ACCEPTED 06-14-00096-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/31/2015 12:18:41 PM DEBBIE AUTREY CLERK
NO. 06-14-00096-CR _________________________________________________________________ FILED IN 6th COURT OF APPEALS IN THE COURT OF APPEALS TEXARKANA, TEXAS 7/31/2015 12:18:41 PM SIXTH DISTRICT DEBBIE AUTREY Clerk
AT TEXARKANA, TEXAS _________________________________________________________________
MICKEY LEE BATES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________________________________________
APPEAL IN CAUSE NUMBER 25346
IN THE DISTRICT COURT
SIXTH JUDICIAL DISTRICT
OF LAMAR COUNTY, TEXAS _________________________________________________________________
APPELLANT’S MOTION FOR REHEARING ________________________________________________________________
Gary L. Waite State Bar No. 20667500 104 Lamar Ave. Paris, Texas 75460 Telephone (903) 785 - 0096 Fax: (903) 785 - 0097 ATTORNEY FOR THE APPELLANT TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii
GROUNDS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
GROUND ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
This Court analysis and finding that it was error to admit a sound recording before the jury is correct. The Court erred in its finding that these serious Constitutional errors were harmless beyond a reasonable doubt.
GROUND TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Appellant was entitled to confront the witnesses against him. This includes the right of physical presence of the witness before the jury and the appellant without appellant's having to call the witnesses. This Court’s finding is correct, however, the Court erred in its finding that these serious constitutional errors were harmless beyond a reasonable doubt.
ARGUMENT AND AUTHORITY UNDER GROUND ONE AND TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4
GROUND THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
This Court is correct in its finding that trial court erred in admitting into evidence statement made to officers by the appellant while under arrest in violation of Miranda. However, the Court erred in its finding that the serious constitutional errors discussed were harmless beyond a reasonable doubt.
ARGUMENT AND AUTHORITY UNDER GROUND THREE. . . . . . . . . . . . 4-5
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ii INDEX OF AUTHORITIES
CASES
Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 3
Miranda v. Arizona, 384 U.S. 436 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5
Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007) . . . . . . . . . . . .. . . . . .3
Snowden v. State, 353 S.W. 3d 815, 822 (Tex. Crim. App. 2011). . . . . . . . . . . . . . 5
Rules and Statutes
Tex R. App. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
iii NO. 06-14-00096-CR
STATE OF TEXAS § IN THE § VS. § SIXTH COURT § MICKEY LEE BATES § OF APPEALS §
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE JUDGES OF SAID COURT:
Now comes Mickey Lee Bates, appellant in the above styled and numbered
cause, and moves the Court to grant his Motion for Rehearing its Opinion and
Judgment affirming Appellant’s conviction dated June 17, 2015, and for good cause
shows the following:
GROUNDS PRESENTED FOR REHEARING
GROUND ONE
This Court analysis and finding that it was error to admit a sound recording
before the jury is correct. The Court erredin its finding that these serious
Constitutional errors were harmless beyond a reasonable doubt.
GROUND TWO
Appellant was entitled to confront the witnesses against him. This includes
the right of physical presence of the witness before the jury and the appellant
without appellant's having to call the witnesses. This Court’s finding is correct, however, the Court erred in its finding that these serious constitutional errors were
harmless beyond a reasonable doubt.
GROUND THREE
This Court is correct in its finding that trial court erred in admitting into
evidence statement made to officers by the appellant while under arrest in violation
of Miranda. However, the Court erred in its finding that the serious constitutional
errors discussed were harmless beyond a reasonable doubt
ARGUMENT AND AUTHORITIES UNDER GROUNDS ONE AND TWO
GROUND ONE (RESTATED)
This Court analysis and finding that it was error to admit a sound recording
before the jury is correct. The Court erred in its finding that these serious
Constitutional errors were harmless beyond a reasonable doubt.
GROUND TWO (RESTATED)
Appellant was entitled to confront the witnesses against him. This includes
the right of physical presence of the witness before the jury and the appellant
without appellant's having to call the witnesses. This Court’s finding is correct,
however, the Court erred in its finding that these serious constitutional errors were
harmless beyond a reasonable doubt.
2 This Court came to the conclusion that “the witness statements recorded on
the police dash cam were testimonial, and their admission to evidence was error.
As this was a violation of a constitutional protection, we must reverse Bates’
conviction unless we can determine beyond a reasonable doubt that the error
neither contributed to Bates’ conviction nor his punishment.” See Tex R. App. P.
44.2(a); (Slip Op at 12 ).
