NO. 06

- 15

- 00113

- CR

IN THE COURT OF APPEALS FOR THE SIXTH APPELLATE DISTRICT AT TEXARKANA

CASEY AUSTIN JONES

VS.

THE STATE OF TEXAS

APPEALED FROM THE 71 ST DISTRICT COURT, HARRISON COUNTY TRIAL CAUSE NO. 12,0154X

BRIEF FOR CASEY AUSTIN JONES , APPELLANT

Hough

- Lewis (“Lew”) Dunn Attorney at Law 201 E. Methvin, Suite 102 P.O. Box 2226 Longview, TX 75606 Tel. 903

- 757

- 6711 Fax 903

- 757

- 6712 Email: dunn@texramp.net

Appellant Respectfully Requests Oral Argument ACCEPTED 06-15-00113-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/21/2015 3:35:03 PM DEBBIE AUTREY

CLERKSTATEMENT REGARDING PARTIES TO THIS APPEAL [RULE 38.1(a) TEX.R.APP. PROC.]

CASEY AUSTIN JONES Appellant Stephen Smith Attorney at Law Texas State Bar #18684700 501 Spur 63, Suite C

- 6 Longview, TX 75601 Trial Counsel for Appellant Jon Hyatt Attorney at Law Texas State Bar #24072161 P.O. Box 7935 Longview, TX 75607 Counsel for Appellant in Habeas Corpus Proceeding Coke Solomon, Criminal District Attorney Texas State Bar #24041954 Patricia Colleen Clark, Assistant Criminal District Attorney Texas State Bar #04293800 Kristin M. Kaye, Assistant Criminal District Attorney Texas State Bar #24068106 P.O. Box 776 Marshall, TX 75671 Counsel for the State at Pre

- Trial and Trial Laura M. Carpenter , Assista nt Criminal District Attorney Texas State Bar #08618050 P.O. Box 776 Marshall, TX 75671 Counsel for State on Appeal

iiSTATEMENT REGARDING PARTIES TO THIS APPEAL (CONTINUED) Hough

- Lewis (”Lew”) Dunn Attorney at Law P.O. Box 2226 Longview, TX 75606 Counsel for Appellant on Appeal Texas State Bar No. 06244600

iiiTABLE OF CONTENTS

PAGE

STATEMENT REGARDING PARTIES TO THIS APPEAL ..... ii

TABLE OF CONTENTS ................................................ iv

TABLE O F AUTHORITIES ............................................. vii

STATEMENT OF THE CASE .......................................... xii i

ISSUES PRESEN TED .................................................... xiv

STATEMENT OF FACTS ............................................... 2

THE GUILTY PLEA ........................................... 2

PUNISHMENT HEARING ................................... 2

HEARING ON MOTION FOR NEW TRIAL ............. 9

SUMMA RY OF THE ARGUMENT ................................. 10 FIRST ISSUE, RESTATED

.......................................... 10

THE EVIDENCE WAS LEGALLY INSUFFICIENT

............ 10 SECOND ISSUE, RESTATED ....................................... 10

THE EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE THE ALLEGATIONS IN THE INDICTMENT AS AMENDED

THIRD ISSUE, RESTATED ........................................... 10 SINCE THE EVIDENCE IS LEGALLY INSUFFICIENT, THERE EXISTS A DOUBLE JEOPARDY VIOLATION UNDER BLOCKBERGER

ivPAGE

FACTS

............................................................... 11

THE LAW

........................................................... 12

ANALYSIS

......................................................... 14 FOURTH ISSUE, RESTATED .......................................... 17

THE JUDGMENT IS VOID BECAUSE APPELLANT WAS NOT GIVEN CREDIT FOR TIME SPENT UNDER HOUSE ARREST FIFTH ISSUE, RESTATED

.............................................. 17

THE JUDGMENT IS DEFECTIVE AND SHOULD BE REFORMED TO GIVE APPELLANT CREDIT FOR TIME SPENT UNDER HOUSE ARREST SIXTH ISSUE, RESTATED

............................................ 17

THE TRIAL COURT REVERSIBLY ERRED WHEN IT DID NOT GIVE APPELLANT CREDIT ON HIS SENTENCE FOR TIME HE SPENT UNDER HOUSE ARREST, WHICH WAS THE EQUIVALE NT UNDER ART. 42.035, TEX. CODE CRIM. PROC., TO TIME SPENT INCARCERATED

FACTS

.............................................................. 17

LAW AND ANALYSIS

........................................... 19 SEVENTH ISSUE, RESTATED

........................................ 27

THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO SUPPRESS APPELLANT’S STATEMENT

FACTS

............................................................... 27

vPAGE

LAW

............................................................... 33

FRAUD AND RELATED CONCEPTS .............. 35

ANALYSIS

....................................................... 37

HARM ANALYSIS

.............................................. 40

PRAYER FOR RELIEF .................................................. 41

CERTIFIC ATE OF SERVICE .......................................... 42

CE RTIFIC ATE OF COMPLIANCE ................................. 42

v iTABLE OF AUTHORITIES

CASES PAGE Bigon v. State , 252 S.W.3d 360 (Tex. Crim. App. 2008) ............... 16 Blockberger v. United States , 284 U.S. 299 (1932)

...................... 16

Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010) ............. 15 City of Dallas v. Half Price Books, Records, Magazines, Inc ., ....... 34

- 35 883 S.W.2d 374 (Tex. App.

– Dallas 1994, no writ)

Dedo v. State , 680 A.2d 464 (Md. Ct. App. 1996) ..................... 23 , 24 DeSantis v. Wackenhut Corp ., 793 S.W.2d 670 (Tex. 1990) ........ 40 Ex parte Brister , 801 S.W.2d 833 (Tex. 1990)

... .................... 20 Ex parte Patterson , 740 S.W.2d 766 (Tex. Crim. App. 1987)

... ... 20 overruled on other grounds, Ex parte Be ck , 769 S.W.2d 525 (Tex. Crim. App. 1989) Fifth Club, Inc. v. Ramirez , 196 S.W.3d 788 (Tex. 2006) ............. 35 Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 40 960 S.W.2d 41 (Tex. 1998). Frazier v. Cupp , 394 U.S. 731 (1969) .................................... 38 Gonzales v. State, 67 S.W.3d 910 (Tex. Crim. App. 2002)

............ 34

Grant v. State , 659 P

. 2d 878 (Nev. 1983)

... ... ... ... ... ... ... ... ... ... ... 23 Grant Thornton LLP v. Prospect High Income Fund , .................. 40 314 S.W.3d 9 13 (Tex. 2010).

Holmes v. State , 323 S.W.3d 16 3 (Tex. Crim. App. 2010) ............ 4 1

viiPAGE In re FirstMerit Bank, N.A., 52 S.W. 3d 749 (Tex. 2001) ............. 41

In re McPhee , 442 A.2d 1285 (Vt. 1982) ................................ 23

In re Winship , 397 U.S. 358 (1970) ......................................... 14

Jackson v. Virginia , 443 U.S. 307 (1979)

.................................. 14 Lynumn v. Illinois , 372 U.S. 528 (1963)

........................... 38 , 39 , 40

Moran v. Burdine , 475 U.S. 412 (1986) ................................... 38 Nygren v. State , 658 P.2d 141 (Alaska Ct. App. 1983) ................. 23

Pierce v. State , 32 S.W.3d 247 (Tex. Crim. App. 2000) .............. 39

Pham v. State , 175 S.W.3d 767 (Tex. Crim. App. 2005) .............. 33

Puente v. State , 320 S.W.3d 352 (Tex. Crim, App. 2010) ............ 14

State v. Fellhauer , 943 P.2d 123 (Ct. App.),

............................ 23 cert. denied , 942 P.2d 189 (1997).

