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

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

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

2

“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.

3

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