tried to

tell Ms. Kennedy, the chaperone, she totally ignored him, also.9 Thus,

Appellant thought that Ms. Gillingham taking possession of the boys

was placing them in danger of abuse. With the boys in the car, this

danger was, to his thinking, immediate.

     Appellant’s defense was that he had acted in defense of third

     7
         5 RR 111.
     8
         Id.
     9
         Id.

                                    5
parties, his sons. Defense of a third party is statutorily defined in

section 9.33 of the Penal Code. It consists of the following elements:

         1. Under the circumstances as the actor reasonably believes them

to be,

         2. The actor would be justified in using force under section 9.31 to

protect himself, and

         3. The actor reasonably believes that his intervention is

         immediately necessary.10

         The testimony of Appellant was evidence that he had a reasonable

belief that his ex-wife and former mother in law did not perceive the

boys to be in any serious danger from Douglas Gillingham and that

they minimized or did not believe full measure of the boys reports of

abuse. He had reason to believe that his wife was lying about the

extent to which she was keeping the boys away from Douglas

Gillingham, since by her own admission, she had lied to the SAPCR

court about living with Douglas Gillingham. And, it was apparent that

neither his ex-wife nor his former mother in law were willing to listen



         10
              TEX. PENAL CODE §9.33.

                                       6
to the new information he was trying to convey to them. This created a

reasonable apprehension of danger from Appellant’s view point. Even

after the bill of review was developed for the court, the court denied the

Appellant the right to present the evidence, despite the Appellant’s

objection that the court was preventing him from putting on a

defense.11

     If Appellant had been as comparatively powerless as the two boys

and as limited in reporting their needs for protection, he would have

been justified in using force to leave the car. The prosecutor argued

there was no immediacy because the revelation by S. H. had been made

days before.12 This misidentified what the immediate danger was.

Appellant testified that he believed that the boys were being taken

from him into danger and that was the immediacy that motivated him.

Ultimately, after repeatedly excluding the evidence, the court ruled the

evidence did not raise an issue of defense of a third party and would not

let Appellant put on evidence to prove this factual situation.13 When the

     11
          5 RR 121.
     12
          5 RR 118.
     13
          5 RR 121.

                                    7
court ruled that Appellant could not put forward evidence of the

reasons for the supervised visitation, Appellant complained that this

would deprive him of meaningful cross examination and confrontation

of the complainant.14

     The Court of Appeals ruled that the trial court had erred in not

allowing the Appellant to put forward his defense and not allowing him

to adequately confront and cross examine his accuser.15

Defense of a Third Person.

     The law is well established that if there is evidence that raises the

elements of a defense, the Appellant is entitled to a charge on the

defense and to have evidence submitted to the jury for a factual

determination by the jury.

     This Court has consistently held that an accused is entitled
     to an instruction on every defensive issue raised by the
     evidence. Moon v. State, 607 S.W.2d 569 (Tex.Cr.App. 1980);
     Garcia v. State, 605 S.W.2d 565, 566 (Tex.Cr.App. 1980);
     Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978);
     Warren v. State, 565 S.W.2d 931, 933-4 (Tex.Cr.App. 1978);
     Esparza v. State, 520 S.W.2d 891, 892 (Tex.Cr.App. 1979).
     This is true regardless of whether such evidence is strong or


     14
          4 RR 28.
     15
          Henley v. State, 454 S.W.3d 106, 114, 116 (Tex. App.–Fort Worth 2014).

                                          8
     weak, unimpeached or contradicted, and regardless of what
     the trial court may or may not think about the credibility of
     this evidence. Warren v. State, supra; Shaw v. State, 510
     S.W.2d 926 (Tex.Cr.App. 1974) (opinion on motion for
     rehearing); Carter v. State, 515 S.W.2d 668 (Tex.Cr.App.
     1974).

     It is also well settled that a defendant's testimony alone is
     sufficient to raise a defensive issue requiring an instruction
     in the jury charge. Warren v. State , supra; Simpkins v.
     State, 590 S.W.2d 129, 132 (Tex.Cr.App. 1979); Day v. State,
     532 S.W.2d 302, 306 (Tex.Cr.App. 1976). This is particularly
     true when, as is the case here, Appellant made a proper and
     timely request for such a charge. Warren v. State, supra, at
     934; see also Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d
     716 (1962).16


     The Appellant explained that he feared that his wife might expose

the boys to Douglas Gillingham or A. G., based upon her lying to the

SAPCR court about continuing to live with the man, her minimizing

attitude about the severity and extent of the abuse, her disbelief that

Douglas Gillingham had choked S. H., and her unwillingness to discuss

these issues or listen to the new information that had been revealed in

counseling. Had he been in a position where he was being forcibly

removed to a place where he would be endangered, as the boys were, he



     16
          Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987).