State v. Kelekolio , 849 P.2d 58 (Hawaii 1993)

......................... 39 State v. Kelly , 204 S.W.3d 80 8 (Tex. Crim. App. 2006)

.............. 33 State v. Reyes , 504 A.2d 43 (N.J. Super. Ct. App. Div.) ............. 23 cert. denied , 511 A.2d 671 (1986);

State v. Robinson , 334 S.W.3d 776 (Tex. Crim. App. 2011)

......... 33

Studer v. State , 799 S.W.2d 263 (Tex. Crim. App. 1990) ............ 16 Tagorda v. State , 977 S.W.2d 632 ....................................... 21, 22 (Tex. A pp.

– Fort Worth 1998, no pet.)

viiiPAGE

CASE Taylor Elec. Servs., Inc. v. Armstrong Elec. Supply Co ., .......... 40 167 S.W.3d 522, (Tex. App.

- Fort Worth 2005, no pet.) Webb v. State, 278 S.W.2d 158 (Tex. Crim.App. 1955) .............. 15

W ilson v. State , 536 S.W.2d 375 (Tex.Crim.App. 1976)

............. 14

Wilson v. State , 311 S.W.3d 452 (Tex. Crim. App. 2010) ........... 39

Yellowbear v. State , 874 P.2d 241 (Wyo. 1994) ........................ 23

STATUTES AND RULES

U.S. CONST.

Fif th Amendment .......................................... 12 , 27 , 40

S ixth Amendment ..........................................

..... 13 , 16 , 27

Fourteenth Amendment ............... 13 , 14 , 15 , 20 , 27 , 38 , 39 , 40

TEX. CONST. Art. 1, §10

........................................................... 13 , 27 Art. 1, §14 ........................................................... 13 , 16 Art. 1, §19 ........................................................... 13 , 14 Art. 5, §12 ........................................................... 16 Art. 16, §1(a) ........................................................ 34 , 38

ixPAGE

TEX. BUS. & COMM. CODE Chapter 17

.......................................................... 36 §17.01 ............................................................... 36 Chapter 27 .......................................................... 36 §27.01 ............................................................... 37 §27.02 ................................................................ 37

TEX CODE CRIM. PROC.

Art. 1.04 .............................................................. 13 , 14

Art. 1.05 ...................................................

........... 13

Art. 1.10 .............................................................. 13 Art. 1.14(b) ........................................................... 16

Art. 2.12 .............................................................. 34

Art. 2.13 ............................................................. 34 Art. 2.13(a) ......................................................... 34

Art. 11.21

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 20

Art. 11.22

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 20

Art. 28.10 ............................................................ 12 Art. 28.10(a)

............................................................ 12 , 13

Art. 28.11 ............................................................ 12

xPAGE

TEX CODE CRIM. PROC.

Art. 38.21 ............................................................ 27

Art. 38.22 ............................................................ 27

Art. 38.23 ................................................... 27 , 33 , 34 , 39 Art. 42.03 Sec. 2(a) ............................................... 21 , 25

Art. 42.035 ............................................. 19 , 21 , 24 , 25

TEX. PENAL CODE Chapter 32 ......................................................... 36 §32.42 .............................................................. 36 §32.42 (a)(2) ....................................................... 36 §32.42 (b) (12)(B)..................................................... 36 , 40

TEX. R. APP. PROC. Rule 44.2(a) ...................................................... 40

OTHER B. FEUCHTER, “CRIMINAL LAW

– Home Alone: Why House .. 22, 23 Arrest Doesn’t Qualify for Presentence Confinement Credit in New Mexico

– State v. Fellhauer , ” 28 N EW M EXICO L AW R EV . 519 (Summer 1998). “Euclid’s Elements, Book I, Common Notions” at

............ ....... 24 aleph0.clark.edu/~djoyce/elements/bookl/cn.html

xiPAGE

OTHER

R ESTATEMENT OF C ONTRACTS (S ECOND )

............... .......... 35, 37 , 39

- 40 § 159 ........................................................ 35 § 162 ........................................................ 35 § 164 ....................................................... 35 § 167 ...................................................... 36 All statutory and rule citations are to the current version found in Vernon’s Annotated Codes and Statutes.

xi iSTATEMENT OF THE CASE Appellant was charged with three counts of sexual assault of a minor (under age 17), with the additional allegation that each such offense was with a person whom he was prohibited from marrying or purporting to marry or with whom he was prohibited from living under the appearance of being married. However, the indictment was subsequently amended to delete the latter allegations. Appellant waived a jury trial and pleaded guilty to the trial court

. After hearing evidence on punishment, the trial court assessed a sentence of three (3) years c onfinement in the Texas Department of Criminal Justice,

Institutional Division, for each count, to run concurrently. A motion for new trial was subsequently heard and denied, and the cause is now before this

Honorable Court.

xii iISSUES PRESENTED

FIRST ISSUE: THE EVIDENCE WAS LEGALLY INSUFFICIENT

SECOND ISSUE: THE EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE THE ALLEGATIONS IN THE INDICTMENT AS AMENDED THIRD ISSUE: SINCE THE EVIDENCE IS LEGALLY INSUFFICIENT, THERE EXISTS A DOUBLE JEOPARDY VIOLATION UNDER BLOCKBERGER

FOURTH ISSUE: THE JUDGMENT IS VOID BECAUSE APPELLANT WAS NOT GIVEN CREDIT FOR TIME SPENT UNDER HOUSE ARREST

FIFTH ISSUE: THE JUDGMENT IS D EFECTIVE AND SHOULD BE REFORMED TO GIVE APPELLANT CREDIT FOR TIME SPENT UNDER HOUSE ARREST

SIXTH ISSUE: THE TRIAL COURT REVERSIBLY ERRED WHEN IT DID NOT GIVE APPELLANT CREDIT ON HIS SENTENCE FOR TIME HE SPENT UNDER HOUSE ARREST, WHICH WAS THE EQUIVALENT UNDER ART. 42.035, TEX. CODE CRIM. PROC., TO TIME SPENT INCARCERATED

SEVENTH ISSUE: THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO SUPPRESS APPELLANT’S STATEMENT

xiv1 NO. 06

- 15

- 00113

- CR

IN THE COURT OF APPEALS FOR THE SIXTH APPELLATE DISTRICT AT TEXARKANA

CASEY AUSTIN JONES

VS.

THE STATE OF TEXAS

APPEALED FROM THE 71 ST DISTRICT COURT, HARRISON COUNTY TRIAL CAUSE NO. 12

- 0154X

BRIEF FOR CASEY AUSTIN JONES , APPELL ANT

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: COMES NOW CASEY AUSTIN JONES, Appellant, on appeal

in Cause No. 12

- 0154X, and the “Judgment of Conviction” of the District

Court for the 71 st Judicial District of Harrison County, Texas, wherein he was found guilty of three (3) counts of the offense of sexual assault of a child under 17, a second degree felony, and sentenced by the Honorable Brad Morin, to three (3) years on each count in the Texas Department of Criminal Justice, Institutional Divisi on , to run concurrently , in which Appellant was Defendant, and in which the State of Texas was plaintiff and is now Appellee.2 STATEMENT OF FACTS

THE GUILTY PLEA

O n June 12, 2015, Appellant waived a jury trial and entered a plea of “guilty” to the indictme nt (5 RR 12) as amended, executing several documents as a part of his plea , following which the trial court accepted the guilty plea. After a recess of several days, the trial court reconvened on June

18 , 2015, to hear evidence at the punishment phase (6 RR).

PUNISHMENT HEARING On June 18 the State put on evidence from the fo llowing witnesses on punishment : Detec tive Cindy Black (6 RR 6), M____ F_____ (6 RR 64),

and Dana Belon y (6 RR 126). Appellant elicited evidence from Anna

Dowden and DeA lisa Dean (6 RR 149 and 161).

T hrough D et. Black the State introduced a video of Appellant’s statement, State’s Exhibit # 1 (6 RR 8).

On cross

- examination it was brought out that MF, at age 16 and one

half, was reluctant to come forward in the investigation or to pro secute Appellant (6 RR 21), that she a willing participant in the sexual acts with Appellant (6 RR 11) , to the point of getting into bed with him and his wife (6 RR 26

- 27), and that she continued (even while Appellant was on pre

- trial3 release and while he and his wife Heather 1 were both prohibited from contacting her) to approach Appellant and his wife (6 RR 29

- 32). Appellant put into evidence the “phone dump” from MF’s phone, showing the entire contents of same (6 RR 37 ff). Det. Black agreed that Appella nt had no criminal history (6 RR 50).

