ACCEPTED 06-15-00064-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/14/2015 5:46:56 PM DEBBIE AUTREY CLERK
06-15-00064-CR
FILED IN 6th COURT OF APPEALS JONATHAN RAY SHEPHERD § IN THE SIXTH TEXARKANA, COURT OF TEXAS 12/14/2015 5:46:56 PM § DEBBIE AUTREY vs. § APPEALS Clerk
§ STATE OF TEXAS § TEXAS
APPELLANT’S BRIEF
APPELLANT’S BRIEF; 06-15-00064-CR
Page 1 of 33 The Identities of Parties and Counsel
Appellant is Jonathan Shepherd TDC # 01990774, W. J. "Jim" Estelle Unit 264 FM 3478 Huntsville, TX 77320-3320
Mr. Shepherd is represented by
Russell Wilson II 1910 Pacific Ave #15100, Dallas, Texas 75201 (469) 573-0211 russell@russellwilsonlaw.com
The Appellee is the State of Texas
The State of Texas is represented by
Upshur County District Attorney Billy W Byrd 405 North Titus Gilmer, TX 75644 billy.byrd@countyofupshur.com
Assistant District Attorney Natalie A. Miller 405 North Titus Gilmer, Texas 75644 natalie.miller@countyofupshur.com
Page 2 of 33 Table of Contents
The identities of Parties and Counsel.........................................................................2 Table of Contents .......................................................................................................3 Index of Authorities ...................................................................................................4 Statement of the Case.................................................................................................6 Statement Regarding Oral Argument ........................................................................6 Issues Presented .........................................................................................................7 Statement of Facts ......................................................................................................8 Summary of Argument ............................................................................................11
A. TRIAL COURT FAILED TO HONOR DEFENDANTS SIXTH AMENDMENT CONFRONTATION RIGHTS WHEN IT RELIED UPON TEX. CODE CRIM. P. 38.49 ............................................................................................12
B. REFUSAL TO GIVE LESSER INCLUDED JURY INSTRUCTION OF FELONY MURDER ................................................................................................22
C. ADMISSION OF STATEMENT DESPITE LACK OF 38.22 WARNINGS AT THE INITATION OF THE INTERROGATION....................................................27
Page 3 of 33 Index of Authorities Cases . Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994). ......................... 24
Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986) ............................ 24
De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App.2008). .......................... 16
Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App.2002). ......................... 22
Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969); ...................................................................................................................... 29
Fuentes v. State, 991 S.W.2d 267, 272 (Tex.Crim.App.), cert. denied, 528 U.S. 1026, 120 S.Ct. 541, 145 L.Ed.2d 420 (1999)................................................. 22
Giles v. California, 554 U.S. 353, 376, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008); ... 16
Green v. State, 934 S.W.2d 92, 99 (Tex.Crim.App.1996). ............................... 29
Hudson v. State 449 S.W.3rd 495 (Tex. Crim. 2014)........................................... 25
Hudson v. State, 366 S.W.3d 878, 891–92 (Tex.App.-Texarkana 2012), rev’d, 394 S.W.3d 522 (Tex.Crim.App.2013); ................................................................. 25
Jeffley v. State, 38 S.W.3d 847, 860 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) ............................................................................................................. 29
McCarty v. State, 227 S.W.3d 415, 417 (Tex.App.-Texarkana 2007), .................. 15 APPELLANT’S BRIEF; 06-15-00064-CR
Page 4 of 33 Ngo v. State, 175 S.W.3d 738, 750 n. 48 (Tex.Crim.App.2005)........................ 24
Saunders v. State 913 S.W.2d 564, 569–74 (Tex.Crim.App.1995) ...................... 25
Shelby v. State, 819 S.W.2d 544, 546 (Tex.Crim.App.1991 ................................. 15 Statutes
Tex. Code Crim P. 38.49(a) ................................................................................. 20
U.S. Const. amend. VI .......................................................................................... 15
U.S. Const. amend. VI;......................................................................................... 15
Page 5 of 33 Statement of the Case
This is an appeal of a capital murder conviction. Appellant’s case was tried before
a jury in Upshur County Texas on or about April 15, 2015.
Statement Regarding Oral Argument
The appellant does not request oral argument unless the State request oral argument.
