Thomas Little v. State

Opinion

ACCEPTED 04-14-00618-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 5/26/2015 11:18:29 AM KEITH HOTTLE CLERK

No. 04-14-00618-CR FILED IN 4th COURT OF APPEALS IN THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS AT SAN ANTONIO, TEXAS 5/26/2015 11:18:29 AM KEITH E. HOTTLE Clerk

THOMAS LITTLE

Appellant vs.

THE STATE OF TEXAS

Appellee

On Appeal from the 25th District Court of Guadalupe County, Texas Hon. William D. Old, III Presiding Trial Court Cause No. 14-0698-CR-C

APPELLANT’S REPLY BRIEF

Gregory Sherwood Attorney at Law P.O. Box 200613 Austin, Texas 78720-0613 (512) 484-9029 Email: gsherwood@mail.com State Bar No. 18254600

Court-Appointed Attorney on Appeal for Appellant Thomas Little Table of Contents

Table of Contents ............................................................................................ i

Index of Authorities ...................................................................................... ii

Conclusion and Prayer for Relief ................................................................... 3

Certificate of Service ..................................................................................... 3

Certification of Word Count Compliance ...................................................... 3

i Index of Authorities

Statutes and Rule

Tex. Code Crim. Pro. art. 38.22, § 2(a)(5) ..................................................... 2

Tex. Code Crim. Pro. art. 38.22, § 8(2) ......................................................... 2

Tex. R. App. P. 9.4(i)(1) ................................................................................ 3

ii No. 04-14-00618-CR

IN THE FOURTH COURT OF APPEALS AT SAN ANTONIO, TEXAS

On Appeal from the 25th District Court of Guadalupe County, Texas Hon. William D. Old, III Presiding Trial Court Cause No. 14-0698-CR-C

The State’s Brief fails to discuss appellant’s argument at pages 15-19

and 22-26 (pdf 23-27 and pdf 30-34) of Appellant’s Brief that the warnings

read to appellant by FBI Special Agent Michael Carlisle, which did not

include the right to terminate the interview at any time, did not comply with

state law because Selma Police Department Sergeant Keith Osborn was

present in the interrogation room with federal agents, which renders the

1 “substantial compliance” exception for federal agents reading these

warnings under Tex. Code Crim. Pro. art. 38.22, § 8(2) inapplicable. The

trial court’s April 9, 2015 findings of fact and conclusions of law also fail to

mention Selma Police Department Sgt. Osborn, instead only stating that FBI

Special Agent Carlisle conducted the interview and read warnings that

complied with federal law.

As previously stated at page 17 (pdf 25) of Appellant’s Brief, “If the

only interrogators had been FBI agents, then appellant’s video statement

would be admissible under art. 38.22, § 8(2) since the ‘Miranda’ warnings

read by FBI agent Carlisle complied with federal law.” But because Selma

Police Dept. Sgt. Osborn was present in the interrogation room and

participated in the interview by asking questions, appellant’s video statement

was taken by both federal and state law enforcement officers, rendering art.

38.22, § 8(2) inapplicable. The fifth warning in art. 38.22, § 2(a)(5)

concerning Mr. Little’s right to terminate the interview at any time should

have been read to him since the interview was conducted by both federal and

state law enforcement officers, and the trial court erred in its findings of fact

and conclusions of law in holding that art. 38.22, § 8(2) applied.

2 Conclusion and Prayer for Relief

WHEREFORE, PREMISES CONSIDERED, appellant THOMAS

LITTLE prays that this court grant one or both of the jury charge error issues

presented, and reverse and remand for a new trial if either issues are granted.

Respectfully submitted, /s/ Gregory Sherwood GREGORY SHERWOOD Attorney at Law P.O. Box 200613 Austin, Texas 78720-0613 (512) 484-9029 Email: gsherwood@mail.com State Bar No. 18254600

Court-Appointed Attorney on Appeal for Appellant Thomas Little

Certificate of Service

I hereby certify that a true copy of this document was served by email upon appellee’s attorney Edward F. Shaughnessy, III, 206 E. Locust, San Antonio, Texas, 78212, on May 26, 2015 at the following email address: Shaughnessy727@gmail.com. /s/ Gregory Sherwood Certification of Word Count Compliance

According to the WordPerfect program used to create this document, there are 315 words in this brief, excluding the portions listed in Tex. R. App. P. 9.4(i)(1). /s/ Gregory Sherwood 3