MF was the State’s next witness (6 RR 63). At the time of trial she was 20 years old; date of birth: June 8, 1995. She identified Appellant as her

“half

- uncle” because he was her father’s half

- brother; she had known h im all her life (6 RR 63

- 64). In December 2011 MF was in habit of occasionally sleeping at Appellant’s house on the couch (6 RR 65). However, Appellant had a roommate, Wade, staying there and suggested that MF stay in the

same bed in the bedroom wh ere he and his wife slept. For a few nights nothing happened, but one morning she awoke and found Appellant fondling her (6 RR 67

- 68). Eventually the touching led to sex between the two with the wife, Heather, present (6 RR 70). That led to conversations about th e three (Appellant, his wife and MF) living in a polygamous sort of arrangement (6 RR 71). The sexual activity bet ween them continued into 2012, when it was discovered by her parents (6 RR 75 ff). The State then offered State’s Ex. # 2, a cellphone video of Appellant masturbating, which

1 Arising	out	of	these	events,	Heather	Jones	was	indicted	for	an	offense	of	sexual4 he sent to MF in exchange for videos and photos of her (6 RR 81). Among other reasons for having sex with Appellant, MF testified that “it was nice to have that attention” (6 RR 83). On cross

- examination MF also stated that the relationship she had with Appellant “was satisfactory” to each of them, but, in retrospect “ very unwise” (6 RR 91). MF testified that when her mother

discovered this in early 2012, MF did not want her to tell the police or for anything bad to happen to Appellant and his wife (6 RR 104). Mf stated that she did not think Appellant posed a risk of harm to her in any way (6 RR 105). She considered her life at the time of trial to be fairly normal and pleasant with no emotional problems or issues (6 RR 107 ). Next, Dana Belony, MF’s mother, testified for the State (6 RR 125). She found the cellphone messages on MF’s phone in February 2012 (6 RR 127). However, she did not call the police at that time; MF did not reveal the

true extent of the sexual activitie s she and Appellant had engaged in; MF begged Ms. Belony not to report the incidents (6 RR 131). However, in March Ms. Belony accessed MF’s phone and saw a video that was “very explicit” (6 RR 132). Thereafter, that same evening the witness decided that

ma tters would come out; she received a call from Appellant and told him he “was going to jail” (6 RR 134

- 135). The witness opined that a five year5 sentence would not be enough . “I would throw him under the bus if it was

me ” (6 RR 147). With that, the State rested its case

- in

- chief on punishment (6 RR 148 ). Appellant called Anna Dowden (6 RR 148). She state d that she knew both Appellant and his wife, Heather (6 RR 150). Ms. Dowden testified about an incident at a job fair which she and Heather attended togethe r. At a store called “Game Stop” Heather was concerned about violating a restraining order, sin ce MF was also present (6 RR 153

- 54 ). MF had initiated a conversation with Heather, and Heather was trying to avoid MF (6 RR 154). Next, DeAlisa Dean testified that Appellant was her son

- in

- law (6 RR 160). Heather and Appellant had been married 10 years; Ms. Dean thought he was “a wonderful guy” (6 RR 162). She testified that she did not think Appellant presented a risk of harm to children (6 RR 164). She did not think society would benefit from Appellant being sent to prison (6 RR 166). However, she did think that probation would be a better alternative ( id.). The court recessed after that testimony, setting the following Monday as a further date for testimony ( 6 RR 173). On June 22, 2015, the hearing on punishment resumed (7 RR). At the start, the trial court renumbered the State’s exhibits, so that what were6 formerly State’s 1 and 2, became now State’s 6 and 7 (7 RR 7). Counsel for Appellant then offered into e vidence (received without objection) Defense Exhibit # 2, a letter from Darren Williams, the probation officer who had supervised Appellant’s pre

- trial activities (7 RR 6

- 7). Alicia Ratcliff next testified on behalf of Appellant (7 RR 8). She was

an offic er at a local bank; Appellant was her nephew (7 RR 9). She understood the nature of the charges and that the trial court was considering the appropriate punishment in the case (7 RR 10). She related a brief history of Appellant’s accomplishments and recomm ended probation for him (7 RR

12

- 13 ). Donna Salee then testified, a retired RN (7 RR 30). Her children had gone to school with Appellant; that is how she knew him; he helped do fund

raisers at the Elks Lodge (7 RR 33). Ms. Salee stated that Appellant did n ot pose a risk of harm to the community (7 RR 34) or hurt children (7 RR 35). Next to testify for Appellant was Roger Jones, a pipe welder for Kellogg Brown and Root (7 RR 45

- 46). He was Appellant’s father (7 RR 46). He spoke well of his son (7 RR 47

- 48). He did not think Appellant posed a risk to any child or a threat to anybody (7 RR 56

- 57 ). He could not think of any reason for sending Appellant to prison (7 RR 59). He witnessed7 Jeff (MF’s step

- father) beat up Appellant when Jeff found out from MF

about her conduct with Appellant (7 RR 61). Then Stephanie Wells testified, an instructor in information technology at TSTC (7 RR 65

- 66). Appellant was one of her students there (7 RR 66). She described Appellant as a “model student” and very diligent

in his co llege work (7 RR 68). Appellant also helped set up gaming club (an “IT club”) there with about 20 to 30 students (7 RR 68

- 69). After the incident with MF, Appellant’s work declined and he became “withdrawn and stressed” (7 RR 70). The witness did not thin k Appellant would be any risk or harm to children (7 RR 73). Next testifying for Appellant was Jason King , an “At Home Health

Care” technic ian (7 RR 79

- 80 ). At one point in his life he had been a corrections officer at the George Beto Unit of TDCJ in Pales tine and Tennessee Colony (7 RR 81). He knew Appellant and is wife and also knew MF (7 RR 82). He characterized Appellant as not being violent, that he got along generally well with people (7 RR 87). He did not think that Appellant presented any real threat to society or to other females or children (7 RR 90

- 91 ). He favored a “deferred sentence monitored by the community” rather than imprisonment (7 RR 92).8 Ben Harbor then testified, second cousin of Appellant (7 RR 102

- 03).

He stated that he would not have a problem giving Appellant employment (7 RR 104). He did not see Appellant as a threat to the community (7 RR 106). Then Jesse Parson testified that he knew Appellant from attending classes with him at TSTC (7 RR 113). He described Appellant: “Loyal,

hone st, trustworthy... hard

- working” ; he did not believe that he presented any kind of risk or danger to the community (7 RR 115 , 116

- 17 )

. Finally, Appellant testified (7 RR 120). He admitted having sex with MF, though the dates for those offenses had been change d by the State (7 RR 130). He stated that he took full responsibility for it and did not blame MF at all (7 RR 131). He testified that, contrary to what some witnesses might have said, there were no further sexual encounters after he was beaten up and even ts were made know to MF’s parents (7 RR 132). Appellant denied any attraction to children or minors (7 RR 137). He asked the trial court to consider placing him on community supervision and gave his reasons for that (7 RR 137). Appellant stated that, altho ugh he had initially stated (at the hearing on the Motion to Suppress

– see Volume 3, RR) that his confession was a lie, he now stated that “for the most part, my confession was true...” (7 RR 152).9 Thereafter, evidence was closed and the parties proceeded t o argument (7 RR 155). Trial Counsel for Appellant argued for a deferred disposition and community supervision (7 RR 160). State’s Counsel argued for seven years imprisonment (7 RR 162). The trial court then recessed the proceedings to a later date for pro nouncement of sentence (7 RR 163). On June 24, 2015, the trial court made a formal finding of guilt to the allegations (8 RR 4), stated that he could not “in good conscience give [him] a deferred adjudication,” and therefore assessed a sentence of three (3 ) years in TDCJ (8 RR 5). He continued: “The Court will give you credit for any time served that you have toward these offenses.” Then he said: “The victim’s mother had requested five years. I gave you two years’ credit for not requiring the child to go th rough a jury trial in this matter, as well as the fact that you finally accepted responsibility in this” (8 RR 6

- 7).