Page 6 of 33 Issues Presented
1. WHETHER TRIAL COURT VIOLATED DEFENDANT’S CONFRONTATION RIGHTS IN REACHING ITS CONCLUSION OF “FORFEITURE BY WRONG DOING” UNDER TEXAS CODE CRIM. P. 38.49.
2. WHETHER TRIAL COURTS REFUSAL TO CHARGE JURY ON LESSER INCLUDED OFFENSE OF FELONY MURDER IS JUSTIFIABLE IN LIGHT OF THE EVIDENCE
3. WHETHER DETERMINATION THAT STATE’S FAILURE TO COMPLY WITH PROVISIONS OF TEX CODE CRIM P. § 38.22 IS EXCUSEABLE
Page 7 of 33 Statement of Facts
On September 26, 2013, the appellant Jonathan Shepherd went to high school
football game to watch one of his sons play football. Jonathan brought his family
including his wife Susan Shepherd to the game. Jonathan’s son Trenton was three
years old at the time. Trenton lived with his mom Cheyanne Green. During the
game, Cheyanne let Jonathan know that she would be coming to pick up Trenton.
Jonathan agreed to meet Cheyanne in parking lot with Trenton. See States Ex. 9
At the agreed upon time, Jonathan walked Trenton to the parking lot. When he
arrived in the parking lot he saw Cheyanne’s car. Cheyanne greeted Jonathan and
Trenton and they went to Jonathan’s truck to change Trenton’s diaper. While they
were at the truck, Jonathan grabbed his glock .357 because he was concerned
that Cheyanne might try to have her brother do something to him. Jonathan
walked Cheyanne and Trenton to her car. See States Ex. 9 They placed Trenton in
the backseat of the car. Cheyanne got into the front seat of the car. Jonathan
leaned into the car and kissed Trenton good bye. As Jonathan was getting ready
to get out of the car he began having chest pain and asked Cheyanne if she knew
what a heart attack felt like. See States Ex. 9 He asked Cheyanne to take him to APPELLANT’S BRIEF; 06-15-00064-CR
Page 8 of 33 the ER. Cheyanne told him “no” and began to dial Susan’. Jonathan became upset
because Cheyanne would not take him to the hospital and felt that she was being
indifferent and he leaned over the seat with the gun and say “hey just go we need
to go now”. See States Ex. 9 Jonathan told Cheyanne to drive the car. Cheyanne
did not drive the car instead, she sat in the car telling Jonathan to put the gun
away. Cheyanne opened the door to get out of the car and Jonathan fired a shot
to get Cheyanne’s attention. Jonathan got out of the back seat and went to side of
the car where Cheyanne was on the ground and he discharged his gun in her
direction and got into his truck. See States Ex. 9
Jonathan was hysterical he called Susan and told her he had messed up and to go
and get Trenton. Jonthan told Susan that he had discharged his firearm but he
did not know if had hurt Cheyanne or not. See States Ex. 9 Jonathan drove
around thinking about committing suicide. Jonathan came to the police station
and surrendered himself. See States Ex. 9
Jonathan was arrested Lt. Benge questioned Jonathan on video without
reading him any of the warnings required by 38.22 of Tex. Code Crim. P. After
questioning Jonathan Captain Benge spoke with the District Attorney and
informed him that he did not give Jonathan the 38.22 warnings on the video tape.
Page 9 of 33 After that Captain. Benge he retrieved Jonathan from his cell and continued his
questioning but this time he read the 38.22 warning and told Jonathan to sign the
waiver. Jonathan asked Captain. Benge “why are we having to go through this
again” and was told Well they just wanted to….
Page 10 of 33 Summary of Argument
The trial court committed reversible error in at least three areas of the trial.
First, the trial court misapplied the forfeiture by wrong doing statute in violation of
the 6th Amendment. Specifically, the trial court made a finding of forfeiture by
wrongdoing without receiving any evidence at the hearing to determine whether
forfeiture by wrongdoing occurred. This resulted in the admission of otherwise
inadmissible testimonial and hearsay evidence. This is Constitutional error.
Second, the trial court failed to give the lesser included instruction of felony-
murder even though it was specifically raised by the defendant’s own statement.
