ACCEPTED 01-14-00174-cr FIRST COURT OF APPEALS HOUSTON, TEXAS 5/1/2015 11:58:57 PM CHRISTOPHER PRINE CLERK
CASE NO. 01-14-00174-CR
IN THE COURT OF APPEALS FOR THE FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS FIRST JUDICIAL DISTRICT OF TEXAS5/1/2015 11:58:57 PM CHRISTOPHER A. PRINE ************************* Clerk
STEPHEN CLARK WEBB, Appellant
vs.
THE STATE OF TEXAS, Appellee
***********************
Appeal from the 337TH Judicial District Court of Harris County, Texas Trial Court Cause No. 1389676
**************************
APPELLANT’S MOTION FOR REHEARING OF THE COURT’S APRIL 2, 2015 JUDGMENT
***************************
ORAL ARGUMENT JOHN S. COSSUM REQUESTED TSB# 04854500 440 Louisiana, Suite 900 Houston, Texas 77002 Telephone: (713) 222-6134 Facsimile: (713) 222-6144 jcossum@cossumlaw.com
ATTORNEY FOR APPELLANT, STEPHEN CLARK WEBB TABLE OF CONTENTS
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 III ARGUMENT AND AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 IV PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Certificate of Service and Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
i. INDEX OF AUTHORITIES
TEXAS CASES PAGE
Mayfield v. State, 114 Tex. Crim 425, 25 S.W.2d 833 (1930).. . . . . . . . . . . . . 1,2
CASES FROM OTHER JURISDICTIONS
Commonwealth v Almeida, 433 Mass. 717, 746 N.E.2d 139 (2001). . . . . . . . . . 3
State v. Alan, 12 Neb. App. 261, 670 N.W.2d 814 (2003). . . . . . . . . . . . . . . . . . 3
Godfrey v. State 258 Ga. 28, 365 S.E.2d 93,94 (1998).. . . . . . . . . . . . . . . . . . . . 3
State v. Posten 302 N.W.2d 638 (Minn 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TEXAS STATUTES
TEX. R. EVID. 402. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
TEX. R. EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
TEX. R. EVID. 803. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ii. I. INTRODUCTION
By this motion for rehearing, Appellant asks this Court to revisit its decision
to affirm Appellant’s conviction for the offense of indecency with a child. Rehearing
is appropriate because, in affirming the trial court verdict, the Court misapplied the
excited utteranc exception to the hearsay rule to statements made in one’s sleep. For
that reason, Appellant asks the Court to reconsider its ruling and to reverse the trial
Court’s admission of clearly inflammatory and uniquely unreliable hearsay evidence.
II. SUMMARY OF ARGUMENT
Appellant submits that the Court’s finding that “somniloquy” is admissible
hearsay under the excited utterance exception to the hearsay rule is erroneous.
Specifically, Appellant contended at trial, in his Appellate brief, and contends again
in this motion for rehearing, that the “sleep talk” from the Complainant does not
qualify as an excited utterance because it is not a conscious reflection of the thoughts
of the Compalinant, but rather unconscious banter.
III. ARGUMENT AND AUTHORITY
In asserting its position that the sleep talk of the Complainant was properly
admitted, the Court suggested that the primary Texas case relied upon by Appellant,
Mayfield v State, 25 S.W.2d 833 (Tex. Crim. App. 1930), though validly decided, no
longer applied because the enactment of the Texas Rules of Evidence rendered it
1 moot as it applied to the facts of this case. This evaluation is seriously flawed and
should be reconsidered.
In finding that statements made by the Complainant while unconscious in a
murder case against the Defendant were inadmissible, the Texas Court of Criminal
Appeals in Mayfield found that when a “declaration is offered, it must appear that the
declarant was conscious.” Id. at 834. This language was at least impliedly recognized
by this Court in its decision as a valid interpretation of the common law. The Court,
however, then erroneously concluded that with the codification of the “excited
utterance” rule in the Texas Rule of Evidence, the Mayfield requirement that a person
actually be conscious when a declaration is made for it to be admissible, somehow
went away. It was then concluded that Appellant’s proper objection (based on the
Court’s apparent concession of the questionable reliability of statements made in
one’s sleep), should have been under Rules 402 and 403.