                                          9
would have been entitled to use force to prevent the removal.17 And

finally, it was immediately necessary because Ms. Gillingham was

about to leave with the boys. Thus, the evidence raised the defense.

Even if the jury ultimately did not accept the defense, the Appellant

was entitled to have the jury, not the court, make that decision. The

court again denied Appellant the right to place this evidence before the

jury, thus overruling his request.

The State’s complaint.

     The State complains that the Court of Appeals has misinterpreted

the law of self defense and defense of a third person. The first

complaint is that the Appellant’s statement of the imminent danger he

perceived was not sufficient to raise an issue of defense of a third

person.18 While Appellant agrees that the standard for making this

decision set forth in Shaw v. State19, the State misapplies the standard




     17
          See TEX. PENAL CODE, §9.31.
     18
          State’s Brief on the Merits (hereafter State’s Brief) p. 13.
     19
          Shaw v. State, 243 S.W.3d 647, 657 (Tex. Crim. App. 2007).

                                            10
to the evidence in this case.20

      In Shaw, the defendant, who was not trained in the medical arts,

aggressively administered CPR to her grandson. In the initial report of

the doctor who examined the boy, he found that the fatal head injury

could have been caused by aggressive CPR. The defendant asked for an

instruction on the “Good Samaritan Defense.”21 While this Court did

not dispute that there was prima facie evidence of the elements of the

defense, it found that, because the defense is in the nature of a

confession and avoidance defense, and because there was no evidence of

a culpable mental state when the defendant administered CPR, she


      20
         On page 14 of the State’s Brief, the State quotes this Court in Shaw as
follows: “To prevent this, the trial court ‘must rely on its own judgment, formed in
the light of its own common sense and experience, as to the limits of rational
inference from the facts proven.’” The use of the word “proven” in this context is ill
advised. All the prima facie case must provide is some evidence from which the
finder of fact may rationally conclude that there is at least a reasonable doubt that
the defensive element exists.
      21
        (k) It is a defense to prosecution under this section that the act or omission
consisted of:

             (1) reasonable medical care occurring under the direction of or by a
             licensed physician; or

             (2) emergency medical care administered in good faith and with
             reasonable care by a person not licensed in the healing arts.

TEX. PENAL CODE § 22.04(k)(1)(B).

                                          11
was not entitled to the defense.22

     In a similar vein, the cases cited in Shaw as precedence also turn

on whether all the elements necessary to believe the defense are

present at all in the evidence. In Richardson v. State23 the defense

instruction requested was entrapment. The Court found the record was

devoid of any suggestion that law enforcement had induced the

defendant possess marijuana. In Garcia v. State24 the Court found that

the defendant’s testimony that he had been advised by law enforcement

that his murder was sought by another and that he should protect

himself was evidence that he was induced to violate the law against

carrying a firearm.25

     The State suggests that the defendant’s testimony alone is not

enough to support a rational finding by a jury in support of the

defense.26 In this instance, in his bill of review, the Appellant


     22
          Shaw, supra at 659.
     23
          Richardson v. State, 622 S.W.2d 852, 856 (Tex. Crim. App. 1981).
     24
          Garcia v. State, 528 S.W.2d 604, 605 (Tex. Crim. App. 1975).
     25
          Id.
     26
          State’s Brief p. 18.

                                          12
explained his fear and his reasons for that fear; his ex-wife’s and her

chaperone’s indifference to the concern, and his ex-wife’s willingness to

commit perjury to cover up her disobedience to the SAPCR court’s

orders. The State describes this testimony as conclusory, but that

simply is not so. The Appellant detailed what he feared would happen

and why he feared it would happen. He made these statements under

oath. If, as the State suggests, his testimony is not enough to create a

prima facie evidence of the elements of the offense because it came from

the defendant, then they are suggesting a de jure rule that the

testimony of the defendant be treated differently from that of other

witnesses merely because he is the defendant. If that were the law, it

would surely be a violation of due process.27

The undefined terms.