The Court then made a harm analysis as set forth in Scott v. State, 227
S.W.3d 670, 690 (Tex. Crim. App. 2007). Appellant respectfully submits to the
Court that it did not properly apply Scott in its interpretation of Crawford v.
Washington, 541 U.S. 36 (2004). The Court of Criminal appeals, in Scott, states
that the emphasis of the harm analysis pursuant to Rule 44.2(a), Tex. R. App. P.,
should not be on the propriety of the outcome of the trial. The question for the
reviewing court is not whether the jury verdict was supported by the evidence.
Instead, the question is the likelihood that the constitutional error was actually a
contributing factor in the jury’s deliberations in arriving at that verdict–whether, in
other words, the error adversely affected ‘the integrity of the process leading to the
conviction.’ In reaching that decision, the reviewing court may also consider
factors other than those listed in those listed (in Scott at page 390; Slip Op. P. 12).
3 In this case the Court did not consider the “mob” atmosphere depicted and created
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ACCEPTED 06-14-00096-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/31/2015 12:18:41 PM DEBBIE AUTREY CLERK
NO. 06-14-00096-CR _________________________________________________________________ FILED IN 6th COURT OF APPEALS IN THE COURT OF APPEALS TEXARKANA, TEXAS 7/31/2015 12:18:41 PM SIXTH DISTRICT DEBBIE AUTREY Clerk
AT TEXARKANA, TEXAS _________________________________________________________________
MICKEY LEE BATES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________________________________________
APPEAL IN CAUSE NUMBER 25346
IN THE DISTRICT COURT
SIXTH JUDICIAL DISTRICT
OF LAMAR COUNTY, TEXAS _________________________________________________________________
APPELLANT’S MOTION FOR REHEARING ________________________________________________________________
Gary L. Waite State Bar No. 20667500 104 Lamar Ave. Paris, Texas 75460 Telephone (903) 785 - 0096 Fax: (903) 785 - 0097 ATTORNEY FOR THE APPELLANT TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii
GROUNDS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
GROUND ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
This Court analysis and finding that it was error to admit a sound recording before the jury is correct. The Court erred in its finding that these serious Constitutional errors were harmless beyond a reasonable doubt.
GROUND TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Appellant was entitled to confront the witnesses against him. This includes the right of physical presence of the witness before the jury and the appellant without appellant's having to call the witnesses. This Court’s finding is correct, however, the Court erred in its finding that these serious constitutional errors were harmless beyond a reasonable doubt.
ARGUMENT AND AUTHORITY UNDER GROUND ONE AND TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4
GROUND THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
This Court is correct in its finding that trial court erred in admitting into evidence statement made to officers by the appellant while under arrest in violation of Miranda. However, the Court erred in its finding that the serious constitutional errors discussed were harmless beyond a reasonable doubt.
ARGUMENT AND AUTHORITY UNDER GROUND THREE. . . . . . . . . . . . 4-5
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ii INDEX OF AUTHORITIES
CASES
Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 3
Miranda v. Arizona, 384 U.S. 436 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5
Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007) . . . . . . . . . . . .. . . . . .3
Snowden v. State, 353 S.W. 3d 815, 822 (Tex. Crim. App. 2011). . . . . . . . . . . . . . 5
Rules and Statutes
Tex R. App. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
iii NO. 06-14-00096-CR
STATE OF TEXAS § IN THE § VS. § SIXTH COURT § MICKEY LEE BATES § OF APPEALS §
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE JUDGES OF SAID COURT:
Now comes Mickey Lee Bates, appellant in the above styled and numbered
cause, and moves the Court to grant his Motion for Rehearing its Opinion and
Judgment affirming Appellant’s conviction dated June 17, 2015, and for good cause
shows the following:
GROUNDS PRESENTED FOR REHEARING
GROUND ONE
This Court analysis and finding that it was error to admit a sound recording
before the jury is correct. The Court erredin its finding that these serious
Constitutional errors were harmless beyond a reasonable doubt.
GROUND TWO
Appellant was entitled to confront the witnesses against him. This includes
the right of physical presence of the witness before the jury and the appellant
without appellant's having to call the witnesses. This Court’s finding is correct, however, the Court erred in its finding that these serious constitutional errors were
harmless beyond a reasonable doubt.
GROUND THREE
This Court is correct in its finding that trial court erred in admitting into
evidence statement made to officers by the appellant while under arrest in violation
of Miranda. However, the Court erred in its finding that the serious constitutional
errors discussed were harmless beyond a reasonable doubt
ARGUMENT AND AUTHORITIES UNDER GROUNDS ONE AND TWO
GROUND ONE (RESTATED)
This Court analysis and finding that it was error to admit a sound recording
before the jury is correct. The Court erred in its finding that these serious
Constitutional errors were harmless beyond a reasonable doubt.