HEARING ON MOTION FOR NEW TRIAL On August 10, 2015, Appellant argued his Motion for New Trial (CR 172 ff) and put on his evidence in suppor t thereof ( Supp. RR ). The Motion for New Trial was overruled (CR 188).10 SUMMARY OF THE ARGUMENT

THE EVIDENCE IS LEGALLY INSUFFICIENT TO CONVICT: THERE IS A FATAL VARIANCE BETWEEN PLEADINGS AND PROOF OF T HE YEAR OR YEARS OF THE OFFENSE; THAT FATAL VARIANC E ALSO IMPLICATES DOUBLE JEOPARDY UNDER A BLOCKBERGER ANALYSIS. THE JUDGMENT IS VOID AND/OR DEFECTIVE SINCE THE TRIAL COURT DID NOT GIVE APPELLANT CREDIT FOR TIME HE SPENT UNDER HOUSE ARREST FOR OVE R 300 DAYS WHILE AWAITING TRIAL; TEXAS LAW SPECIFICALLY AL LOWS CREDIT FOR JAIL TIME IF SOMEONE IS PLACED UNDER HOUSE ARREST AND ALSO APPLIES TIME IN JAIL TOWARD A SENTENCE. SINCE THE STATE, TO INDUCE APPELLANT’S CONFESSION, VIOLATED LAWS PROHIBITING FRAUD, APPELLANT’S STATEMENT SHOULD HAVE BEEN SUPPRESSED.

FIR ST ISSUE, RESTATED

THE EVIDENCE WAS LEGALLY INSUFFICIENT SECOND ISSUE, RESTATED

THE EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE THE ALLEGATIONS IN THE INDICTMENT AS AMENDED THIRD ISSUE, RESTATED SINCE THE EVIDENCE IS LEGALLY INSUFFICIENT, THERE EXISTS A DOUBLE JEOPARDY VIOLATION UNDER BLOCKBERGER In the interests of judicial economy, these issues are grouped together, since they have a common nexus of fact and law.11 FACTS At a hearing on May 26 , 2015, on motion by the State (CR 70

- 71), the

trial cour t amended the indictment from its original version (CR 8

- 9) to its altered version (CR 68

- 69). There was an attempt to amend all four paragraphs of the indictment, each of which contain strike

- throughs and, in two of the three, interlineations. The record reflects the trial court’s making the amendments in a sort of dialogue with State’s counsel (4 RR 9

- 10). However, the amendments were imperfect and not carried through in two instances, as follows: In the first paragraph the original indictment read: “...o n or about the

22 nd day of DECEMBER, 2011, ...” However, beneath that is the hand

written notation “21 st day January 2012”, with the trial court’s initials “BM.” What is lacking is a strike through of the original date: 22 nd day of December, 2011.”

In the third paragraph (Count II) the original indictment read: “...28 th day of DECEMBER, 2011...” Above that is hand

- written: “February 2012.” The word “DECEMBER” is stricken through, but not the year “2011.” Consequently, the indictment is left with two allegatio ns as to Count I:

both 22 nd day of December 2011 and 21 st day of January 2012. There are12 also two allegation in Count II: 28 th February 2012 and 28 th day February

2011. The allegation in Count III is identical to the “amended” allegation in

Count I. In ot her words, two counts allege the identical offense. There is nothing different between them. In his plea Appellant entered a judicial confession that tracked the supposedly “amended” indictment (CR 147). See also the colloquy between

the trial court and Appellant ( 5 RR 6

- 7) and the finding of guilt by the trial court (8 RR 4

- 5). However, Appellant contends that such a plea and judicial confession are legally insufficient to prove the allegations in the indictment.

THE LAW

The law of indictments in suc h matters is found in Articles 28.10 and 28.11, TEX. CODE CRIM. PROC. Important in such discussions are these

Federal and State Constitutional considerations:

U.S. CONSTITUTION Fifth Amendment: “No person shall be held to answer for a capital or

infamous crime unless upon presentment or indictment of a grand jury... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...”13 Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right...to be inform ed of the nature and cause of the accusation...” Additionally, there are rights of due process of law and equal protection of the law secured under the Fourteenth Amendment.

TEXAS CONSTITUTION Art. 1, § 10. “ RIGHTS OF ACCUSED IN CRIMINAL

PROSECUTIONS. In all criminal prosecutions the ac cused shall have

... the right to demand the nature and cause of the accusation against him, and to have a copy thereof

... and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury ...“ Art. 1, § 14. “ DOUBLE JEOPARDY. No person, for the same offense, shall be twice put in jeopardy of life or liberty...” Additionally, there are rights of “due course of the law” under Art. 1, § 19, TEX. CONST.

See also , Art. 1.04, (due course of the law), Art. 1.05 (rights of the accused), and Art. 1.10, (double jeopardy). TEX. CODE CRIM. PROC. Art. 28.10(a), TEX. CODE CRIM. PROC., states that the State may, upon timely notice to the defendant, amend the form or substance of an indictment. However, it has been held that amendments to a judicial14 confession do not serve to amend the indictment. Puente v. State , 320 S.W.3d 352, 358 (Tex. Crim, App. 2010). There the Court referred to methods of amending the indictment, and found that interlineation of the

ind ictment was one method, but also seemed to approve the process of filing an amended copy of the indictment as another means of showing the changes. However, amending the judicial confession was NOT approved.

The case was reversed.

ANALYSIS

In the case at bar the judicial confession incorporates the changes that the State proffered. However, the indictment itself, as amended, does NOT have those changes. It still carries within it the dual dates of allegations. It is axiomatic that the proof must comport with the allegations in an

indictment. The State's burden is to prove each and every element alleged beyond a reasonable doubt. See , Due Course of the Law provision, TEX. CONST., art. 1, § 19, and TEX. CODE CRIM. PROC., Art. 1.04; W ilson v. State , 536 S.W.2 d 375, at 377 (Tex.Crim.App. 1976) ( state law). Federal argument rests in due process rights as guaranteed under U.S.CONST.

amend. XIV; see Jackson v. Virginia , 443 U.S. 307, 319 (1979); In re Winship , 397 U.S. 358 (1970). The Texas Constitution provisio n has been15 held analogous to Fourteenth Amendment Due Process. See, Webb v. State, 278 S.W.2d 158, 160 (Tex. Crim.App. 1955). Under legal sufficienc y , all the

evidence is reviewed in the light mos t favorable to the jury’s verdict to

deter m in e whether or n ot any rational j ury could have found the esse n tia l

elements of the crime beyond a reasonable doubt. Brooks v. State , 323

S.W.3d 893, 912 (Tex. Crim. App. 2010). Here, the State’s evidence fails because there is a difference in dates

of the offense. In ea ch of two of the three counts the State alleged two

different dates. How can there be sufficient evidence on the date where NO proof is offered? That evidence simply does not exist. Each of those counts allege two different offenses. The third count allege s one of the two dates in the first count. So those counts are indistinguishable. Count One alleges an offense on December 22, 2011, and also on January 21, 2012. There is NO evidence to support the first part of that Count I; therefore, the evidence is l egally insufficient to convict. Count Two alleges an offense on February 28, 2011, and on February 28, 2012. There is NO evidence to support the first part of that Count II; therefore, the evidence is legally insufficient to convict. It might be argued tha t, even so, the evidence is present to convict on Count III, since there was no change in the date there. Moreover , it might be16 contended that, absent an objection, there is nothing to review as to this

issue. See, Studer v. State , 799 S.W.2d 263 (Tex . Cr im. App. 1990); Art. 5, § 12, TEX. CONST.; Art. 1.14(b), TEX. CODE CRIM. PROC. However, Appellant would counter that he is not challenging sufficiency of the indictment, but the proof needed to make the prima facie case, the legally sufficiency of the evid ence. T he case at bar has embedded in it a violation of double jeopardy, since the offense in Count III is identical to Count I. It runs afoul of Sixth Amendment Double jeopardy interpreted by Blockberger v. United States , 284 U.S. 299 (1932). Is not the o ne offense the same as the other, without any variance in an element of the offense? This is condemned under double jeopardy: a person cannot be punished twice for

the same offense. See, Bigon v. State , 252 S.W.3d 360, 364 (Tex. Crim. App. 2008). See also , TEX. CONST. Art. 1, §14 double jeopardy clause. Additionally, how could Appellant ever plead this conviction in bar? He could not. There is no way that Appellant could bar a subsequent prosecution for offenses under the dates alleged. For those reasons, Appellant requests that this Court reverse the conviction, vacate the judgment and remand with orders for an acquittal, or, alternatively, a new trial.17 FOURTH ISSUE, RESTATED