      Terms that are not defined by statute are given their common

meaning.28 The State engages in an analysis of non-statutorily defined

terms in the self defense and defense of a third person statutes,


      27
         Rock v. Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704, 2708-09 (1987); Hebert
v. State, 836 S.W.2d 252, 255 (Tex. App. 1992).
      28
           Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011).

                                           13
purporting to show that the Appellant is not entitled to the defense of

defense of a third person.29

“Other.”

      While the Corpus Christi Court of Appeals did say in Macias v.

State30 that the term in the statute logically refers to the other who is

threatening the use of unlawful force, it should also be noted that

Macias is an unreported opinion and this suggestion has not been

approved by this Court. Further, if the legislature had intended to so

limit the term other, it could have done so by adding the phrase,

“threatening or using unlawful force.”

      Moreover, the State is simply trying to divert attention from the

forcible act that was being committed by Brandy Gillingham. She was

taking the boys from the defendant, possibly to a location where they

would be exposed to Douglas or A. G.

“Unlawful force.”




      29
           State’s Brief, pp. 14-21.
      30
        Macias v. State, 2015 Tex. App. LEXIS 2319 *18 (Tex. App. Corpus Christi
Mar. 12, 2015).

                                       14
      The Penal Code defines “unlawful” as being criminal or tortious.31

Had the Appellant been the person in the car and he believed that he

was being taken to a place where he would be exposed to harm, he

would clearly have been entitled to use the force necessary to extricate

him from the car. Appellant believed, in light of the indifference shown

by both Brandy and her mother, that this was precisely what was in

store for his sons. Taking a person against their free will to a place of

danger would surely constitute criminal or tortious conduct.32 S. H.

and J. H. were minors to whom we do not afford the free volition to

resist the directions of their parents.

      “Force,” on the other hand, is a word of common usage, not

defined by statute. It has many definitions when used as a noun, as it

is here. One definition is: “Strength or energy as an attribute of

physical action or movement.”33 It is also defined as: “Coercion or


      31
           TEX. PENAL CODE §1.07(48).
      32
        Arguably, the removal of the boys from Appellant’s custody was an
unlawful restraint under TEX. PENAL CODE §20.02. Brandy would have had a
defense to such a charge as a relative of the minor children trying to take lawful
custody, but the existence of a defense does not alter the potentially unlawful
character of the conduct.
      33
           OXFORD U. S. ENGLISH DICTIONARY; Oxford University Press, 2015.

                                         15
compulsion, especially with the use or threat of violence.”34 The moving

or restraining of someone against their will is clearly contemplated in

the meaning of unlawful force in the self defense statute, because it is

one of the situations in which the immediate need for force is

presumed:

     The actor's belief that the force was immediately necessary
     as described by this subsection is presumed to be reasonable
     if the actor: (1) knew or had reason to believe that the
     person against whom the force was used: . . . unlawfully and
     with force removed, or was attempting to remove unlawfully
     and with force, the actor from the actor's habitation, vehicle,
     or place of business or employment.35

“Immediately necessary”

     While Appellant does not dispute the common usage asserted by

the State for these words in the State’s Brief, p. 17, Appellant disagrees

with the State’s concept of the harm to be avoided. It is not and was

not (at least immediately) the actions of Douglas or A. G., but rather

the removal from Appellant’s care of two small boys whose mother and

grandmother were indifferent to the danger in which they were likely

placing the boys if exposed to Douglas or A. G.

     34
          Id.
     35
          Tex. Penal Code § 9.31(a)(1)(B).

                                             16
     The State makes reference to the defense of necessity, pointing

out its similarity to defense of a third person.36 The State

acknowledges the necessity defense adds the term “imminent harm”

and acknowledges the grammatical difference between “immediately

necessary” and “imminent harm.” However, the State then seeks to

equate them with the observation that when there is an imminent

harm action to avoid it is immediately necessary. However, what the

State does not address is that the same is not so certain if you reverse

order. An action may be, as here, immediately necessary, yet the harm

may not be so imminent. The Court of Appeals found the leaving with

the boys to be the act that created an immediate necessity, even though

the feared harm might not be imminent.37

     Finally, it should be remembered that all of these definitions are

viewed in the light most favorable to the defense38 and from the actor’s

point of view.39 The Appellant explained in detail why he thought his


     36
          State’s brief, pp. 17-18.
     37
          Henley v. State, supra at 116.
     38
          Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).
     39
          Ex parte Drinkert, 821 S.W.2d 953, 955 (Tex. Crim. App. 1991).

