NO. 06-14-00096-CR

_________________________________________________________________

IN THE COURT OF APPEALS

SIXTH DISTRICT

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

ACCEPTED

06-14-00096-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

7/31/2015 12:18:41 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 7/31/2015 12:18:41 PM DEBBIE AUTREY Clerk
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

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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

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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).

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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

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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.

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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

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