ACCEPTED 06-14-00204-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 3/19/2015 1:43:02 PM DEBBIE AUTREY CLERK
NO. 06-14-00204-CR
FILED IN ************** 6th COURT OF APPEALS TEXARKANA, TEXAS 3/19/2015 1:43:02 PM IN THE COURT OF APPEALS DEBBIE AUTREY Clerk SIXTH APPELLATE DISTRICT OF TEXAS
TEXARKANA TEXAS
**********
CLIFFORD BERNARD NELSON, Appellant
VS.
THE STATE OF TEXAS, Appellee
Appealed from Gregg County Court at Law No. 1 Trial Court No. 2013-1871
__________________________________________________________________
BRIEF OF APPELLANT __________________________________________________________________
EBB B. MOBLEY State Bar # 14238000 Attorney at Law 422 North Center St.-Lower Level P. O. Box 2309 Longview, TX 75606 Telephone: (903) 757-3331 Facsimile: (903) 753-8289 ebbmob@aol.com
ATTORNEY FOR APPELLANT NO.06-14-00204-CR
__________________________________________________________________
IDENTITY OF PARTIES AND COUNSEL Pursuant to T.R.A.P. 38.1(a) __________________________________________________________________
Appellant: CLIFFORD BERNARD NELSON Gregg County Jail
Appellant's CLEMENT DUNN P.O. Box 562 trial counsel: Attorney at Law Longview, Texas 75606
State's trial PAMELA IBEH 101 East Methvin, Ste. 303 counsel: Assistant District Attorney Longview, Texas 75601
Trial Judge: HON. REBECCA SIMPSON 101 East Methvin, Ste. 416 Gregg County Court at Law No. 1 Longview, Texas 75601
Appellant's EBB B. MOBLEY P. O. Box 2309 counsel on Attorney at law Longview, TX 75606 appeal:
State's ZAN COLSON BROWN 101 East Methvin, Ste. 303 counsel Assistant District Attorney Longview, Texas 75601 on appeal:
Page 1 of 11 TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ISSUE NUMBER ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Did the trial court err in allowing the State to impeach Erica Minifield with her prior inconsistent statement?
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8
ISSUE NUMBER TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Is there sufficient evidence to support the conviction in this case?
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9-10
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Page 2 of 11 INDEX OF AUTHORITIES
Cases
Bays v. State, No. 06-10-0045-CR, 2011 Tex.App. LEXIS 95 affirmed at 396 S.W.3d 580 (Tex.Crim.App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) . . . . . . . . . . . . . . . . . . . .9
Burnett v. State, 88 S.W.3d 633, 637-38 (Tex.Crim.App. 2002) . . . . . . . . . . . . . . . . . 10
Carter v. State, 150 S.W.3d 230, 241 n. 13 (Tex.App. - Texarkana 2004, no pet.) . . 8
Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . .9
Crawford v. Washington, 541 U.S. 361 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Gipson v. State, 844 S.W.2d 738 (Tex.Crim.app. 1992) . . . . . . . . . . . . . . . . . . . . . . . .8
Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.App. - Texarkana 2010, pet. ref’d) . . .9
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . . . 9
Hughes v. State, 4 S.W.3d 1 (Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Jackson v. Virginia, 443 U.S. 307, 319 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000) . . . . . . . . . . . . . . . . .10
Mumphrey v. State, 155 S.W.3d 651, 657 n. 1 (Tex.App. - Texarkana 2005, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Winfried Warren Thomas v. State, No. 06-13-00209-CR, slip op. April 25, 2014, 2014 Tex.App. LEXIS 4512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9-10
Rules
Texas Disciplinary Rule of Professional Conduct 3.09 . . . . . . . . . . . . . . . . . . . . . . . . .7
Texas Rule of Appellate Procedure 44.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Texas Rule of Evidence 607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Texas Rule of Evidence 801(e)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Texas Rule of Evidence 803 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Texas Rule of Evidence 803(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..6
Texas Rule of Evidence 803(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Page 3 of 11 STATEMENT OF THE CASE
This is an appeal from a conviction for the misdemeanor offense of assault
causing bodily injury-family violence. CLIFFORD BERNARD NELSON was tried
and convicted after a bench trial before the Honorable Rebecca Simpson presiding in
the Gregg County Court at Law No. 1. Appellant was sentenced by the judge to 350
days in jail and a $500.00 fine. CR-68.
For clarity, THE STATE OF TEXAS will be referred to as "the State", and
CLIFFORD BERNARD NELSON will be referred to as "Clifford" or "Appellant."
Erica Minifield Akin will be referred to as “Erica”.
ISSUES PRESENTED
ISSUE NUMBER ONE
Did the trial court err in allowing the State to impeach Erica Minifield with her
prior inconsistent statement?
ISSUE NUMBER TWO
Is there sufficient evidence to support the conviction in this case?
