                                                                                  ACCEPTED
                                                                              06-14-00204-CR
                                                                   SIXTH COURT OF APPEALS
                                                                         TEXARKANA, TEXAS
                                                                         6/5/2015 11:13:30 AM
                                                                             DEBBIE AUTREY
                                                                                       CLERK

                      NO. 06 – 14-00204 – CR

                                                         FILED IN
                                                  6th COURT OF APPEALS
         IN THE SIXTH DISTRICT COURT OF             TEXARKANA, TEXAS
                                                APPEALS
                    TEXARKANA, TEXAS              6/5/2015 11:13:30 AM
                                                      DEBBIE AUTREY
                                                          Clerk

                CLIFFORD BERNARD NELSON
                            Appellant,

                                 v.

                     THE STATE OF TEXAS
                               Appellee


On appeal from the County Court at Law No. 1 for Gregg County, Texas
                   Trial Court Case No. 2013-1871


               BRIEF OF THE STATE OF TEXAS


           – ORAL ARGUMENT NOT REQUESTED --

                                 CARL DORROUGH
                                 DISTRICT ATTORNEY
                                 GREGG COUNTY, TEXAS

                                 Zan Colson Brown
                                 Texas Bar No. 03205900
                                 Assistant District Attorney
                                 Gregg County, Texas
                                 101 East Methvin St., Suite 333
                                 Longview, Texas 75601
                                 Telephone: (903) 236–8440
                                 Facsimile: (903) 236–3701
                                    TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................... 1
INDEX OF AUTHORITIES .................................................................................... 3

SUMMARY OF THE ARGUMENT .................................................................... 10

ARGUMENT ........................................................................................................... 11
   1) Erica Minifield’s statement to police was admissible either as a
         present sense impression or as a statement made to enable
         officers to respond to an ongoing emergency, or to rebut
         Erica’s statement that she could not recall who attacked her. .................11
           A.     Standard of review: Was the Trial Court’s admission of
                  Erica’s recorded statement outside the zone of reasonable
                  disagreement and therefore an abuse of her discretion?....................11
           B.     The statement was an exception to hearsay rule because it
                  was her present sense impression. ......................................................13
           C.     Her statement to officers was made to enable them to
                  respond to an ongoing emergency. .....................................................14
           D. Although the State did not originally seek to introduce the
              police video as impeachment, that eventually became a part
              of her argument. ..................................................................................16
           E.     If a court admits evidence that is admissible under any rule
                  of law, she has not abused her discretion. ..........................................16
           F.     The improper admission of hearsay statement is not
                  reversible error if the same facts are admitted by other,
                  properly admitted evidence. ................................................................17
           G. Erica was present to testify and the defense was allowed to
              cross-examine her; the judge heard her testify and was free
              to disbelieve her testimony. .................................................................18
   2) The evidence was more than sufficient to support the
        conviction. ................................................................................................19
           A.      Standard of review: whether, viewing all the evidence in the
                  light most favorable to the judgment, could a reasonable fact

                                                               1
               finder have found all the necessary elements had been
               proved beyond a reasonable doubt. ....................................................20
         B.    Hypothetical jury charge contains the essential elements of
               the offense. ...........................................................................................20
         A.    The only disputed element is the identity of the person who
               inflicted the injuries to Erica, and ample evidence supports
               the finding that Clifford Nelson did it. ................................................21

CONCLUSION AND PRAYER ............................................................................ 24
CERTIFICATE OF SERVICE ............................................................................. 25

CERTIFICATE OF COMPLIANCE ................................................................... 26




                                                              2
                                       INDEX OF AUTHORITIES




                                                   Federal Cases
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) .. 13
Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)
     ..............................................................................................................….14, 15, 16
Jackson v. Virginia, 443 U.S. 307. 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)20, 21