Finally, the trial court committed reversible error by allowing in defendant’s
statement although he had not been given the statutory warnings under §Tex. Code
Crim. 38.22.
Page 11 of 33 A. TRIAL COURT FAILED TO HONOR DEFENDANTS SIXTH AMENDMENT CONFRONTATION RIGHTS WHEN IT RELIED UPON TEX. CODE CRIM. P. 38.49
The trial court denied the appellant is his Sixth Amendment confrontation rights
because the trial court believed the appellant was responsible for the death of
decedent. The Supreme Court in Giles v. California recognized “forfeiture by
wrong doing” it limited its application to situations where evidence demonstrated
that the defendant intended to prevent the decedent from testifying as opposed to
situations where a decedent is unavailable because of the defendant’s wrongful act.
The State’s first witness was Melba Baxter. Ms. Baxter is an attorney who
represented Cheyanne Green in seeking a protective order between Ms. Green and
appellant Shepherd. See State’s Ex 2-4 The appellant objected to Ms. Baxter’s
testimony and the accompanying exhibits as violating the defendant’s
confrontation rights and constituting hearsay. See. R.R. Vol. 8, p. 26-32.
The Court dismissed the jury and convened a hearing. At a hearing outside
of the presence of the jury, the trial court made a sua sponte finding of forfeiture by
Page 12 of 33 wrongdoing under Texas Code of Crim. Proc § 38.49. R.R. Vol . 8 p. 30, ln 22- p.
31 ln 11. No new or additional evidence was admitted at the hearing outside of the
presence of the jury and the trial court relied solely upon a previously viewed
statements of the defendant. See R.R. Vol 8 p. 31 ln 6-11 “the fact that I have
had the opportunity to review that evidence – now I can you know- I believe that
will take care of evidence that I would need to hear to make that determination,
the defendants own statement”. The statement relied upon by was offered
without objection at a pretrial hearing on a motion to suppress to determine the
admissibility of the statements 1. See R.R. Vol. 3, p.52-99. The state never
contended that either statement standing alone supported a finding of forfeiture
by wrong doing.
The appellant objected to this procedure noting that the Court had not
heard evidence as required by Tex. Code Crim. P. § 38.49. “There’s literally been
no evidence heard so the Court is not in a position to make a preponderance
finding Beyond that I think you still have the issue of Giles in the Sixth
Amendment confrontation which the state is saying we are relying on forfeiture
1 There were two exhibits offered at the pretrial hearing that contain statements of the defendant. At the pretrial hearing they were admitted for the purpose of that hearing See.R.R. Vol 3, .62; Pretrial Exhibit 5, 6 APPELLANT’S BRIEF; 06-15-00064-CR
Page 13 of 33 by wrong doing” See R.R. Vol 8, p. 29 The Court granted a running objection as to
Ms. Baxter’s testimony and the exhibits she sponsored. Id. 2
The finding of forfeiture by wrong doing destroyed the Appellant’s ability
challenge not only testimonial statements but all statements ever made by the
decedent regarding alleged past abuse. Mr. Shepherd was convicted before the
trial ever started because he was prevented from using confrontation and hearsay
objections. Thereafter, Ms. Baxter was permitted to testify and the Court
admitted the prior sworn affidavit of the decedent which was filed in an Ex Parte
Proceeding. See R.R. Vol 8, p. 37-40; State’s Exhibit 2. The affidavit was then
read by the witness.