THE JUDGMENT IS VOID BECAUSE APPELLANT WAS NOT GIVEN CREDIT FOR TIME SPENT UND ER HOUSE ARREST FIFTH ISSUE, RESTATED

THE JUDGMENT IS DEFECTIVE AND SHOULD BE REFORMED TO GIVE APPELLANT CREDIT FOR TIME SPENT UNDER HOUSE ARREST SIXTH ISSUE, RESTATED

THE TRIAL COURT RE VERSIBLY ERRED WHEN IT DID NOT GIVE APPELLANT CREDIT ON HIS SENTEN CE FOR TIME HE SPENT UNDER HOUSE ARREST, WHICH WAS THE EQUIVALENT UNDER ART. 42.035, TEX. CODE CRIM. PROC., TO TIME SPENT INCARCERATED In the interests of judicial economy, these issues are grouped together, since they have a common nexus of fact and law

. FACTS Very early in the case, before even the indictment was issued, 2 Appellant was arrested and bond was set at a very high amount. Counsel was appointed on March 22, 2012 (CR 10), who brought an Application for Writ of Habeas Corpus on March 28, 2012 (Supp CR 6). At the hearing on the Writ on April 5, 2015, the trial court reduced the bond to $30,000 on each count and entered the following orders:

2 Indictment	issued	April	26,	2012.18 “Defendant to be placed on House Arrest with monitor, will be allowed to seek employment with notice to Probation Department and with permission [;] Defendant is to have no contact with victim.” 3 At the hearing on Appellant’s Motion for New Trial witness Darren Williams (Harrison County community supervision officer) testified about the requirements of Appe llant while on that house arrest: he was restricted to

his home (MNT RR 15) and could only leave upon knowledge and permission from Williams (MNT RR 17) ; t h at Appellant wore an ankle

monitor to indicate his whereabouts (MNT RR 14

- 15) , which was checked

dai ly (MNT RR 15) ; that Appellant was required to call Williams at certain times and to report monthly in person (MNT RR 16 , 19 ); that Williams derived his authority to have control over Appellant from that order of the trial court (MNT RR 17 , 20 ); that Appel lant’s remaining at home or leaving

there was under Williams’ control (MNT RR 19) ; that Appellant was detained at his house unless he go t Williams’ permission to leave and that Williams controlled Appellant’s comings and goings (MNT 19

- 20) ; that the

restri ctions ceased when, on January 13, 2015, the trial court modified the terms of the bond and no longer required house arrest and an ankle monitor (MNT RR 20; MNT Exhibit #2 )

. Appellant also signed a contract (the

3 Se e ,	Appellant’s	MNT	Exhibit	#1; also,	see Order	attached	to	“Defendant’s	Motion	to Modify	Conditions	of	Bond”	(CR	49

- 50).19 “Harrison County CSCB Electronic Monitoring Program Agreement”) shown in MNT Exhibit #3, according to testimony from Mr. Williams (MNT RR 17

- 18). Appellant confirmed the testimony of Mr. Williams, relating how he wore the ankle monitor every day while under house arrest (MNT RR 21).

His movements were restricted; the consequences of failing to wear the ankle monitor and failing to obey certain restrictions would have been arrest and incarceration (MNT RR 22). The computation of the days during which Appellant was on house

arrest and wore an ankle moni tor amounts to two years and 299 days ( see difference in days as shown on the bail bond [indicating a date of arrest as March 20, 2012, (see, CR 13, 15, 17) ] and MNT Exhibit #2 date of January 13, 2015, as date of release from house arrest, or 66 days shy of one more

year )

. Appellant’s sentence was three years confinement to TDCJ (CR 144).

LAW AND ANALYSIS Art. 42.035, TEX. CODE CRIM. PROC., establishes an equivalence between time on house arrest with an electronic monitor and time spent in jail. Unde r that statute, successful participation in such a program discharges a jail sentence the same as if the defendant had been incarcerated.20 Aside from the obvious rationale that “the Legislature said it, so it must be the law,” one may also advance the rati onale that such a program of house arrest equates to confinement because of the liberty interest at stake. That liberty interest under Fourteenth Amendment Due Process of Law is what underlies some habeas proceedings where the issue of mandatory

release is raised. See, e.g., Ex parte Patterson , 740 S.W.2d 766, 769 (Tex. Crim. App. 1987), overruled on other grounds, Ex parte Be ck , 769 S.W.2d 525 (Tex. Crim. App. 1989). It also underlies, in a civil context, those cases

where relief is considered for persons in civil contempt action s , where the liberty interest of the person held in contempt serves as grounds for review of the justness of the contempt order. See, e.g. Ex parte Brister , 801 S.W.2d 833, 835 (Tex. 1990) (person adjudged in contempt of court and o rdered to

be placed on house arrest and have an electric monitor, just as in the case at bar; Texas Supreme Court found a liberty interest at stake). It is also important to indicate that, in Chapter 11. TEX. CODE CRIM. PROC., there are several statutes th at are relevant to this discussion. Art. 11.21, TEX. CODE CRIM. PROC., offers definitions of such terms as “confined,” “imprisoned,” “in custody,” confinement,” and “imprisonment” as follows: such terms “refer not only to the actual corporeal and forcible detention of a person, but likewise to any coercive measures by threats,21 menaces or fear of injury, whereby one person exercises a control over the person of another, and detains him within certain limits.” Then Art. 11.22, TEX. CODE CRIM. PROC., defines “ restraint,” saying: “By ‘restraint’ is meant the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.”

The restriction s placed upon Appellant and the power that Mr. Williams exercised over him all indicate that Appellant was restrained and

under the control of Williams as defined in those statutes. His liberty had been impaired; he was to some measurable degree confined a nd in custody as those statutes contemplate. The statutes do not say that th ose definitions are restricted solely to analysis of habeas proceedings. At the hearing on the Motion for New Trial the State relied upon Tagorda v. State , 977 S.W.2d 632 (Tex. Ap p.

– Fort Worth 1998, no pet.).

The case is easily distinguished. Art. 42.03 Sec. 2(a), TEX. CODE CRIM. PROC., is not controlling because Art. 42.035, TEX. CODE CRIM. PROC., provides the express equivalence of house arrest on electronic monitoring to jail time. No ifs, ands, or buts. The law is clear; it is express; it is22 unambiguous. The defendant in Tagorda made no such argument. The case is inapposite and not controlling. Some insight into these issues is given in B. Feuchter, “CRIMINAL

LAW

– Home Alone : Why House Arrest Doesn’t Qualify for Presentence

Confinement Credit in New Mexico

– State v. Fellhauer , ” 28 N EW M EXICO

L AW R EV . 519 (Summer 1998). The author surveyed many jurisdiction and boiled them down into three groups on the question of giving cred it/not giving credit for presentence time served under house arrest: Group One

consisted of Michigan, Arizona, Idaho, and Florida and the federal penal system, each of which has “an explicit correctional facility detention requirement set forth in its pres entence confinement credit statute” , 28 N EW

M EXICO L AW R EV . at 522. He cites to those statutes and some case law precedents

. 28 N EW M EXICO L AW R EV

. at 522

- 23. In Group Two are six states: New Jersey, Maryland, Wyoming, Vermont, Nevada, and Alaska. Accord ing to the author, “[t]these states focus more on the restrictions of a prisoner’s liberty than the place of confinement for granting presentence confinement credit. 28 N EW M EXICO

L AW R EV

. at 523. W ith one exception 4 , there seems to be no statutory basis

4 New	Jersey	enacted	its	“New	Jersey’s	Comprehensive	Drug	Reform	Act	of	1986,” codifying	the	concept	that	a	person	in	a	residential	dr ug	treatment	program	was23 f

or the orientations of those states; instead, the author cited to case law precedents that recognize that under certain conditions. See, e.g. Dedo v.