                                                     State Cases
Anderson v. State, 717 S.W.2d 622 (Tex. Crim. App. 1986) ...................................... 19
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) ........................................ 20
Garcia v. State, 212 S.W.3d 877 (Tex. App.—Austin 2006, no pet.) ......................... 15
Malik v. State, 953 S.W.2d 234 240 (Tex. Crim. App. 1997) ..................................... 20
Martinez v. State,236 S.W.3d 361, 375, 2007 Tex. App. LEXIS 5712, 2007 WL
   2067852, at *1, 9--10 (Tex. App.--Fort Worth 2007, no pet. h.) ........................ 15
Montgomery v. State, 810 S.W.2d 372(Tex. Crim. App. 1990 ................................... 12
Mosley v. State, 141 S.W.3d 816, 830 (Tex. App.--Texarkana 2004, pet. ref'd). ..... 11
Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) ......................................... 21
Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990) ........................................ 16
Santacruz v. State, 237 S.W.3d, 822, 829 pet. ref’d untimely filed.) ................. 14, 15
Simmons v. State, 282 S.W.3d 504 (Tex. Crim. App. 2009)....................................... 21
State v. Story, 445 S.W.3d 729 (Tex. Crim. App. 2014) ....................................... 17, 19
Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002) ............................................ 12

                                                     State Rules
Tex R. App. Proc, Rule 9 (2012) ................................................................................ 26
Tex. R. Evid. 803 .................................................................................................. 13, 22

                                                                  3
                            STATEMENT OF FACTS



      Appellant Clifford Nelson was charged by complaint and information for

assaulting Erica Minifield on or about April 30, 2013; Ms. Minifield, also known as

Erica Akins, was alleged to be a member of Nelson’s family and household and

someone with whom he had a dating relationship. CR 5-6.

      Erica Rochelle Minifield Akins1 testified she and Nelson had two children,

ages 18 and 19. 2 RR 39.

      On or about the date in question, she was severely beaten, and the police took

a video of her injuries. SX 1. The video, created by Officer Trevor Yates, was

admitted over several objections, but the objections were limited to the audio

portion, specifically the statement by Erica that Clifford Nelson had been the person

who attacked her with a stick. 2 RR 13-20. The prosecutor, Pam Ibeh, and officer

Yates established that the camera worked, Yates was capable of operating it, Yates

had reviewed it, it fairly and accurately represented what he saw that night, and it

had not been altered in any way. 2 RR 13-16. Over defense objection that the

proper predicate had not been laid, the court admitted the video. 2 RR 18.




      1
        The indictment and various witnesses referred to this witness by the name
Erica Minifield, but she used the last name Akins. For consistency’s sake, she will
be Erica in this brief.
                                            4
      Then defense counsel objected to the video on hearsay grounds, and

Crawford grounds. 2 RR 17.      The Court overruled the objection because the

declarant had been present in the courtroom and had been sworn in as a witness. 2

RR 17-18.

      Next, Nelson’s attorney called it premature impeachment or bolstering, and

hearsay, to which the prosecutor responded that the recording was made in the

course of law enforcement responding to this emergency, so it was made right after

it happened, which made it an exception to the hearsay rule. 2 RR 18.

      Defense counsel then challenged the lack of evidence on the amount of time

that had passed, and reiterated his Crawford, confrontation, premature impeachment

and bolstering, adding “confrontation, due process, civil protection”. 2 RR 19.

          The prosecutor then suggested that the statement was a present sense

impression because the officer had testified to seeing fresh blood 2 when he first saw

Erica and the video was made just after she arrived at the hospital and she described

an event that had occurred immediately before she told it. 2 RR 19. The Court

overruled the objection, admitting the video, and the defense attorney established a

running objection to the audio portion of the video. 2 RR 19.