The Court overruled the 6th Amendment confrontation objection and granted a
running objection to testimony and exhibits. Thereafter, Ms. Baxter was
permitted to testify and the Court admitted the prior sworn affidavit of the
decedent which was filed in an Ex Parte Proceeding. See R.R. Vol 8, p. 37-40;
State’s Exhibit 2. The affidavit was then read by the witness. After admission of
the testimonial affidavit in support of the protective order, the Court admitted an
2 After Ms. Baxter testified, the running objection was expanded to include all witnesses and exhibits. See R.R. Vol. 8, p. 87-90 APPELLANT’S BRIEF; 06-15-00064-CR
Page 14 of 33 audio recording of an alleged argument between Cheyanne and Jonathan that
Ms. Baxter alleged she received from Cheyanne. See State’s Ex. 4
The fact that a statement qualifies under a hearsay exception, such as an
excited utterance under rule of evidence 803(2), does not necessarily free it from
the strictures of the Confrontation Clause. See McCarty v. State, 227 S.W.3d 415,
417 (Tex.App.-Texarkana 2007), aff'd, 257 S.W.3d 238 (Tex.Crim.App.2008); see
also Tex.R. Evid. 803(2) (providing a hearsay exception for “[a] statement
relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition”). Rather, the event giving
rise to an excited utterance informs the Confrontation Clause analysis and sheds
light on the inquiry as to the statement's testimonial nature. See Wall, 184
S.W.3d at 740; McCarty, 227 S.W.3d 418;
The Confrontation Clause guarantees the right of an accused “to be
confronted with the witnesses against him.” See U.S. Const. amend. VI; Shelby v.
State, 819 S.W.2d 544, 546 (Tex.Crim.App.1991)(en banc). This right of
confrontation is a fundamental right and is applicable to the states by virtue of
the Fourteenth Amendment. Shelby, 819 S.W.2d at 546. The primary interest APPELLANT’S BRIEF; 06-15-00064-CR
Page 15 of 33 protected under the Confrontation Clause is the right of cross-examination. See
id.
In Crawford, the United States Supreme Court explored the parameters of
this right and concluded it was a violation of the Sixth Amendment for a court to
admit testimonial statements of a witness who did not appear at trial unless that
witness was unavailable to testify and the defendant was afforded a prior
opportunity for cross-examination. Crawford, 541 U.S. at 68; see also De La Paz v.
State, 273 S.W.3d 671, 680 (Tex.Crim.App.2008). In Crawford, the Court
explained that generally a statement should be considered “testimonial” if it
constitutes a “solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” Crawford, 541 U.S. at 51. Additionally, the
Court explained that “[a]n accuser who makes a formal statement to government
officers bears testimony in a sense that a person who makes a casual remark to
an acquaintance does not.” Id.; see also Giles v. California, 554 U.S. 353, 376, 128
S.Ct. 2678, 171 L.Ed.2d 488 (2008); Davis v. State, 268 S.W.3d 683, 710
(Tex.App.-Fort Worth 2008, pet. ref'd). While the Court in Crawford declined to
provide a comprehensive definition of “testimonial” evidence, it noted that
certain classes of “core” statements are regarded as testimonial, including: ex
Page 16 of 33 parte in-court testimony or its functional equivalent—that is, material such as
affidavits, custodial examinations, prior testimony that the defendant was unable
to cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially, ... extrajudicial statements ... contained in
formalized testimonial materials, such as affidavits, depositions, prior testimony,
or confessions, ... statements that were made under circumstances which would
lead an objective witness reasonably to believe that the statement would be
available for use at a later trial” Id. at 51–52 “Statements taken by police officers
in the course of interrogations are also testimonial under even a narrow
standard.” Id. at 52.
The affidavit of Cheyenne Green is unquestionably testimonial because it is
sworn testimony included in an ex-parte court proceeding. See States Ex. 2
(unnumbered pages 9-10 entitled “Affidavit in Support of Ex Parte Relief”
contained within State’s Ex. 2); R.R. Vol. 8, p. 36, ln 22- p 40, ln13 (“I want to
direct your attention here to the affidavit”… signed; R.R. Vol. 8, p.41-45 (reading
of the affidavit). Along these same lines, Ms. Green’s subsequent allegations of
abuse to responding police officers are testimonial.
Page 17 of 33 The testimony of Melba Baxter and the affidavit of Cheyenne Green are
illustrative examples of the character of evidence the trial court admitted.