                                           17
sons were in danger if they left with his ex-wife and former mother in

law. He had new information which led him to believe that Douglas

and A. G. presented a greater danger to the boys than Brandy had

acknowledged or accepted. Her refusal to listen to him, to be informed

of new corroborative information, reasonably led him to believe that the

SAPCR court’s orders would not be obeyed. After all, Brandy perjured

herself in order to continue breaking one of the SAPCR court’s orders;

that she stop living with Douglas.40 Clearly, she did not take the threat

her boyfriend posed to her children seriously.

Response No. 2: The exclusion of evidence that was basic to the
Appellant’s right to confrontation and cross-examination, while
related to the defense of a third person, is an independent
ground for sustaining the ruling of the Court of Appeals.

     The State does not fully address the fact that the Court of Appeals

ruled that the exclusion of all of the evidence about the ongoing custody

fight and was a violation of the Appellant’s right to confrontation and

cross examination.

     In his second issue, Appellant argues that the trial court
     improperly limited his right to cross-examine and confront
     the witnesses against him by not allowing him to question


     40
          5 RR 86.

                                   18
     Brandy and her mother about the new allegations that had
     emerged during the children’s counseling concerning abuse
     during Brandy’s times of possession. We agree and hold that
     the trial court so erred.41

Even if Appellant were not entitled to the defense of a third person

defense, he was still entitled to impeach Brandy. A substantial part of

her motivations to testify as she did against the Appellant were

basically unrevealed. The State was allowed to sanitize their

complainant and even to argue, falsely, that there was no excuse for

Appellant’s attack on Brandy.42

     Appellant’s right to a new trial based on this violation of his

rights under the 6th Amendment43 should not be disturbed. As the

Court of Appeals pointed out, the right to present the defense of a third

person defense and the right to confront and cross examine the

complainant overlap, but both were errors of constitutional dimension.

     In his second issue, Appellant argues that the trial court
     improperly limited his right to cross-examine and confront
     the witnesses against him by not allowing him to question
     Brandy and her mother about the new allegations that had

     41
          Henley v. State, supra at 116 (Tex. App. 2014).
     42
          5 RR 128,135.
     43
          USCS Const. Amend. 6.

                                           19
     emerged during the children's counseling concerning abuse
     during Brandy's times of possession. We agree and hold that
     the trial court so erred.

     Appellant correctly argues that denial of the right of
     confrontation and cross-examination is an error of
     constitutional magnitude. And the trial court's error here
     was exacerbated by the State's jury argument.44

Even if the Court should rule that Appellant was not entitled to the

defense of a third person, depriving him of the right to effectively cross

examine Brandy and her mother constitutes an independent ground for

reversing the trial court not complained of by the State.

                                      PRAYER

     In accordance with the foregoing arguments and authorities, the

Appellant prays the court will affirm the Court of Appeals.

                                         Respectfully submitted,


                                         WILLIAM S. HARRIS
                                         Attorney and Counselor at Law
                                         307 West 7th Street, Suite 1905
                                         Fort Worth, Texas 76102
                                         Phone: (817) 332-5575
                                         Faxed: (817) 335-6060




     44
          Henley v. State, supra at 116 (Tex. App. 2014).

                                                            20
                                   Email: wmsharris.law@sbcglobal.net


                                   By:   /S/ Wm. S. Harris
                                         William S. Harris
                                         State Bar No. 09096700

                                   Attorney for Gregory Shawn Henley


                    CERTIFICATE OF SERVICE

     I certify that a true copy of the foregoing has been served on Mr.

John R. Messinger, Assistant State’s Attorney, and on Ms. Debra

Windsor, Assistant Criminal District Attorney, by use of the electronic

filing systems service function.

     Signed this the 17th day of August, 2015.



                                   /S/ Wm. S. Harris
                                   William S. Harris

                 CERTIFICATE OF COMPLIANCE

      I certify that the Word Perfect word count tool for this document
is 3882.

                                   /S/ Wm. S. Harris
                                   William S. Harris




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