      2
        The video was eventually played, showing bright red blood on her scalp,
and darker, clotted blood elsewhere—the elbow and the shins. 2 RR 19-20; SX 1
                                           5
      When technical difficulties prevented showing the video at that point, the

Court and prosecutor had a conversation in which they established that Ms. Ibeh

believed Erica’s testimony may differ somewhat from the contents of the video, and

the prosecutor would offer the video to rebut her testimony if Erica’s testimony was

different. 2 RR 24.

      When Ms. Ibeh attempted to get Officer Yates to expound on his having seen

fresh blood, the Court sustained a defense objection to establishing the timing of the

statement on the basis of the blood’s appearance. 2 RR 27.

      The judge then watched the video, after which she heard and overruled a

renewed Crawford objection to it because it was testimonial. 2 RR 28. To his

continued hearsay objection, she responded “And this is a bench trial. And in the

interest of time, I’ve been advised that this witness will testify and that she may

change her story from this. So if, at the end of this case, you’re right, then we’ll

reconsider all that, okay? 2 RR 28-29.

      The remainder of the evidence regarding Nelson’s being the attacker came

from the following:

       Dr. Harold Taylor, ER physician, who, in the course of diagnosing and

treating Erica, learned that she had been hit with a stick by Clifford Nelson. 2 RR

33. The defense objection to hearsay was overruled as an exception for medical

treatment 2 RR 33.

                                             6
      Erica then testified, and as predicted, her testimony contradicted what she

had said in the video to police on the night the event happened. 2 RR 39, 40. Her

trial testimony was that nothing happened on April 28, 2013. She did tell the Court

she had been absent from a July hearing in this case because she had been in the

hospital for broken ribs. 2 RR 56. She claimed not to know her assailant on that

occasion either. 2 RR 56.

      When shown the pictures of herself with injuries, she recognized herself in

the pictures, but refused to admit she knew who did this to her. 2 RR 44-45; SX 2a,

2b, 2c, 2d. Even after being shown the video, SX 1, she still claimed not to

remember who injured her. 2 RR 46. She recalled talking with Rhonda Lilly on the

day after the assault, but denied being able to recall telling her who caused the

injuries. 2 RR 47. She acknowledged that the injuries occurred in Longview, Gregg

County. 2 RR 47. And she described her injuries as painful. 2 RR 47-48.

      On cross, Erica stated Clifford Nelson did not do this to her; on redirect, she

said she was not sure it was Clifford; and on recross examinations she was sure he

did not do it, and she was not sure who did it, but she knew it was to Clifford. 2 RR

49, 54, 59-60.

      Following Erica’s testimony, Jason Barnes, the paramedic with the Longview

Fire Department who responded to the call for assistance for Erica, testified that

Erica said her assailant (her baby daddy) had used his fist and a stick similar to a

                                             7
walking stick. 2 RR 61-62, 64. She was conscious and communicating and stable

at the time she made those statements. 2 RR 66.

      Dr. Taylor was recalled to impeach Erica’s testimony about two hospital

visits just prior to the trial, on or about July 8 and 18, 2014. 2 RR 69, 71. Clifford

Nelson had accompanied Erica to the first of those visits, and had given most of the

history, claiming that Erica had been kicked by a horse. 2 RR 70, 72. Dr. Taylor

asked that police be notified because her injuries were not at all consistent with a

horse kick. 2 RR 71. When Nelson was out of earshot during her CT scan, Erica

told Eric Pope that her injuries had been caused by the man who had brought her in,

and Pope identified Nelson as the man who had been with her. 2 RR 86-89. Her

injuries were a collapsed lung, fractured ribs, a concussion, and contusion to the

forehead. 2 RR 70-72. In her testimony, Erica had said she had been assaulted near

Grandy’s. 2 RR 56.

      Rhonda Elaine Daniels Lilly, who prefers the name Daniels, testified she had

been present when Erica was assaulted in April, 2013. 2 RR 74. Eventually she

admitted telling police truthfully that Erica had told Daniels that Clifford Nelson,

the father of at least some of Erica’s children, had been the attacker. 2 RR 80-84.

