NO. 07-02-0145-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A AUGUST 17, 2004

______________________________ CLIFFORD SCOTT MEDLEY, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 2 51ST DI STRICT COURT OF PO TTER CO UNTY; NO. 35,170-C; HONORABLE PATRICK A. PIRTLE, JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORA NDUM OPIN ION Appellant

Clifford Scott M edley appeals from his conv iction for murder and punishment of 40 year

s incarcer

ation. We affirm.
On or about May

30, 1995, Frankie Stei nbrecher was strangl ed to death in Potter County. Appe llant was indicted for mur

der in connecti on with Ste inbrecher’s death.-2-

Appellant

pled not gui lty to the ch arge and was tried to a jury in April 1998. This court, in Cause No. 07-98-0225-C R, rever sed the resulti ng convi ction and remanded the case for new trial.
Followi ng retrial, held from March 5-8, 2002, a jury found appellant

guilty of murder and assessed hispunishment at 40 y ears impris onment in the Texas Department of Criminal Justice, Ins titutional D ivisio n. Appellant ti mely filed a mot ion for new t rial and gave noti ce of appeal. Appointed counsel for appel lant has filed a M otion to Withdraw as couns el and a brief in support the reof. In support of the motion to wit hdraw, coun sel has cert ified that, in compliance with Anders v. California , 386 U.S. 738, 744 -45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the record has been dili gently r eviewe d and that in the op inion of counsel, the record reflects no re versible error or grounds upon w hich a non-friv olous appeal can arguablybe predicated. Counsel thus concludes that a ppeal would be frivolous . Counsel has discussed why, under the contro lling auth orities, th ere is noarguably reversi ble error in the trial court pro ceedin gs or judgm ents. See H igh v. State , 573 S.W.2d 807, 813 (Tex.Cri m.App. 1978).
Counsel has certified tha t a copy of the Anders brief and Motio n to Withdraw as Counsel have been ser ved on appell ant, a nd that counsel has appropriatel y advi sed appellant

of his rig ht to revi ew the record and file a pro se response. Appel lanthas filed
a pro se response. By his r esponse, appellant

presents 20 issues. These 20 issues are generallyrelated tofour substantive areas: (1) whether th e retrial of appellant offended the1 Appellant’s double jeopardy arguments depend on a finding th at the trial court acted intentionally or with conscious disre g ard of appellant’s Constitu tional rights in admitting the prior t rial testi mony and, therefore, our conclusi on that the tri al court did not err in admitting this testimony for impeachment pur poses res olves appellant’s double jeopardy complaints. See Burks v. United States , 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Ex parte Mitchell , 977 S.W.2d 575 (Tex.Crim.App. 1997); McGlothli n v. State , 896 S.W .2d 183, 188 (Tex.Crim.App . 1995). -3- Con stitu tional guarantee against double jeopa rdy, (2) whether the trial court erred in admitting appellant’s testimony from the first tri al to impeach hi s inconsistent testimony at the retrial, (3) whet her the trial court acted in such a precipitate and reckless manner that itconsciously

disregar

ded appellant’s Constitutional rights, and (4) w hether there w as sufficient factual ev idence presented to support the conviction.
Issue groups one t hrough three in the pro se response turn on the questi on of the propri ety of the trial cour t’s admissi on of appellant’s prior testimony for purposes of impeachment. 1 We agree with appell ate counsel that prior testi mony is admis sible for impeachment

purposes if freely and voluntarily given, even if obtain ed i n violati on of prophylacticrules desi gned to protec t Constituti onal rights. See Michigan v. Harvey , 494 U.S. 344, 351, 110 S.Ct . 1176, 108 L.Ed.2d 293 (1990); Harris v. New York , 401 U.S. 222, 224-25, 91 S.Ct. 643 , 28 L.Ed.2d 1 (1971); Garza v . State , 18 S.W.3d 813, 826-27 (Tex.App.–Fort W orth 2000, pet. ref’d ).
Prior to allow ing the State to use appellant’ s pr ior t estimo ny to impeach his testimony

in the present

case, the tri al court held ahearing on t he voluntar iness of the pri or testimony

and found that the testi mony was voluntari ly gi ven. There is sufficient e vidence in the record of the retrial and the first trial to support the trial court’s volu ntarine ss find ing.-4-

The trial court did not abuse its discr etion in admitti ng the prior test imony for impeac hment purposes. See Green v

. State , 934 S.W .2d 92, 101-02 (Tex.Crim.App . 1996). The evidence i s similar to that presented at the first trial and referenced in our opinion on the first appeal. The ev idence is cl early l egally and factually

sufficient to suppor

t convict ion.
We have made an independ ent examin atio n of t he record to determine wheth er there are any non-

frivolous g rounds on which an appeal could arguably be founded. See Penson v. Ohio , 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988 ); Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991 ). W e have found no such gr ounds. We agree with appel late counsel t hat the appeal iswithout merit.
Accordingl y, counsel’s M otion to Withdraw is g ranted. The judg ment of th e tria l court is affirmed.

Phil Johnson Chief Justice Do not publish

.