Page 4 of 11 STATEMENT OF FACTS
On April 28, 2013, Erica Minifield was taken by ambulance to Longview
Regional Hospital at the insistence of Officer Trevor Yates of the Longview Police
Department. 2 RR 12. Dr. Harold Taylor observed a laceration on Erica’s scalp,
multiple contusions and superficial lacerations to the left side of her face, her right
arm and elbow, and to her right leg. 2 RR 32.
Erica told Dr. Taylor that Clifford Nelson hit her with a stick. 2 RR 33. Erica
was evaluated, examined, her wounds were cleaned and dressed, and her frontal scalp
laceration was stapled. 2 RR 34. Erica gave an audio/video recorded statement
implicating Clifford at the emergency room at the hospital. 2 RR 13-16, 7 RR SX1.
At trial Erica testified that Clifford is the father of her 18 and 19 year old
children, and they are still together. Erica stated nothing happened to her on April
28, 2013. 3 RR 39. On that day she did go to Sixteenth Street Park with Rhonda
Lilly and Chad Daniels. 2 RR 40. Erica identified photographs of the injuries she
had suffered and had been treated for at Longview Regional Hospital. 2 RR 46.
But Erica was not sure who injured her. 2 RR 45. She did not recall telling
anyone who hit her. 2 RR 45. After reviewing the State’s video of her statement to
officers at the Emergency Room she still did not remember who hit her. 2 RR 46.
On cross-examination Erica repeatedly denied that Clifford injured her. After
being warned by the judge about the perils of perjury at the request of the State, Erica
still testified that Clifford Nelson did not inflict the injuries reflected in the
photographs admitted as State’s Exhibits 2 a,b,c,and d. 2 RR 46-54.
Page 5 of 11 ISSUE NUMBER ONE
Did the trial court err in allowing the State to impeach Erica Minifield with her
SUMMARY OF THE ARGUMENT
When a witness is impeached with a prior inconsistent statement, that
statement is being offered not for its truth but to show that the witness lacks
credibility. Under Texas Rule of Evidence 801(e)(1)(A), a prior inconsistent
statement “given under oath subject to the penalty of perjury at a trial, hearing, or
other proceeding except a grand jury proceeding in a criminal case, or in a
deposition” may be offered for the truth of the matter asserted in that statement if the
declarant testifies at the trial or hearing and is subject to cross-examination about the
statement. Erica’s prior recorded hospital interview was not under oath, and her
statement is not substantive evidence.
ARGUMENT AND AUTHORITIES
RULES OF EVIDENCE AT ISSUE
Texas Rule of Evidence 803 provides that certain statements are not excluded
by the heresay rule even though the declarant is available as a witness.
TRE 803(3) provides for possible admissibility of a statement of the
declarant’s then existing state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the fact remembered or believed
unless it relates to the execution, revocation, identification, or terms of declarant’s
will.
TRE 803(4) provides for possible admissibility of statements made for
purposes of medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception or general character of the
Page 6 of 11 cause or external source thereof insofar as reasonably pertinent to diagnosis or
treatment.
ANALYSIS
The State’s first witness at trial was Longview Police Officer Trevor Yates.
2 RR 10. Minutes into his testimony the State sought to enter into evidence a “family
violence video” of a statement by Erica at the emergency room at Longview Regional
Hospital. 2 RR 13-14. Immediate objection by the defendant’s counsel - 2 RR 16 -
was overruled by the trial judge. 2 RR 16. The State specifically stated that the
purpose of admitting the video was impeachment of Erica, who had not yet testified.
The State offered no specific response to defense objection that the video was hearsay
and its admission would violate the defendant’s right to confront Erica.
The Court watched the video at 2 RR 27, and remarked cryptically that the
proceeding was a bench trial. 2 RR 28.
The credibility of a witness may be attacked by any party, including the party
calling the witness TRE 607. But the State’s right to impeach its own complaining
witness does not extend to employment of such impeachment as a subterfuge to get
outright inadmissable hearsay evidence before the fact finder. See Hughes v. State,
4 S.W.3d 1 (Tex.Crim.App. 1999). The State effectively threw a “skunk in the jury
box” before its only eyewitness ever testified to any facts leading to proof of an
offense. The State made no claim of surprise, and even anticipated recantation by
Erica. 2 RR 24. This trial tactic by the State is clearly questionable, and subjects a
reluctant victim to intimidation of criminal prosecution if she does not testify to suit
the State. The State should have no interest in whether Clifford Bernard Nelson is
prosecuted or convicted or aquitted. Indeed the State is charged to see that justice is
done, and not simply be an advocate. Texas Disciplinary Rule of Professional
Conduct 3.09.