The jury received the following additional objectionable evidence:
1. Testimony of Melba Baxter- decedent’s attorney who was told allegations
of abuse by decedent
2. Application for Protective Order including sworn affidavit of past allegations
of abuse
3. Testimony of Officer Racey Turner regarding responding to call and
conversations with decedent regarding alleged past abuse- See R.R. Vol. 10,
p, 210-214
4. Testimony of Kathy Hedgewood, reporting an instance of alleged domestic
violence See R.R. Vol. 10., p. 19-197
5. Testimony of Sandra Bass Hunter reporting discussion with decedent R.R.
Vol 10, p. 253
The trial court erred in making a blanket finding of forfeiture by
wrongdoing for the following reasons (1) the defendant’s statement was not
legally sufficient to establish forfeiture by wrong doing because even considered APPELLANT’S BRIEF; 06-15-00064-CR
Page 18 of 33 in the light most favorable to the ruling the statement failed to establish that the
defendant acted with an intent to prevent the decedent from testifying as
required by Giles. See State Ex. 9. (2) the trial court’s method of relying on a
statement admitted in another hearing for another purpose runs afoul of due
process because the parties are entitled to notice of the purpose for which
evidence is being offered or considered (3) the trial court’s application of Tex.
Code Criminal Procedure 38.49 violates the Constitution because it allows
admission of unconfronted testimonial statements
Appellant acknowledges that in viewing the statement one could conclude
that the appellant “wrongfully procured the unavailability of a witness” as set
forth in Tex. Code Crim P. 38.49 (a). The State of Texas thus, is in the exact same
position as the State of California in Giles. See Giles. v. California, 554 US 353,
358 (2008)(The State…. maintains…. that the Sixth Amendment did not prohibit
prosecutors from introducing the statements because an exception to the
confrontation guarantee permits the use of a witness’s unconfronted testimony if
a judge finds, as the judge did in this case, that the defendant committed a
wrongful act that rendered the witness unavailable to testify at trial)”
Page 19 of 33 The Giles court devoted attention to the exact language used in the Texas statute.
See Giles at 360-361 (discussing definition of “procure”). The Court concluded
that “the manner in which the rule was applied makes plain that unconfronted
testimony would not be admitted without a showing that the defendant intended to
prevent a witness from testifying. In cases where the evidence suggested that the
defendant had caused a person to be absent, but had not done so to prevent the
person from testifying—as in the typical murder case involving accusatorial
statements by the victim—the testimony was excluded unless it was confronted
“Id. At 361 ( emphasis added). This is the exact situation complained of to the trial
court and presented for review here. The result should be the exact same. The
reversal of the trial court’s decision.
To the extent this Court upholds the trial court’s application of Tex Code of
Crim. 38.49, appellant challenges the Constitutionality of the statue as applied 3.
Specifically, appellant contends that application of the statute denied the defendant
his Sixth amendment confrontation rights as set forth in Giles v. California. The
plain reading of the statute abolishes Sixth Amendment confrontation protections
in any instance where any defendant bears any responsibility for the absence of the
3 Tex. Code Crim P. §38.49 became law in 2013 but counsel has not located an interpretative decisions on the statute. APPELLANT’S BRIEF; 06-15-00064-CR
Page 20 of 33 witness regardless of motivation. Specifically, the statute does not require a court
make any finding with respect to the defendant’s motivation.
a) A party to a criminal case who wrongfully procures the unavailability of a witness or prospective witness:
(1) may not benefit from the wrongdoing by depriving the trier of fact of relevant evidence and testimony; and
(2) forfeits the party's right to object to the admissibility of evidence or statements based on the unavailability of the witness as provided by this article through forfeiture by wrongdoing.
See Tex. Code Crim P. 38.49(a)
The threshold for the determination appears to be the lowest evidentiary threshold
known to the Texas legal system. The statute does not even require reliability of a
statement. Literally an anonymous bubble gum wrapper with “he did it” scrawled
on the inside would be enough for a determination of forfeiture by wrongdoing
under the literal wording of the statute. While the statue is silent as to what would
be required it to show a forfeiture by wrongdoing, it explicitly does away with
reliability, criminal conduct and sole intent to cause unavailability. See Tex. Code
Crim. P. § 38.49(d) Given the vast differences of opinion on matters such as which
is the best sports team in this State, it is difficult to imagine a scenario where a
statute this vaguely written could be consistently applied across the great State of
Page 21 of 33 Texas. A state statute implementing a federal Constitutional principal can
give more but not less Constitutional protection than its federal counterpart.