      Brooke King, director of programs and services at the Women’s Center of

East Texas, 3 RR 66. She testified only to her experience with family violence




                                             8
victims in general, not to anything specific to Erica. She gave her opinion on why a

victim might give exonerating testimony about an actual attacker.




                                            9
                       SUMMARY OF THE ARGUMENT

      Admission of Erica Minifield’s statement to police was not reversible error. It

was admissible under at least one of three theories: it was a present sense

impression; it was a statement made to enable police to respond to an ongoing

emergency, or it was offered to rebut her anticipated statement that she could not

recall who attacked her. She was present and available to testify. Whichever theory

of admissibility the judge selected, her ruling to admit is not reversible if the

statement was admissible under any rule of law, even if the trial court states the

wrong rule. Improper admission of a hearsay statement is not reversible if the same

facts are admitted by other, properly admitted evidence, as they were in this case,

by three other witnesses.The judge heard Erica’s testimony and the testimony of

others rebutting her testimony, and chose to believe the others over Erica.

      Viewing all the evidence in the light most favorable to the judgment, a

reasonable fact finder could easily have found all the necessary elements had been

proved beyond a reasonable doubt. The only contested element was the identity of

the attacker. Erica’s testimony was contradicted by three witnesses, two

disinterested medical personnel and a friend of Erica’s, all of whom testified that

Erica had told her Nelson was the attacker.




                                              10
                                    ARGUMENT



   1) Erica Minifield’s statement to police was admissible either as a present
      sense impression or as a statement made to enable officers to respond to
      an ongoing emergency, or to rebut Erica’s statement that she could not
      recall who attacked her.


      In Appellant’s first point of error, he questions whether that the trial court

erred in allowing the State to impeach Erica Minifield Akins with her prior

inconsistent statement.    The State originally offered the statement as a present

sense impression and as a statement made to enable officers to respond to an

ongoing emergency. 2 RR 18, 19. The State also eventually argued that the purpose

of offering that statement was to impeach Erica, if, as the State had predicted, did

testify that she didn’t recall telling officers that Clifford Nelson was her attacker. 2

RR 24.



      A. Standard of review: Was the Trial Court’s admission of Erica’s
         recorded statement outside the zone of reasonable disagreement and
         therefore an abuse of her discretion?


      The admission of hearsay evidence is a question for the trial court to resolve

and its determination will be reviewed under an abuse of discretion standard.

Mosley v. State, 141 S.W.3d 816, 830 (Tex. App.--Texarkana 2004, pet. ref'd). A

trial court’s decision will not be disturbed unless it lies outside the zone of
                                              11
reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1990 on reh'g (June 19, 1991)).

      On appeal, the trial court's decision to admit evidence is reviewed under an

abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App.

2002). As long as the trial court's ruling is within the zone of reasonable

disagreement, the appellate court will not intercede. Montgomery, 810 S.W.2d,

391(op. on reh'g). It is only where the appellate court can say with confidence that

by no reasonable perception of common experience can it be concluded that the

proffered evidence has a tendency to make the existence of a fact of consequence

more or less probable than it would otherwise be that the trial court has abused its

discretion in admitting the evidence. Id.

      The United States Supreme Court has said, regarding statements in response

to police interrogation:

       Without attempting to produce an exhaustive classification of all
       conceivable statements--or even all conceivable statements in response
       to police interrogation--as either testimonial or nontestimonial, it
       suffices to decide the present cases to hold as follows: Statements are
       nontestimonial when made in the course of police interrogation under
       circumstances objectively indicating that the primary purpose of the
       interrogation is to enable police assistance to meet an ongoing
       emergency. They are testimonial when circumstances objectively
       indicate that there is no such ongoing emergency, and that the primary
       purpose of the interrogation is to establish or prove past events
       potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

                                            12
         Pursuant to the Crawford case, a trial judge must make an ad hoc, case-Id.

statement is testimonial, the prosecution must either produce the declarant, or show

that (1) the declarant is unavailable and (2) the defendant had an opportunity to

question the declarant. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158

L. Ed. 2d 177 (2004). Therefore, even if the judge had considered the statement

testimonial, as long as the State presents the declarant to testify and to be subjected

to cross-examination, her statement is admissible, or, if inadmissible, harmless

error.