GROUND TWO (RESTATED)
Appellant was entitled to confront the witnesses against him. This includes
the right of physical presence of the witness before the jury and the appellant
without appellant's having to call the witnesses. This Court’s finding is correct,
however, the Court erred in its finding that these serious constitutional errors were
harmless beyond a reasonable doubt.
2 This Court came to the conclusion that “the witness statements recorded on
the police dash cam were testimonial, and their admission to evidence was error.
As this was a violation of a constitutional protection, we must reverse Bates’
conviction unless we can determine beyond a reasonable doubt that the error
neither contributed to Bates’ conviction nor his punishment.” See Tex R. App. P.
44.2(a); (Slip Op at 12 ).
The Court then made a harm analysis as set forth in Scott v. State, 227
S.W.3d 670, 690 (Tex. Crim. App. 2007). Appellant respectfully submits to the
Court that it did not properly apply Scott in its interpretation of Crawford v.
Washington, 541 U.S. 36 (2004). The Court of Criminal appeals, in Scott, states
that the emphasis of the harm analysis pursuant to Rule 44.2(a), Tex. R. App. P.,
should not be on the propriety of the outcome of the trial. The question for the
reviewing court is not whether the jury verdict was supported by the evidence.
Instead, the question is the likelihood that the constitutional error was actually a
contributing factor in the jury’s deliberations in arriving at that verdict–whether, in
other words, the error adversely affected ‘the integrity of the process leading to the
conviction.’ In reaching that decision, the reviewing court may also consider
factors other than those listed in those listed (in Scott at page 390; Slip Op. P. 12).
3 In this case the Court did not consider the “mob” atmosphere depicted and created
by the video and audio of state’s Exhibit 3. This mob atmosphere is described
quite well by this Court’s rendition of the events in the opinion. (Slip op. pp. 5-6).
Based on the foregoing, Appellant requests that the Court reverse his conviction
and grant a new trial in this cause.
GROUND THREE (Restated)
This Court is correct in its finding that trial court erred in admitting into
evidence statement made to officers by the appellant while under arrest in violation
of Miranda. (Miranda v. Arizona, 384 U.S. 436 (1966)) However, the Court erred
in its finding that the serious constitutional errors discussed were harmless beyond
a reasonable doubt.
Appellant agrees with the rendition of the facts as set forth in the Court’s
opinion. However, there is one area where the facts need to be set forth in more
detail, and are germane to this particular issue. At page six of this Court’s
opinion the Court correctly states “After talking to witnesses, the voices of the
officers are heard conversing with one another, but their conversation is mostly
indecipherable, although the word ‘arrest’ is clearly audible at some point during
these discussions.” ( Slip op. p. 6.) There is more discussion after this than is
apparent by the Court’s rendition of the facts. After the officers
4 discussion of the imminent arrest of appellant, without giving Miranda
warnings, the officer interrogates appellant about the accident. (See Exhibit 3,
video at time 2053-2057) The Miranda violation is more egregious than the
opinion’s facts suggest. The Court states in its opinion that the erroneous
admission of the evidence was not in the nature of a confession. However, the
berating of appellant by the officers for suggesting that he did not do anything to
help Whitlock was harmful when submitted to the jury. (Exhibit 3, video time
2053-2057). The accusatory questions and the responses of appellant were
harmful to appellant. It suggests that he callously left Whitlock under his truck
and did nothing to help him. It cannot be said, beyond a reasonable doubt, that
this did not cause harm the appellant and contribute to his conviction or
punishment. Snowden v. State, 353 S.W. 3d 815, 822 (Tex. Crim. App. 2011).
Based on the foregoing argument and authorities, appellant requests that
the Court reconsider its judgment in this case grant Appellant’s Motion for
Rehearing, reverse and remand this case for a new trial.
5 CONCLUSION AND PRAYER
Based on the foregoing argument and authority, this case should be
reversed and remanded for a new trial, or alternatively, remanded for a new trial
Gary L. Waite 104 Lamar Ave. Paris, Texas 75460 (903) 785-0096 (903) 785-0097
By:_/s/Gary L. Waite Gary L. Waite State Bar No. 20667500 garywaite@sbcglobal.net Attorney for Mickey Lee Bates
CERTIFICATE OF SERVICE
This is to certify that on July 31, 2015, a true and correct copy of the above
and foregoing document was served on the County Attorney's Office, Lamar
County, 119 N. Main, Paris, Texas 75460, by personal delivery.
/s/ Gary L. Waite Gary L. Waite