Whereas certainly Appellant could have objected that an unconscious outcry
is irrelevant under Rule 402, the inadmissible hearsay quality of the such an outcry
renders a Rule 403 balancing objection not only unnecessary, but inappropriate (there
can be no prejudicial vs probative balancing test where the proffered testimony is
inadmissible). The suggestion that the excited utterance hearsay exception, based
entirely on the premise that such statements are admissible because they are reliable,
2 should apply to an outcry made while one is unconscious, goes against the entire
basis of the hearsay exception. This is the sound holding in Commonwealth v
Almeida, 433 Mass. 717, 746 N.E.2d 139 (2001), where the Court held “(a)dmitting
hearsay evidence of statements made while a person is sleeping, so-called ‘sleep talk,’
would run counter to one of the central principles governing the admissibility of
evidence, namely, that the proffered material is reliable.” Almeida at 719.
It should be noted that Rule 803 of the Massachusetts Guide to Evidence, like
Rule 803 of the Texas Rules of Evidence, allows excited utterances as an exception
to the hearsay rule, yet decided Almeida as it did. Similarly the rules of evidence in
Nebraska, Georgia and Minnesota all have a Rule 803, yet in such states sleep talk
has not been deemed admissible as an excited utterance. See State v. Alan, 12 Neb.
App. 261, 670 N.W.2d 814 (2003) (expressions of a person made while asleep are not
admissible as spontaneous statements, since they proceed from an unconscious and
irresponsible condition. It has been said that such expressions have little or no
meaning, are as likely to refer to unreal facts or conditions as to things real, and are
wholly unreliable) Godfrey v. State 258 Ga. 28, 365 S.E.2d 93,94 (1998) (sleep talk
not sufficiently reliable to merit admission in evidence); State v. Posten 302 N.W.2d
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ACCEPTED 01-14-00174-cr FIRST COURT OF APPEALS HOUSTON, TEXAS 5/1/2015 11:58:57 PM CHRISTOPHER PRINE CLERK
CASE NO. 01-14-00174-CR
IN THE COURT OF APPEALS FOR THE FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS FIRST JUDICIAL DISTRICT OF TEXAS5/1/2015 11:58:57 PM CHRISTOPHER A. PRINE ************************* Clerk
STEPHEN CLARK WEBB, Appellant
vs.
THE STATE OF TEXAS, Appellee
***********************
Appeal from the 337TH Judicial District Court of Harris County, Texas Trial Court Cause No. 1389676
**************************
APPELLANT’S MOTION FOR REHEARING OF THE COURT’S APRIL 2, 2015 JUDGMENT
***************************
ORAL ARGUMENT JOHN S. COSSUM REQUESTED TSB# 04854500 440 Louisiana, Suite 900 Houston, Texas 77002 Telephone: (713) 222-6134 Facsimile: (713) 222-6144 jcossum@cossumlaw.com
ATTORNEY FOR APPELLANT, STEPHEN CLARK WEBB TABLE OF CONTENTS
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 III ARGUMENT AND AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 IV PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Certificate of Service and Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
i. INDEX OF AUTHORITIES
TEXAS CASES PAGE
Mayfield v. State, 114 Tex. Crim 425, 25 S.W.2d 833 (1930).. . . . . . . . . . . . . 1,2
CASES FROM OTHER JURISDICTIONS
Commonwealth v Almeida, 433 Mass. 717, 746 N.E.2d 139 (2001). . . . . . . . . . 3
State v. Alan, 12 Neb. App. 261, 670 N.W.2d 814 (2003). . . . . . . . . . . . . . . . . . 3
Godfrey v. State 258 Ga. 28, 365 S.E.2d 93,94 (1998).. . . . . . . . . . . . . . . . . . . . 3
State v. Posten 302 N.W.2d 638 (Minn 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TEXAS STATUTES
TEX. R. EVID. 402. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
TEX. R. EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
TEX. R. EVID. 803. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ii. I. INTRODUCTION
By this motion for rehearing, Appellant asks this Court to revisit its decision
to affirm Appellant’s conviction for the offense of indecency with a child. Rehearing
is appropriate because, in affirming the trial court verdict, the Court misapplied the
excited utteranc exception to the hearsay rule to statements made in one’s sleep. For
that reason, Appellant asks the Court to reconsider its ruling and to reverse the trial
Court’s admission of clearly inflammatory and uniquely unreliable hearsay evidence.
II. SUMMARY OF ARGUMENT
Appellant submits that the Court’s finding that “somniloquy” is admissible
hearsay under the excited utterance exception to the hearsay rule is erroneous.
Specifically, Appellant contended at trial, in his Appellate brief, and contends again
in this motion for rehearing, that the “sleep talk” from the Complainant does not
qualify as an excited utterance because it is not a conscious reflection of the thoughts
of the Compalinant, but rather unconscious banter.