State , 680 A.2d 464 (Md. Ct. App. 1996), where credit was granted to a defendant who was placed under hous e arrest under the custody of a warden of a county detention center, and subject to an escape charge for violation of

the terms of his house arrest; the court found that the defendant was in the constructive custody of the state and therefore entitled to p resentence confinement credit. Appellate courts in the other jurisdictions followed the same or similar reasoning in the following cases: State v. Reyes , 504 A.2d 43 (N.J. Super. Ct. App. Div.), cert. denied , 511 A.2d 671 (1986); Yellowbear

v. State , 874 P.2d 241 (Wyo. 1994); In re McPhee , 442 A.2d 1285 (Vt. 1982); Grant v. State , 659 P.2d 878 (Nev. 1983); Nygren v. State , 658 P.2d 141 (Alaska Ct. App. 1983). Group Three were three states, California, Illinois, and Wisconsin, that “do not explicitly requi re detention in a prison facility to grant presentence confinement credit, but do recognize house arrest as official

confinement” 28 N EW M EXICO L AW R EV . at 524 and cases cited there.

entitled	to	presentence	confinement	credit. 28 N EW M EXICO L AW R EV . at 523, n. 46. State	v.	Fellhauer ,	943	P.2d	123	(Ct.	App.), cert.	denied ,	942	P.2d	189	(1997).24 Texas expressly has a statute that recognizes house arrest as equivalen t to jail confinement in Art. 42.035, TEX. CODE CRIM. PROC. Moreover, under the rationale found in the Dedo decision and those other cases in Group Two, supra, Appellant was under the control of an agent of the state who constantly monitored and approved (or disapproved) where he went and what he did. Appellant, like those defendants, was faced with incarceration if he failed to measure up to the conditions of his house

arrest. He was “ confined ” and “restrained” as those terms are defined. Another way to analyze the problem is by applying an axiom of Euclidean geometry, called the First Element: “Things which are equal to the same thing are equal to each other.” 5 Stated symbolically, that can be expressed: I f A = B and if A = C, then B = C.

Art. 42.03 5, TEX. CODE CRIM. PROC. equates house arrest (A)

and jail time (B). Successful completion of the one equates to successful completion of the other. Therefore, A = B. One can absolve oneself of time on a sentence by

house arrest. House arrest and incarce rated time served in the county jail are equivalent.

5 See,	“Euclid’s	Elements,	Book	I,	Common	Notions”	found	at aleph0.c lark.edu/~djoyce/elements/bookl/cn.html25 In the case at bar:

“ C ” is Mr. Jones’ house arres t for 1,097 days; that is, 68 days short of three calendar years. The quality of that period of time for Appellant was no different that what is contemp lated in Art . 42.035, TEX. CODE CRIM.

PROC. H e wore an ankle monitor; h is goings and coming were regulated by Mr. Williams and were subject to Williams’ approval or disapproval. His liberty was restricted. The statute chisels into law the equivalence of th at sort of restriction of one’s liberty with time in the county jail. Therefore, A = C. They are equivalent. There is no difference between the house arrest contemplated in the statute and the terms and conditions that

were placed upon Appellant. So, if A = B, and if A = C, then B = C. The time served under house arrest is equivalent to time served on Appellant’s sentence in the case at bar. Another way to argue this concept is to consider that, in almost every case one can conceive, when a defendant is in the county jail awaiting the outcome of his case (that is, bond has been set but he cannot make bond and be at liberty 6 while awaiting trial), h e or she is given credit for time in county jail on the senten ce. See , Art. 42.03, Sec. 2(a)(a), TEX. CODE

CRIM . PROC. So, for example, a pers on sits in the county jail for 1 00 days

6 There’s	that	concept	of	LIBERTY	again.26 awaiting a trial for felony theft and then get s sentenced to 10 years TDCJ, the court’s judgment will recite a credit of 100 days on that sentence. It happens all the time. One is no le ss incarcerated because one is in a county jail versus a unit of the prison system. Correct? Time incarcerated equal s time incarcerated, right? If Mr. Ich Bin Dieb spend s a day in Bowie County jail and then get s sent off the Hu ntsville, that is one day les s he must serve on a felony sentence in TDC J, regardless of what unit he is sent to

-- however “max” or minimum it might be, however harsh or lenient its

conditions. Time is time. So how can one argue, then, that the legislature meant something

different h ere? The statute equates time of incarceration to time on an ankle monitored house arrest. There it is. The statute does not say, “King’s X. We

do not intend to allow this to be used in a situation where someone is headed

to a unit of TDCJ.” That i s not st ated in the law. It says that house arrest and jail time are equivalent. If cre dit for jail time served is allowed as credit for time served on a felony sentence, then one is compelled to admit that there is no difference in allowing credit for time on an electric monitored house arrest. And why? Because the legislature has recognized that each constitutes a deprivation of one’s liberty interest, a denial of freedom.27 On review, the Court should find the judgment void and remand with

an order to correct th e judgment to reflect time served to include the period on house arrest, or, alternatively, the Court should correct and reform the judgment to recognize that credit of time against the sentence. SEVENTH ISSUE, RESTATED

THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO SUPPRESS APPELLANT’S STATEMENT

FACTS On August 27, 2014, the trial court convened to hear Appellant’s “Motion for Hearing on Voluntariness of Any Statement, Admission or Confession, Whether Written or Oral” (RR III, CR 31). In the second

pa ragraph of the Motion, Appellant invoked the protections of the Fifth, Sixth, and Fourteenth Amendments, U.S. CONST., and Art. 1, §10, TEX. CONST., and Articles 38.21, 38.22, and 38.23, TEX. CODE CRIM. PROC. The State called as its witness Cindy Black, an investigator with the Harrison County Sheriff’s Office, who testified that she mostly investigated cases of sexual assault (III RR 6). She investigated Appellant’s case, and she identified him in open court (III RR 7). State’s exhibit #1 was admitted as the document signed by appellant at the start of the interview, setting out his Miranda rights/warnings (III RR 8

- 9). Appellant was not at that time under arrest (III RR 9

- 10).28 State’s exhibit #2 was also introduced: a copy of the video interview of Appe llant (III RR 10

- 11). It was then published (III RR 11) and played for the trial court; the entire interview was 47 minutes long (III RR 12). Counsel for appellant informed the trial court that the portion to which he objected began at about the 10, 11, 12 minutes into the interview, and that anything beyond that was inadmissible (III RR 12

- 13). Counsel for the State contended that the material had to placed into context, that “the Court can’t just look at that one little snippet. It needs to at least get an idea of all of the circumstances of the interview. I was going to play the first 20 minutes...” (III RR 13). The witness was questioned further as the video was played, stating that Captain Latham came into the room at one point, and that Investigator

Jef f McAndrews and she were the only ones in the room (III RR 13

- 14). Detective Black then testified that he (Captain Latham) closed the door and “said that Heather was being honest” (III RR 14). 7 Thereafter, Appellant was interviewed for about one

- half hour, and confessed to having sex with the underage vi ctim with his wife present , that he confessed multiple instances of sex with the minor, that he confessed to having oral sex with her, and that following that interview he was arrested (III RR 14

- 15).

7 The	reference	is	to	Heather	Jones,	appellant’s	wife,	who	was	being	separately interviewed	by	other	members	of	law	enforcement.2 9 On cro ss - examination the witness stated that Deputy McAndrews stepped out into the hallway and talked to Captain Latham there (III RR 15).