In the first place, it is to be remembered, that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. See James Madison, Federalist Paper XIV, 1787
Because the statute’s application permitted admission of testimonial evidence
without the defendant having enjoyed the right of confrontation or the State
having demonstrated a constitutional forfeiture by wrong doing as set forth in
Giles, the application violated the appellant’s Sixth amendment rights.
B. REFUSAL TO GIVE LESSER INCLUDED JURY INSTRUCTION OF FELONY MURDER
The appellant requested a jury instruction on felony murder and the trial court
denied the request. See R.R. Vol. 12, p. 148, ln17-24; p. 157-159 A two-step test
applies when assessing whether a charge on a lesser-included offense should be
given. Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App.2002). The first step
Page 22 of 33 is to determine whether the offense is actually a lesser-included offense of the
offense charged. Id. Murder is a lesser-included offense of capital murder. Id.
Felony murder is a lesser-included offense of capital murder. Fuentes v. State, 991
S.W.2d 267, 272 (Tex.Crim.App.), cert. denied, 528 U.S. 1026, 120 S.Ct. 541,
145 L.Ed.2d 420 (1999). The first prong of the test is satisfied.
The second step of the test requires that the record contain some evidence that
would permit a rational jury to find that the defendant is guilty only of the lesser
offense. Feldman, 71 S.W.3d at 750. There must be some evidence from which a
rational jury could acquit the defendant of the greater offense while convicting him
of the lesser-included offense. The evidence must establish the lesser-included
offense as a valid rational alternative to the charged offense. Id. The element
distinguishing capital murder from felony murder is the intent to kill. Fuentes, 991
S.W.2d at 272. Felony murder is an unintentional murder committed in the course
of committing a felony while capital murder includes an intentional murder
committed in the course of a predicate felony offense. To be entitled to an
instruction on felony murder there must be some evidence that would permit a jury
rationally to find the defendant had the intent to commit kidnapping or attempting
kidnapping but not to cause the death of the victim.
Page 23 of 33 The defendant’s own statement reflects that he “fired the gun but never
meant to hit her only to get her attention” See States Ex. 9, p. 5 ln 180-183 and
that upon exiting the vehicle he “fired in her direction” but couldn’t say that he
pointed the gun at her.” Id at ln 202-222; “I discharged my firearm but I don’t
know if I hurt her or not” ld ln 231 and “I didn’t mean for any of this to happen”.
See R.R. Vol 9, p. 17-20; State’s Exhibits 9 ln 281-291. These statements are
clearly consistent with an unintentional killing. This evidence easily meets the
definition of committing an act clearly dangerous to human life as set forth in
Texas Penal Code 19.02(3).
Beyond this the evidence showed that this homicide happened on a child
exchange during a high school football game wherein the defendant was watching
a football game with his family. See States’s Ex. 9, p. 2 The defendants reason for
contacting the decedent was the exchange of their child. Id The defendant armed
himself out of fear from past threats made against him. Id. p. 3
Having established error in the trial court's jury charge, appellant directs the
Court to past case law guiding its evaluation of the record to determine whether
appellant was harmed. Hamel v. State, 916 S.W.2d 491, 494 (Tex.Crim.App.1996)
(citing Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984)). When the
defendant raises a proper objection at trial, reversal is required if the error is
Page 24 of 33 reasonably expected to harm the defendant. Almanza, 686 S.W.2d at 171; Aguilar
v. State, 914 S.W.2d 649, 651 (Tex.App.-Texarkana 1996, no pet.). The presence
of any harm, regardless of degree, is sufficient to require reversal. Abdnor v.