         B. The statement was an exception to hearsay rule because it was her
            present sense impression.


         Rule 803 contains exceptions to the rule against hearsay regardless of

whether the declarant is available as a witness. Present sense impressions are not

excluded. Tex. R. Ev. 803 (a) (1). A present sense impression is a “statement

describing or explaining an event or condition, made while or immediately after the

declarant perceived it.” Id.

         State’s Exhibit One was a video recorded by Officer Trevor Yates. The

police were trying to find out why Erica had been brought to the hospital. She was

able to communicate very clearly. She told them Clifford Nelson, her kids’ father,

had hit her with his fist and a short stick about the size of her hand in thickness.

She said she had blacked out more than once, and her lack of consciousness was
                                             13
caused by being hit with the stick. She said that she and Nelson were “still

together.” She said she wanted to press charges. She told them the location of the

attack.     He had always been jealous of her, and often accused her of being with

other men, and she said that jealousy of “some dudes” in a truck was his alleged

provocation on this occasion. She said her injuries were “all over” her body. Officer

Yates focused the camera on the blood on her face, her scalp, her elbow, and her

shins. SX 1. She added, at the end, that she could not believe that he had done this

to her.

          C. Her statement to officers was made to enable them to respond to an
             ongoing emergency.


          Defense counsel made an issue at trial of the fact that time had passed since

the assault and Erica had been moved twice since the assault. The 14th Court of

Appeals has discussed this issue. Santacruz v. State, 237 S.W.3d 822, 828-829

(Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). The Santacruz opinion says

that the caller does not have to be describing events as they happened, with the

perpetrator present for the statements to be “made under circumstances objectively

indicating that the primary purpose of the interrogation was to enable police

assistance to meet an ongoing emergency. Id, citing Davis, 547 U.S. 813 The

Santacruz case also cites cases from three other Courts of Appeals in which

statements to police about past events had been held to be nontestimonial.


                                               14
      Courts applying Davis have held statements to be nontestimonial even
      though they were not describing events as they were happening. See,
      e.g., Martinez v. State,236 S.W.3d 361, 375, 2007 Tex. App. LEXIS
      5712, 2007 WL 2067852, at *1, 9--10 (Tex. App.--Fort Worth 2007,
      no pet. h.) (holding that statements made by appellant's son were
      nontestimonial under Davis, even though they described past events in
      which appellant gave son a bag to hide in his pants); Garcia v. State,
      212 S.W.3d 877, 883-84 (Tex. App.—Austin 2006, no pet.)(holding
      that statements made by wife were nontestimonial under Davis, even
      though they described past events in which her husband had forcibly
      abducted his child in violation of a court order); Delacueva v. State,
      No. 14-05-01115-CR, 2006 Tex. App. LEXIS 10563, 2006 WL
      3589482, at *3 (Tex. App.--Houston [14th Dist.] Dec. 12, 2006, pet.
      ref'd) (not designated for publication) (holding that statements made by
      appellant's girlfriend were nontestimonial under Davis, even though
      they described past events in which boyfriend had "beat up"
      girlfriend).


Santacruz v. State, 237 S.W.3d 822, 829 (Tex. App. 2006 pet. ref’d untimely filed.)