Then there was this: Q: And you heard Deputy McAndrews come back in and as soon as

– right after he talked to Captain Latha m, tell my client that his wife is giving a statement and she’s being honest about everything?

A: Uh

- huh, yes sir. Q: And everything

– I believe he said, “Honest about everything that went on,” I believe. Anyway, I don’t know the

– we can watch the video, but it’s not necessary. But we know he says she’s being honest about everything, correct?

A: I know he said she was be ing honest. I don’t know if he said “about everything,” but he said she’s

– she’s being honest. Q: Okay, And that would be in the contex t of giving a statement, correct?

A: Yes. Q: And he was encouraging him to give a statement and be, quote,

honest?

A: Yes. Q: And being as detailed and honest as she was in her statement?

A: Yes.30 (III RR 16

- 17) The witness then stated that, at the time sh e was interviewing Appellant, Lieutenant Duncan was interviewing Heather Jones in another room. However, she herself did not know that at the time (III RR 17). Detective Black then testified that she was under the impression that there

was an interview st ill going on with Heather at that time, and that she was being open and honest and telling everything (III RR 19). That created in her mind the impression that the other officers were getting “a good interview” from Heather Jones with a lot of details; so she pressed Appellant to corroborate those details (III RR 20). Detective Black testified that it would be reasonable for Appellant to assume that his wife was giving a detailed, honest, interview and statement to law enforcement (III RR 21

- 22).

Then the re was this exchange: Q: ...I was characterizing Deputy McAndrews’ statement as to what was going on in the interview with Heather Jones as not being

– as being a false statement as to what was really happening down there which, of course, nothing was happen ing because she made no statement, correct?

A: Correct.31 Q: So she’s

– she’s not being

– she’s not providing a lot of details. She’s not being completely honest from the police officer’s perspective. As you say, she lawyered up?

A: Yes. (III RR 23)

The wit ness confirmed that, immediately after Deputy McAndrews made that statement upon coming back into the interview room, Appellant began (in the words of Det. Black) “to tell the truth” , although the witness agreed that it would be up to the jury to make the determination of whether what he said was true or not (III RR 25). After the State rested, trial counsel for Appellant called Captain Marty Latham to testify (III RR 28). He stated that he had participated in interviewing Heather Jones and also Appellant in March 2012 (III RR 29). The video of Heather Jones was then offered by Appellant (III RR 29

- 30). It was marked at defendant’s Exhibit No. “H” for the hearing, played, and admitted into evidence (III RR 31). Capt. Latham confirmed that after a

time h e left the interview room where Heather Jones was being questioned and went to the room where Appellant was being interviewed, knocked on the door, and asked Investigator McAndrews to step out (III RR 34). He did not “recall exactly” what he told him (III RR 35). He did tell McAndrews32 that when he went back in to talk to Appellant to “just tell him to be honest, and I wanted him to think she’s being honest with us, too.” ( id .) For the limited purposes of the hearing, Appellant took the witness stand (III R R 37). Appellant related how, at about 10 to 10:30 minutes into the interview, there was knock at the door, that the other detective stepped out, spoke a moment, came back in and explained that “my wife was giving a statement of which she was being honest, at least that’s how I took it, that she was giving some sort of statement and giving details towards the case,” though those were not his exact words. 8 The statement by the officer created in Appellant’s mind the impression that his wife was giving a deta iled statement interview down the hall (III RR 39). Appellant further stated that, had it not been for the statement made by Detective McAndrews, he would not have made other statements (III RR 41). He regarded that statement as false (III RR 42), and base d upon it he changed his entire statement, relying upon McAndrews statement as being true (III RR 43). As a result of that, he testified that he had been harmed: arrested, lost work (id.) , lost his home and caused issues with his schooling because of fina ncial problems arising from his having to pay for the ankle monitor (III RR 44). Appellant on cross

-

8 See	State’s	Exhibit	#1	at	about	10:30	where the	door	opens	and	man	exits,	then about	10:50	it	opens	again	and	man	comes	back	in,	and	man’s	voice	can	be	heard	at about	10:55	saying	that	the	wife	is	being	completely	honest	about	it,	that	Appellant needs	to	begin	to	be	completely	honest.33 examination testified that he began to tell make his statement in order to protect his wife and to keep her from going to jail (III RR 52).

The trial court denied the Motion (III RR 53).

LAW When reviewing a trial court's ru ling on a motion to suppress, the reviewing court view s the evidence in the light most favorable to the trial court's ruling. State v. Robinson , 334 S.W.3d 776 (Tex. Crim. App. 2011);

St ate v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). If the trial court makes findings of fact, the court determine s whether the evidence supports those findings. Id. It then review s the trial court's legal rulings de novo unless the findings are disp ositive. Id. A defendant who moves for suppression under Article 38.23 , TEX. CODE CRIM. PROC., due to the violation of a statute has the burden of producing evidence of a statutory violation. State v. Robinson , 334 S.W.3d

at 779 ; Pham v. State , 1 75 S.W.3d 767, 772 (Tex. Crim. App. 2005). Only when this burden is met does the State bear a burden to prove compliance.

Id. Further, a defendant must show a causal connection between a statutory violation and the obtaining of evidence before the evidence is

rendered inadmissible. Pham , 175 S.W.3d at 772

- 773. If the defendant34 produces evidence that there is a causal connection, the State may either try to disprove this causal evidence, i.e. disproving that there is a causal

connection in existence at all, or, the State may make an attenuation

- of

- taint argument. Evidence is not obtained in violation of a provision of law if there is no causal connection between the illegal conduct and the acquisition of

the evidence. Gonzales v. State, 67 S.W.3d 910 , 912 (Tex. Crim. App. 2002). Thus, the evidence would not be excluded pursuant to article 38.23 , TEX. CODE CRIM. PROC. Under Art. 2.12, TEX. CODE CRIM. PROC., a deputy sheriff is a peace officer. Under Art. 2.13, TEX. CODE CRIM. PROC., “[i]t is the duty of every peace officer to preserve the peace within the officer’s jurisdiction. To effect this purpose, the officer shall use all lawful means.” Moreover, under Art. 2.13(b)(a), TEX. CODE CRIM. PROC., the officer shall “...prevent or suppress crime.” Each pe ace officer, whether elected or appointed, takes and swears to the oath of office found in Art. 16, §1(a), TEX. CONST., which states, in relevant part, that the officer “will...preserve, protect, and defend the Constitution and laws of the United

States an d of this State...” Our courts have held that “[p]eace officers have a duty to prevent crime and arrest offenders.” See, City of Dallas v. Half Price Books, Records, Magazines, Inc ., 883 S.W.2d 374, 377 (Tex. App.

– Dallas35 1994, no writ); cited with approval in Fifth Club, Inc. v. Ramirez , 196 S.W.3d 788, 800 (Tex. 2006)(Brister, J., concurring).

FRAUD AND RELATED CONCEPTS

R ESTATEMENT OF C ONTRACTS (S ECOND ) has several provisions on

fraud: § 159. Misrepresentation Defined A misrepresentation is an asserti on that is not in accord with the facts. § 162. When A Misrepresentation Is Fraudulent Or Material (1) A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies in the truth of the assertion, or (c) knows that he does not have the basis that he states or implies for the assertion. (2) A misrepresentation i s material if it would be likely to induce a reasonable person to manifest his assent, or if the maker knows that it would be likely to induce the recipient to do so. § 164. When A Misrepresentation Makes A Contract Voidable (1) If a party's manifestat ion of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying, the contract is voidable by the recipient. (2) If a party's manifestation of assent is induced by either a fraudulent or a material misrepresentation by one who is not a party to the transaction upon which the recipient is justified in relying, the contract is voidable by the recipient, unless the other party to the transaction in good faith and without reason to know of the misrepresentation either gives value or relies materially on the transaction.36 § 167. When A Misrepresentation Is An Inducing Cause A misrepresentation induces a party's manifestation of assent if it substantially contributes to his decisi on to manifest his assent.