State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994). With no burden of proof, the
reviewing court’s determination is made simply from a review of the record. See
Warner v. State, 245 S.W.3d 458, 464 (Tex.Crim.App.2008); Ngo v. State, 175
S.W.3d 738, 750 n. 48 (Tex.Crim.App.2005). The “defendant must have suffered
‘some’ actual, rather than theoretical, harm from the error.” Arline v. State, 721
S.W.2d 348, 351 (Tex.Crim.App.1986)
The state cited Hudson in arguing against the felony murder instruction in
this case. However, the State did not correctly advise the trial court of the ultimate
holding in Hudson4 See R.R. Vol. 12, p. 157 ln 17-25 ( state arguing :“ if the
evidence on which the defendant relies upon situates somewhere between the
charged offense and the lesser included they wouldn’t be entitled to the
lesser”)
It is true that in evaluating harm regarding the failure to submit a lesser-
included offense the Court should take into account the existence of any lesser-
4 Hudson’s focus is on the harm analysis of a failure to give an instruction where the defendant is entitled to the instruction. APPELLANT’S BRIEF; 06-15-00064-CR
Page 25 of 33 included offenses that were submitted and that the jury’s rejection of submitted
lesser-included offenses could render error with respect to the unsubmitted lesser-
included offense harmless See Saunders v. State 913 S.W.2d 564, 569–74
(Tex.Crim.App.1995); See Hudson v. State, 366 S.W.3d 878, 891–92 (Tex.App.-
Texarkana 2012), rev’d, 394 S.W.3d 522 (Tex.Crim.App.2013); However that is
not the case here.
Here, there is no intermediate offense between capital murder and murder.
Thus Hudson’s discussion is largely inapplicable because no intermediate offense
will preclude the entitlement to the felony-murder instruction nor render the failure
to give it harmless. See Hudson v. State 449 S.W.3rd 495 (Tex. Crim. 2014)
In Hudson, the defendant did not request a felony-murder instruction.
In this case there are alternate methods of committing murder which are
necessarily distinct as defined by statute and defendant is entitled to both
instructions because they are both raised by the evidence.
In this case, the indictment alleged capital murder with alternate methods of
committing the offense. The first paragraph alleged capital murder by attempted
kidnapping or kidnapping and the second paragraph alleged capital murder by
attempted obstruction or obstruction. See C.R. p.8. The Court’s charged contained
Page 26 of 33 both methods of committing capital murder. See C.R. p. 311. The Court’s charge
should have contained both methods of committing murder.
C. ADMISSION OF STATEMENT DESPITE LACK OF 38.22 WARNINGS AT THE INITATION OF THE INTERROGATION
On January 20, 2015 the trial court conducted a pretrial hearing on the
defendant’s motion to suppress. At the hearing the State called Captain Ron Benge
to explain how he took the statements from Jonathan Shepherd. Captain Benge
testified that he had been in law enforcement since 1977 and he recalled on the day
in question that after Jonathan was brought into the police station he went to him
and read him his rights in the middle office of the patrol section and showed him
the warning and had him initial them. Benge testified that after giving Jonathan the
Miranda warnings he was asked no questions. See. R.R. Vol. 3 p. 55-. The
warning Captain Benge is describing is simply a warning contemporaneous with an
arrest. The absence of questioning contemporaneous with the warning militates
against the likelihood the one would have understood any warning to apply to any
particular questioning
Page 27 of 33 The first interview is captured on States Pretrial Exhibit 5. With respect to
this exhibit the State stipulated that it was not admissible because it did not contain
the 38.22 warning. See R.R. Vol. 3, p. 60 “the state stipulates to the Court that
the first statement or interview of the accused or the defendant Jonathan
Shepherd would not be offered by the State during guilt/innocence phase of
these proceedings…. I want the Court to be aware that there’s two statements
involved in this case, statement number one is acknowledged and stipulated
by the states, will not be used or attempted to be used through any witness or
this video played
The continuation of the interview appears with the midstream warnings
appears on State’s Pretrial Ex. 6 The investigating officer employed a two-step
interrogation method in question Jonathan Shepherd. Specifically, Shepherd was
not read his Miranda warnings during the first part of the interview with Captain.