III. ARGUMENT AND AUTHORITY
In asserting its position that the sleep talk of the Complainant was properly
admitted, the Court suggested that the primary Texas case relied upon by Appellant,
Mayfield v State, 25 S.W.2d 833 (Tex. Crim. App. 1930), though validly decided, no
longer applied because the enactment of the Texas Rules of Evidence rendered it
1 moot as it applied to the facts of this case. This evaluation is seriously flawed and
should be reconsidered.
In finding that statements made by the Complainant while unconscious in a
murder case against the Defendant were inadmissible, the Texas Court of Criminal
Appeals in Mayfield found that when a “declaration is offered, it must appear that the
declarant was conscious.” Id. at 834. This language was at least impliedly recognized
by this Court in its decision as a valid interpretation of the common law. The Court,
however, then erroneously concluded that with the codification of the “excited
utterance” rule in the Texas Rule of Evidence, the Mayfield requirement that a person
actually be conscious when a declaration is made for it to be admissible, somehow
went away. It was then concluded that Appellant’s proper objection (based on the
Court’s apparent concession of the questionable reliability of statements made in
one’s sleep), should have been under Rules 402 and 403.
Whereas certainly Appellant could have objected that an unconscious outcry
is irrelevant under Rule 402, the inadmissible hearsay quality of the such an outcry
renders a Rule 403 balancing objection not only unnecessary, but inappropriate (there
can be no prejudicial vs probative balancing test where the proffered testimony is
inadmissible). The suggestion that the excited utterance hearsay exception, based
entirely on the premise that such statements are admissible because they are reliable,
2 should apply to an outcry made while one is unconscious, goes against the entire
basis of the hearsay exception. This is the sound holding in Commonwealth v
Almeida, 433 Mass. 717, 746 N.E.2d 139 (2001), where the Court held “(a)dmitting
hearsay evidence of statements made while a person is sleeping, so-called ‘sleep talk,’
would run counter to one of the central principles governing the admissibility of
evidence, namely, that the proffered material is reliable.” Almeida at 719.
It should be noted that Rule 803 of the Massachusetts Guide to Evidence, like
Rule 803 of the Texas Rules of Evidence, allows excited utterances as an exception
to the hearsay rule, yet decided Almeida as it did. Similarly the rules of evidence in
Nebraska, Georgia and Minnesota all have a Rule 803, yet in such states sleep talk
has not been deemed admissible as an excited utterance. See State v. Alan, 12 Neb.
App. 261, 670 N.W.2d 814 (2003) (expressions of a person made while asleep are not
admissible as spontaneous statements, since they proceed from an unconscious and
irresponsible condition. It has been said that such expressions have little or no
meaning, are as likely to refer to unreal facts or conditions as to things real, and are
wholly unreliable) Godfrey v. State 258 Ga. 28, 365 S.E.2d 93,94 (1998) (sleep talk
not sufficiently reliable to merit admission in evidence); State v. Posten 302 N.W.2d
638 (Minn 1981)(while dreams are in some sense connected to waking hour’s desires
and anxieties, there is no indication that dream sequences mirror actual events”).
3 It is imperative that the Court consider whether there is a sufficient indicia of
reliability to justify the application of a hearsay exception before considering an
entire category of statements admissible, particularly statements which by their nature
are universally considered suspect. This did not occur in the Court’s original decision.
In light of the mistake of the Court in concluding that the admission of
outbursts by the Complainant while sleeping should be allowed, the Court should
further reconsider the other errors identified by Appellate in his brief, consider their
cummulative effect, and find reversible error.
IV. PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the Court should reconsider
its opinion rendered April 2, 2015, find that reversible error appears in the record of
the trial of this case, reverse the conviction of Appellant and remand the case to the
trial court for further proceedings.
Respectfully submitted:
/s/ John S. Cossum JOHN S. COSSUM TSB# 04854500 440 Louisiana, Suite 900 Houston, Texas 77002 Telephone: (713) 222-6134 Facsimile: (713) 222-6144 E-mail: jcossum@cossumlaw.com
ATTORNEY FOR APPELLANT, STEPHEN CLARK WEBB
4 CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d) and (e),
I certify that a true and correct copy of the foregoing document has been delivered to
counsel for the State of Texas, Eric Kugler, via electronic transmission, on this, the
1st day of May, 2015, as follows:
ERIC KUGLER, Assistant District Attorney TSB # 796910 E-Mail: kugler_eric@dao.hctx.net HARRIS COUNTY DISTRICT ATTORNEY’S OFFICE 1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: (713) 755-5826
/s/ John S. Cossum JOHN S. COSSUM TSB# 04854500 440 Louisiana, Suite 900 Houston, Texas 77002 Telephone: (713) 222-6134 Facsimile: (713) 222-6144 E-mail: jcossum@cossumlaw.com