Texas Penal Code Chapter 32, TEX. PENAL CODE, codifies many sorts of fraudulent practices as crimes. One of those is found in TEX. PENAL CODE §32.42, Deceptive Business Practices, stating, in relevant part, that a “person

commi ts an offense if in the course of business he intentionally, knowingly, recklessly, or with criminal negligence commits one or more of the following deceptive business practices:” There follows a “laundry list” of deceptive business practices, included th at found in §32.42 (b) (12), which is: “making a materially false or misleading statement...(B) otherwise in connection with the purchase or sale of property or service.”

The statute also defines in §32.42 (a)(2), that “ ‘business’ ” includes

trade or comm erce and advertising, selling, and buying service or property.”

Texas Business & Commerce Code Chapter 17 of the Texas Business & Commerce Code sets out several types of deceptive trade practices. TEX. BUS. & COMM. CODE, §17.01 et.

seq. , all of which h ave as a component a knowing misrepresentation of something for what it is not. Similarly, Chapter 27 of the Texas Business & Commerce Code sets out several other types of fraud. TEX. BUS. &37 COMM. CODE, §27.01, concerns fraud in real estate and stock tran sactions. TEX. BUS. & COMM. CODE, §27.02, concerns fraud in certain insurance claims. Again, a knowing misrepresentation is part of the condemned conduct, for which liability may attach.

ANALYSIS At the hearing on the Motion to Suppress Appellant contend ed that law enforcement had engaged in fraud to obtain Appellant’s statement. Trial counsel argued to the court that there is a law “pertaining to fraud and fraudulent representations...that McAndrews’ statement is a fraudulent statement that [Appellant] rel ied upon; and, as a result of it, he changed his position and acted in a way that he wouldn’t have absent the statement, and has been harmed by it; therefore, it is fraud.” (III RR 50

- 51). That argument relies upon the common law definitions of fraud foun d

i n the R ESTATEMENT OF C ONTRACTS (S ECOND ) cited, supra . There were misrepresentations; those misrepresentations were material; there was detrimental reliance; the State gained a distinct advantage over Appellant, namely, evidence (incriminating admission by a party opponent) that it relied upon to prove its case. Moreover, the agents of the State are the designated “peace officers” who, by statute, are the keepers of the peace in the state of Texas, charged38 by law with preventing crime. The statements of McAndrews were false and made with the intent to get Appellant to accept its truth and make a confession; it had that desired effect. The officer was a public servant who was in the business of offering the services of those who “protect and serve,”

who h ad taken an oath under the Texas Constitution to “faithfully execute the duties of a deputy sheriff and to preserve, protect, and defend the

Constitution and laws of the United States and of this State.” See , Art. 16, §1(a), TEX. CONST. If McAndrews, and o thers like him, who provide those services, are not engaged in the service of providing law enforcement paid for by the taxpayers of the State, then who is? It might be argued that under several recognized precedents the courts permit a degree of decepti on when it comes to the investigation of crime. See, e.g., Frazier v. Cupp , 394 U.S. 731 (1969); Moran v. Burdine , 475 U.S. 412 (1986). However, that is not without its limits, and some deception is clearly not countenanced by the courts. See, Lynumn v. I llinois , 372 U.S. 528 (1963), drawing the clear distinction that, deception predicated upon coercion involving the security of family members and the family relationship, violates Fourteenth Amendment Due Process.

At least one court has held that the dist inction in allowing or disallowing a confession induced by deception is a distinction between an39 “intrinsic” deception as opposed to an “extrinsic” deception; that the former is not at as likely to lead to a false confession as the latter. See, State v.

Ke lekolio , 849 P.2d 58 (Hawaii 1993). It is readily apparent in the case at bar that the facts more resemble Lynumn and the use of “extrinsic” deception: the officer represented that Appellant’s spouse was being “completely honest”, thereby triggering Appel lant’s insecurity about his wife’s well

- being and concerns about her being prosecuted and sent to jail, all matters that were extrinsic to the facts at

hand. For those Fourteenth Amendment Due Process considerations the statement should have been suppresse d. Moreover, when one turns to Art. 32.23, TEX. CODE CRIM. PROC., there is the statutory prohibition against the admissibility and use of a

confession that has been obtained in violation of the state and federal

Constitutions and laws. See, Pierce v. State , 32 S.W.3d 247, 2 53 (Tex. Crim. App. 2000; Wilson v. State , 311 S.W.3d 452 (Tex. Crim. App. 2010). Appellant contends that in multiple ways the State’s interrogating officers used misrepresentations that violated the law and the state and

federal constitu tions. First: there were misrepresentations that were material and upon which Appellant relied to his detriment. That is a violation of the common law of fraud, embodied in the sections of the R ESTATEMENT OF40 C ONTRACTS (S ECOND ) supra

. 9 Next, it violated TEX AS PENAL CODE, §32.42(b)(12)(B), in that the officer made the misrepresentation in connection with the services he was offering. Moreover, the misrepresentations were in violation of U.S. Constitutional Fourteenth Amendment Due Process, as interpreted in t he Lynumn decision. Consequently, in one of three ways, or two of three, or all three, there was a violation of the law in the procuring of the confession. Those misrepresentations vitiate the confession. It was reversible error not to suppress the stateme nt and reversible error to admit it into evidence.

HARM ANALYSIS Harm analysis proceeds under Rule 44.2(a), TEX. R. APP. PROC.,

sin ce it involves Fifth and Fourteenth Amendment constitutional errors. It cannot be said beyond a reasonable doubt that the e rror did not contribute to the conviction or punishment in the case, since, after the trial court overruled the motion to suppress, instead of proceeding to trial on guilt

- innocence, Appellant pleaded guilty. Also, the trial court relied upon the confessio n in

9 See , In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001); Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998). See also , Taylor Elec. Servs., Inc. v. Armstrong Elec. Supply Co ., 167 S.W.3d 522, 526 (Tex. App.

- Fort Worth 2005, no pet.) (citing DeSantis v. Wackenhut Corp ., 793 S.W.2d 670, 688 (Tex. 1990)); see, Grant Thornton LLP v. Prospect High Income Fund , 314 S.W.3d 913, 921 (Tex. 2010).41 finding Appellant guilty and in assessing punishment. See, VIII RR 5, lines

17

- 23. See, Holmes v. State , 323 S.W.3d 163, 173

- 74 (Tex. Crim. App. 2010). Therefore, the error was harmful. The conviction and sentence should

be reversed and remanded for a new trial.

PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, CASEY AUSTIN JONES, APPELLANT, prays that this Honorable Court of Appeals, upon review of the record and consideration of the issues set forth, and the argument and authorities presented, will find error and reverse and remand this cause for a new trial on guilt and innocence and/or on punishment, or, alternatively, reform the judgment to allow credit on his sentence for time spent under house arrest, and for such other and further relief to wh ich Appellant may be entitled at law and equity. Respectfully submitted, __/S/ Hough

- Lewis Dunn Hough

- Lewis (“Lew”) Dunn Attorney at Law P.O. Box 2226 Longview, TX 75606 E

- mail: dunn@texramp.net Vox : 903

- 757

- 6711 F ax: 903

- 757

- 6712 Counsel for Appellant Casey Austin Jones42 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing “Brief for Appellant” has been sent by electronic transmission to the following on this 2 1 st day of Dec emb er, 2015:

Hon. Laura M. Carpenter , Assistant Criminal District Attorney , Harrison County, Texas, at her e - mail address: laurac@co.harrsion.tx.us.

__/S/ Hough

- Lewis Dunn Hough

- Lewis (“Lew”) Dunn

CERTIFICAT E O F COMPLIANCE

I certify that the foregoing docu m ent co m plies with Rule 9, TEX.

R. APP. PROC., regarding length of do c u m ents, in that exclusive of caption, identity of parties a n d c ouns e l , statemen t regardin g ora l argume n t, table of

contents, index of authorities, statement of the case, issues pres ented,

statement of jurisdiction, statement of procedural history, signature, proof of ser v ice , certification , ce r tificat e o f compliance, and appendix, it

consists of 9,151 words. /s/ Hough

- Lewis (“Lew”) Dunn Hough

- Lewis (“Lew”) Dunn