Ron Benge. Captain Benge testified that upon realizing that the warnings were not
read to Shepherd, the district attorney advised him to restart the interview because
the first interview violated the law See R.R. Vol. 3, p. 79-80 . Thus, approximately
35 minutes after ending questioning of Jonathan Shepherd, Captain Benge
reinitiates the contact See R.R. Vol. 3, p. 79 . During this contact, Jonathan is told
by Captain Benge to sign his name and date of birth as opposed to being asked
Page 28 of 33 whether he would waive he his rights. See State’s Ex. #9; State’s Pretrial Exhibit
Immediately Jonathan ask Captain Benege “Why we having to go through
this again” See State’s Ex. 9 5; State’s Pretrial Ex. 6. Captain Benge responds
“Just because they wanted to”. Although, Captain Benge had been told by the
District Attorney that his questioning of Jonathan broke the law, he did not inform
Jonathan truthfully when asked the question about the need to go through this
again. Thus, Jonathan did not know that the statements he made just minutes
earlier could not be used against him. In the two-step analysis this weighs heavily
against a finding that the second statement could be independent voluntarily made
because the captain provided false information about the critical question “why are
we having to go through this again”. Moreover, the notion that this is a severable
statement is simply at odds with the reality. Captain Benege and Jonathan
Shepherd make references to the prior unwarned statement. “I still have all the
other stuff about, you know –all the other information about how you-your heart
was broken and everything and I still have all that……. So we’ll just go to
5 State’s Exhibit 9 was not used at the suppression hearing. The exhibit is a transcript of the statement which was admitted during the trial as an exact transcription of the statement. The statement at trial was admitted as State’s Ex. 8. Thus, State’s Pretrial Exhibit 6 and trial exhibit 8 are copies of the same statement which is transcribed in State’s Exhibit 9. The transcription is used her convenience of the reader and writer. APPELLANT’S BRIEF; 06-15-00064-CR
Page 29 of 33 tonight… well just go to where you and (Trent) were at the ball game and ya’ll
were coming and out and just tell me what happened then” See State’s Pretrial Ex.
6 State’s Ex. 9 p.1-2 ;lns43-59
There are a series of Supreme Court and Texas Court of Criminal Appeals
cases issues surrounding what is commonly known as a two-step interrogation
process. See Carter v. State, 309 SW 3rd 31 (Tex. Crim. App, 2010).
In Carter, the Court of Criminal Appeals took up the question first, warn
later line of cases and addressed a variety of circumstances which occur. The
overall question in reviewing a statement is whether the totality of the
circumstances the statement is voluntary. In determining the voluntariness of a
defendant's written statement, police falsehoods are relevant. Frazier v. Cupp, 394
U.S. 731, 739, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969); Green v. State, 934
S.W.2d 92, 99 (Tex.Crim.App.1996). However, “[t]rickery or deception does not
make a statement involuntary unless the method [is] calculated to produce an
untruthful confession or [is] offensive to due process.” Creager, 952 S.W.2d at
856; Jeffley v. State, 38 S.W.3d 847, 860 (Tex.App.-Houston [14th Dist.] 2001,
pet. ref'd). Indeed, the effect of a lie “must be analyzed in the context of all the
circumstances of the interrogation.” Miller v. Fenton, 796 F.2d 598, 607 (3rd
Cir.1986); accord Frazier, 394 U.S. at 737–39, 89 S.Ct. at 1424–25. In this
Page 30 of 33 case lying about the reason for the continuation for the statement brought about its
repetition and subsequent admission. This action offends the notions of due
process because it undermines the value of the warnings themselves. Thus
appellant request that this Court enter an order (1) finding that there is one
continuous statement (2) the statement did not contain the appropriate warnings
under Tex. Code Crim. P. § 38.22(3)(a)(2)(a) at the beginning of the recording as
required by Texas law (3) as result the statement is inadmissible (4) the state failed
to prove that the statement was voluntarily given.
PRAYER
WHEREFORE, appellant prays that this Court upon review of this matter reverse
the judgment of the trial court for the reasons set forth herein and remand this
matter back to the trial court for reconsideration in light of this Court’s ruling.
Page 31 of 33 Respectfully submitted,
The Law Office of Russell Wilson II 1910 Pacific Ave Dallas, TX 75201 Tel: 4695730211 Fax: 972-704-2907 E: russell@russellwilsonlaw.com
By:/S/ Russell Wilson II____________ Russell Wilson II State Bar No. 00794870 Attorney for JONATHAN RAY SHEPHERD
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with Texas Rule of Appellate Procedure 9.4(2)(B) and the brief is 5,501 words in Microsoft Word 2016.
S/ Russell Wilson II____________ Russell Wilson II
Page 32 of 33 CERTIFICATE OF SERVICE
This is to certify that on December 14, 2015, a true and correct copy of the above
and foregoing document was served on the Upshur County District Attorney's
Office, by email through the efile service.
Page 33 of 33