Page 7 of 11 HARMLESS ERROR
After Gipson v. State, 844 S.W.2d 738 (Tex.Crim.App. 1992), an appellant is
entitled to have his claim of error resting on an action by a trial judge in a bench trial
treated the same as such a claim in an appeal from a conviction in a jury trial. The
appellate court must consider on the merits whether the trial court erred in admitting
the evidence. The same analysis is required as used in appeals from jury trials. If
error is found, the appellate court should consider whether the error is harmless under
Rule of Appellate Procedure 44.2(a).
TRAP 44.2(a) provides that if the appellate record in a criminal case reveals
constitutional error that is subject to harmless error review, the court of appeals must
reverse a judgment of conviction or punishment unless the court determines beyond
a reasonable doubt that the error did not contribute to the conviction or punishment.
In Crawford v. Washington, 541 U.S. 361 (2004) the United States Supreme
Court held that a witness’s out-of-court testimonial statement to law enforcement
officials is barred by the Confrontation Clause - even if the trial judge found it had
particularized guarantees of trustworthiness - unless the defendant had a prior
opportunity to cross examine the witness and the witness is unavailable to testify at
trial. This court on at least two occasions has held that Crawford is not applicable
if the witness testifies at trial. See Carter v. State, 150 S.W.3d 230, 241 n. 13
(Tex.App. - Texarkana 2004, no pet.) and Mumphrey v. State, 155 S.W.3d 651, 657,
n. 1 (Tex.App. - Texarkana 2005, pet. ref’d).
At the point of offer, objection to and receipt into evidence of the emergency
room video, whether Erica would testify and what she would say was a matter of
speculation, if not anticipation. Admission of the video was error.
Page 8 of 11 ISSUE NUMBER TWO
Is there sufficient evidence to support the conviction in this case?
Rigorous legal sufficiency review focuses on the quality of the evidence
presented. The evidence in this case is in conflict as to who inflicted the injuries to
Erica. 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.
In evaluating the legal sufficiency of the charged offense, all the evidence is
reviewed in the light most favorable to the trial court’s judgment to determine
whether any rational jury could have found the essential elements of the crime beyond
a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v. State, 305 S.W.3d
859, 863 (Tex.App. - Texarkana 2010, pet. ref’d). A rigorous legal sufficiency
review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917
(Cochran, J., concurring). Legal sufficiency is examined under the direction of the
Brooks opinion, while giving deference to the responsibility of the jury “to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13
(Tex.Crim.App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235
S.W.3d 772, 778 (Tex.Crim.App. 2007).
There is no suggestion in this case that Erica was not injured. The only
question is who inflicted her injuries. At 3 RR 26 the trial court alluded to a prior
case tried in her court and reviewed by this court: Winfred Warren Thomas v. State,
Page 9 of 11 No. 06-13-00209-CR, slip op. April 25, 2014, 2014 Tex.App. LEXIS 4512. In
Thomas the court held that the fact finder (a jury) had the duty of determining the true
state of affairs, and evidently believed that the complaining witness told the truth at
the time of her recorded interview although she recanted her prior statement at trial.
The evidence in this case is in conflict. The fact finder - the trial judge - is the
exclusive judge of the credibility of witnesses and of the weight to be given their
testimony, and reconciliation of conflicts in the evidence is within the exclusive
province of the trial judge. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.
2000). Some testimony may be believed and other testimony disbelieved.
This is a classic scenario - were you telling the truth then, or are you telling the
truth now? The trial judge had the duty of determining which was the true state of
affairs and evidently believed that Erica was telling the truth at the time of her
recorded interview. Without the recorded hospital interview, the State simply had no
evidence of who committed an assault on Eric Minifield, who can hardly be
accurately described as a complaining witness at trial because she would not
incriminate Clifford Bernard Nelson in any way.
The erroneous admission of Erica’s emergency room video had a substantial
influence on the outcome of the proceeding. See Burnett v. State, 88 S.W.3d 633,
637-38 (Tex.Crim.App. 2002). If one takes no account of the emergency room video,
there is no evidence of guilt of the offense against Erica. See Bays v. State, No. 06-
10-0045-CR, 2011 Tex.App. LEXIS 95 affirmed at 396 S.W.3d 580 (Tex.Crim.App.
2013).
Page 10 of 11 PRAYER
Appellant prays that his conviction be reversed and the case remanded for a
new trial.
Respectfully submitted,
EBB B. MOBLEY Attorney at Law 422 North Center St - Lower Level. P. O. Box 2309 Longview, TX 75606 Telephone: (903) 757-3331 Facsimile: (903) 753-8289 ebbmob@aol.com
/s/ Ebb B. Mobley EBB B. MOBLEY State Bar # 14238000
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I certify that this brief contains 2025 words according to the computer program used to prepare the document.
/s/ Ebb B. Mobley EBB B. MOBLEY
CERTIFICATE OF SERVICE
A copy of this brief was provided to Zan Colson Brown, Gregg County Assistant District Attorney, 101 East Methvin, Suite 303, Longview, Texas 75601 on the 19th day of March, 2015, by e-file.
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