             In this case the circumstances were that Erica was still at the hospital

seeking medical treatment--not at the police station. The officers, in order to assess

their situation, needed to know with whom they would be dealing, whether the

perpetrator was a threat to the officers’ safety, and whether there was a possible

continuing danger to the victim or other potential victims. She and her husband

were still together. He had not been apprehended. Until she made the statement, he

had not been named as the perpetrator. The police did not know whom to arrest, or

even whether she wanted anybody arrested.         These questions were not for a

testimonial purpose, but for the purpose of responding to an ongoing emergency.


                                            15
      D. Although the State did not originally seek to introduce the police
         video as impeachment, that eventually became a part of her
         argument.


      Defense Counsel argued that the prosecutor had not laid the proper predicate

for impeachment by allowing Erica to testify first before offering the video. The

judge heard this objection and may have thought the prosecutor got the evidence out

of order, but the judge commented that this was a bench trial, suggesting that a jury

might have been confused by the order of evidence presentation, but the judge

herself was not. In the interest of saving time, the judge allowed the video to come

in with only the predicate of Officer Yate’s testimony regarding the quality of the

camera, the operator, and that he had reviewed the video and it accurately depicted

the events he observed that night. 2 RR 28-29. Eventually, Erica did testify that she

had no recollection of her attacker, even after she was shown the video. If this was

error, it was not reversible error, as other witnesses’ testimonies were properly

admitted proving the same element—that Nelson was the attacker.



      E. If a court admits evidence that is admissible under any rule of law,
         she has not abused her discretion.


      If a trial judge's decision to admit certain testimony is correct on any theory

of law applicable to the case, it will be upheld. This is true whether or not she states

the correct ground. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
                                              16
The Court of Criminal Appeals cited Romero for this same proposition as recently

as 2014: “We will uphold the judgment if it is correct on some theory of law

applicable to the case, even if the trial judge made the judgment for a wrong

reason.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014).



      F. The improper admission of hearsay statement is not reversible error
         if the same facts are admitted by other, properly admitted evidence.


      The improper admission of hearsay evidence “does not constitute reversible

error if the same facts are proved by other, properly admitted evidence.” Anderson

v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986).

      In addition to the police video of Erica’s stating that Clifford Nelson had

assaulted her, the State also showed the she told Dr. Taylor, an emergency room

doctor at Longview Regional, who testified on the 28th or 29th of 2013, Erica also

told him she got her injuries when Clifford Nelson hit her with a stick. 2 RR 33.

The defendant’s objection to hearsay was overruled as an exception for medical

treatment. 2 RR 33.

      Furthermore, Jason Barnes, the paramedic with the Longview Fire

Department, who responded to the call for assistance for Erica on April 28, 2013,

testified that Erica told him her assailant (her baby daddy) had used his fist and a

stick similar to a walking stick.    2 RR 61-62, 64.      She was conscious and

                                           17
communicating and stable at the time she made those statements. 2 RR 66. Defense

objection to hearsay was overruled as the statement was made to obtain medical

treatment. 2 RR 64-65.

      Finally, Rhonda Elaine Daniels Lilly, Erica’s friend who had been with her at

the time of the assault, was called to rebut Erica’s testimony that Erica did not recall

telling Daniels who had assaulted her. 2 RR 47.

      Daniels at first testified that she did not recall hearing Erica say who had

assaulted her, but after having her memory refreshed by the police recording,

acknowledged that she had told police that Erica had told Daniels that Nelson was

the assailant. 2 RR 74, 77, 80. Daniels continued to claim that she had not seen the

assailant that day. When pressed, however, Daniels testified she had not been lying

to police about Erica’s naming Nelson as her attacker. 2 RR 84.

      Thus, with three other witnesses testifying to the fact that Erica had named

Nelson as her attacker, the admission of the video of Erica saying the same thing to

police was not reversible error.

      G. Erica was present to testify and the defense was allowed to cross-
         examine her; the judge heard her testify and was free to disbelieve
         her testimony.


      The fact finder in this case was the judge, not a jury. The State made the

Court aware in opening argument that the State expected Erica’s trial testimony to

differ from her video statement to the police. Erica was present and had been sworn,
                                              18
but had not testified, at the time the video of her hospital statement to police was

shown, over the objection of defense counsel. In her subsequent testimony, as

predicted in opening argument, Erica was unable or unwilling to name her attacker,

even though she knew she had named her attacker in her statement to police, to the

ER doctor, to the EMT, and to her friend Daniels.

      The judge was the sole trier of fact, and an appellate court gives almost total

deference to a trial judge’s determination of historical facts. Story, 445 S.W.3d, at

732. The trier of facts may believe some, all, or none of a complainant’s testimony.

This judge chose to believe what Erica had said at or near the time of the offense,

rather than what Erica was saying at trial. That belief is totally supported by

evidence in the record, whether it was admissible or not. Erica’s credibility was

severely tested during this trial. Numerous inconsistencies were shown, and

testimony was adduced that a family violence victim often recants her initial story.

      Appellant’s first issue should be rejected.

2)    The evidence was more than sufficient to support the conviction.


      Appellant argues that there was conflicting evidence, and that without Erica’s

prior inconsistent statement to police, there is no evidence of Nelson’s guilt.




                                             19
      A.      Standard of review: whether, viewing all the evidence in the light
             most favorable to the judgment, could a reasonable fact finder
             have found all the necessary elements had been proved beyond a
             reasonable doubt.


      "Once a defendant has been found guilty of the crime charged, the

factfinder's role as weigher of the evidence is preserved through a legal conclusion

that upon judicial review all of the evidence is to be considered in the light most

favorable to the prosecution.” Jackson v. Virginia, 443 U.S. 307. 319, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979). The Jackson Court went further to say, a "court

faced with a record of historical facts that supports conflicting inferences must

presume--even if it does not affirmatively appear in the record--that the trier of fact

resolved any such conflicts in favor of the prosecution, and must defer to that

resolution.” Id. at 326.



      B.     Hypothetical jury charge contains the essential elements of the
             offense.

      Sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997).

      All evidence, properly or improperly admitted, is reviewed. Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence is as



                                             20
probative as direct evidence, and circumstantial evidence alone can be sufficient to

establish guilt. Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995).


      C.      The only disputed element is the identity of the person who
              inflicted the injuries to Erica, and ample evidence supports the
              finding that Clifford Nelson did it.
                                          .

      The only deficiency of evidence raised on appeal is the element of who

caused Erica’s injuries: “If no account is given to Erica’s recorded statement, there

is no overriding evidence of guilt of Clifford of the assault as charged in the

information.” Appellant’s brief at 9.

      The fact finder alone determines the credibility of witnesses as well as the

weight to be attached to their testimony. Jackson, 443 U.S. at 319. When the record

supports conflicting inferences, the fact finder is presumed to have resolved the

conflicts in favor of the verdict, and such a resolution is accorded deference by the

appellate courts. Id.

      “[W]hen there are two permissible views of the evidence (one tending to

connect the defendant to the offense and the other not tending to connect the

defendant to the offense), appellate courts should defer to that view of the evidence

chosen by the fact-finder.” Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim.

App. 2009).




                                              21
         The hypothetically correct jury charge in this case would have several

elements:

               1. Clifford Nelson
               2. intentionally, knowingly, or recklessly
               3. caused bodily injury
               4. to Erica Minifield
               5. Nelson and Erica had children together.


         In this appeal, only the first element listed above is contested. The following

is a list of evidence that Clifford Nelson is the person who caused the injuries to

Erica:

         Jason Barnes, the Longview paramedic who responded to the call for

assistance for Erica, testified she told him that her assailant, (her “baby daddy”) had

used his fist and a stick similar to a walking stick. 2 RR 61-62. When she made

those claims, she was conscious and communicating and stable. 2 RR 66. Defense

counsel’s objection to hearsay was overruled because Erica’s statement to the

doctor was made for and is reasonably pertinent to--medical diagnosis or treatment,

and describes medical history; past or present symptoms or sensations; their

inception; or their general cause. 2 RR 64-65; Tex. R. Evid. 803.

         Dr. Taylor, emergency room doctor, testified that Erica told him that Clifford

Nelson had caused her injuries by hitting her with a stick. 2 RR 33. Defense

counsel’s objection to hearsay was overruled because Erica’s statement was made

for medical diagnosis or treatment. 2 RR 33; Tex. R. Evid. 803.
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      Erica’s friend, Rhonda Daniels Lilly (who prefers just Daniels) had trouble

recalling details of the night the injuries occurred and her subsequent phone call

with police. 2 RR 77. She also failed to recall a next-day conversation with Erica. 2

RR 77. She did not recall telling police that Erica had Daniels who did it to her. 2

RR 77. She had to have her memory refreshed by hearing (outside the presence of

the judge) a recording of her telephone conversation with the police. 2 RR 77-79.

After hearing it, she acknowledged telling the police that Erica had named Clifford

Nelson as her attacker. 2 RR 80. She denied lying to police about Erica’s having

named Nelson. 2 RR 84.

      The above three persons testified that Erica had told each of them, in separate

conversations, that Clifford Nelson, her children’s father, had caused the injuries.

The judge overruled hearsay objections each time one was made with these

witnesses. The appellant’s brief does not challenge the admissibility of these

statements. Even without the police video of her statement in which Erica named

Nelson as her attacker, evidence from three other witnesses was before the court

that Erica had previously named Nelson as her attacker. The judge was free to

believe these witnesses and disbelieve Erica’s testimony that she did not know or

recall the identity of her attacker.

      The State requests that this Court defer to the judge’s decision as to

credibility and weight to be given to the witnesses’ testimony, as well as to the

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judge’s resolution of conflicting pieces of evidence. Even without the police video

of the hospital interview with Erica, ample evidence proved Nelson was guilty of

the assault-family violence. She named him as her attacker to three other people.



                         CONCLUSION AND PRAYER

      In conclusion, Nelson’s conviction should be affirmed.        Erica’s recorded

statement to police was admissible either as a statement to aid officers in

responding to an ongoing emergency, as a present sense impression or to impeach

her testimony at trial which the State knew would contradict the recorded statement.

If the judge committed error by admitting it before the declarant testified, it was

harmless error, because there was no jury to be confused by the error of which came

in first. Erica’s failure to recall who attacked her was called into serious question

by medical personnel and her friend. There was ample evidence from which a

reasonable fact finder could find, beyond a reasonable doubt, that Clifford Nelson

struck Erica Minifield with a stick and caused her bodily injury. The point of error

should be rejected.




                                            24
      For the foregoing reasons, the State prays that the judgment of the Trial Court

be affirmed.

                                             Respectfully Submitted,

                                             /s/Zan Colson Brown
                                             Zan Colson Brown
                                             Texas Bar No. 03205900
                                             Assistant District Attorney
                                             101 East Methvin St., Suite 333
                                             Longview, TX 75601
                                             Telephone: (903) 236–8440
                                             Facsimile: (903) 236–3701


                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing has been
forwarded to counsel of record by electronic service to:

      Ebb Mobley
      P.O. Box 2309
      Longview, Texas 75606
      Ebbmob@aol.com


      this 5th day of June, 2015.

                                             /s/ Zan Colson Brown
                                             Zan Colson Brown
                                             Assistant District Attorney




                                            25
                       CERTIFICATE OF COMPLIANCE


      I certify that the foregoing document complies with Texas Rules of
Appellate Procedure, Rule 9 (2012) regarding length of documents, in that
exclusive of caption, identify of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement of
issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and appendix, it
consists of 4771 words.

                                              /s/ Zan Colson Brown
                                              Zan Colson Brown
                                              Assistant Criminal District Attorney




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