NO. 06-15-00061-CR

__________________________________________________________________ IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT, TEXARKANA, TEXAS

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BOBBY EUGENE CLARK, JR.

Appellant, v. THE STATE OF TEXAS Appellee.

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On Appeal from Cause No. 42863-B In the 124th Judicial District Court of Gregg County, Texas Honorable Alfonso Charles, Presiding Judge

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APPELLANT’S ANDERS BRIEF

__________________________________________________________________ Jonathan Wharton SNOW E. BUSH, JR., P.C. Texas State Bar No. 24075764 420 N. Center Street Longview, TX 75601 Tel. (903) 753-7006 Fax (903) 753-7278 jonathanwharton1@sbcglobal.net ATTORNEY FOR APPELLANT BOBBY EUGENE CLARK, JR.

August 20, 2015 ACCEPTED 06-15-00061-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 8/20/2015 4:34:27 PM DEBBIE AUTREY

CLERKIDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1(a) of the Texas Rules of Appe llate Procedure, Appellant lists the following parties affected by this appeal , and their respective appellate and trial counsel: Appellant: Bobby Eugene Clark, Jr. Jonathan Wharton Snow E. Bush, Jr., P.C. 420 N. Center Street Longview, TX 75601 Tel. 903.753.7006 Fax 903.753.7278 jonathanwharton1@sbcglobal.net Court-Appointed Appellate Counsel for Bobby Eugene Clark, Jr. Zachary W. Davis P.O. Box 2042 Tyler, TX 75710 Tel. 903.539.5576 Appointed Trial Counsel for Bobby Eugene Clark, Jr. Appellee: The State of Texas Zan Brown Gregg County District Attorney’s Office 101 East Methvin Street, Suite 333 Longview, TX 75601-7252 Tel. 903.236.8440 Fax 903.236.8490 Appellate Counsel for the State of Texas Madison Hood Gregg County District Attorney’s Office

1101 East Methvin Street, Suite 333

Longview, TX 75601-7252 Tel. 903.236.8440 Fax 903.236.8490 Trial Counsel for the State of Texas

2TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 TABLE OF CONTENTS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 INDEX OF AUTHORITIES

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 STATEMENT OF THE CASE

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 NO REQUEST FOR ORAL ARGUMENT

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ISSUES PRESENTED

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 STATEMENT OF FACTS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 SUMMARY OF THE ARGUMENT

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 PRAYER

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF SERVICE

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CERTIFICATE OF COMPLIANCE

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

3INDEX OF AUTHORITIES STATUTES Tex. Code of Crim. Proc., Art. 4.05 . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Tex. Pen. Code § 21.11 . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Tex. Penal Code § 12.33 . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Tex. Code of Crim. Proc., Art. 38.072 . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11, 12, 1 3 CASES Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . 17 , 18 Ethington v. State , 819 S.W.2d 854 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . 13 Hernandez v. State , 04-09-00584-CR (Tex. App.—San Antonio 2010, no pe t.) (mem. op.) . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 High v. State , 573 S.W.2d 807 (Tex. Crim. App. 1978). . . . . . . . . . . . . . . . . . . . . . 10 Jackson v. Virginia , 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17 Kelly v. State , 436 S.W.3d 313 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . 11 Long v. State , 800 S.W.2d 545 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . 12 Schlup v. Delo , 513 U.S. 298 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Sledge v. State , 953 S.W.2d 253 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . 15 Teal v. State , 230 S.W.3d 172 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . 10 U.S. v. Vargas-Ocampo , 747 F.3d 299 (5th Cir. 2014) . . . . . . . . . . . . . . . . . . . 15, 17

4STATEMENT OF THE CASE

Bobby Eugene Clark, Jr. pled not guilty to indecenc y with a child and tried the case to the court. 3 RR 7. The court convicted him and sentenced him to seven years in the penitentiary. 3 RR 121; 4 RR 13.

NO REQUEST FOR ORAL ARGUMENT Because there are no meaningful issues in the appea l, the court’s decisional process would not benefit from oral argument. ISSUES PRESENTED 1. Are there any arguably reversible errors in the r ecord? STATEMENT OF FACTS Bobby Eugene Clark, Jr. was indicted on an accusati on that on September 29, 2012, he engaged in sexual contact with Jane Doe (w ho will be referred to as “the child”) by touching her genitals with the intent to arouse or gratify his sexual desire. CR 4. After admonishments, he waived his right to ajury trial. CR 20; 2 RR 4-7. The defendant pled “not guilty” and proceeded to a benc h trial. 3 RR 8. Mr. Clark is the child’s great-uncle, the brother o f her grandmother. 3 RR 13. The child’s accusation was, “Like, he put me on the couch on my side one time and touched me in the front and the back. And he's put me on his shoulders one time, touched me in the back and the front. And one time he had this little red Hoveround

5[a motorized wheelchair] and put me in the middle, and he made me sit there, and I

didn't really want to.” 3 RR 15-16. She was nine ye ars old at the time. 3 RR 16. The child did not like Mr. Clark to begin with: he was disrespectful and rude. 3 RR 23. She was uncomfortable around him. 3 RR 23. When she rode around in his lap on the Hoveround, he chased after a chicken, bu t he did not touch her inappropriately. 3 RR 24. The prosecution presented one specific sexual alleg ation. According to the prosecution, the event took place at the child’s gr andmother’s house. 3 RR 16. Mr. Clark was staying there at some points in September of 2012. 3 RR 61. The child and her sister would also stay there on the weekends. 3 RR 61; 3 RR 16. According to the child, Mr. Clark “put her on his side with him.” 3 RR 16-17. He then allegedly patted her on her private parts. 3 RR 17. The child’s gran dmother and her sister were in the house at the time; the child’s sister was in the sa me room. 3 RR 17. The child’s sister testified that the night of the alleged touching, her grandmother and Mr. Clark were sleeping in the backbedrooms. 3 RR 35-36. At some point in the night the child came to her seemi ng scared and asked to sleep with her. 3 RR 38. The child’s sister saw the child on the couch, but she did not see Mr. Clark on the couch. 3 RR 40-41. She never saw any s exual touching, but Mr. Clark did make her uncomfortable: “He just made us feel u ncomfortable, like I felt like he

6was watching us.” 3 RR 34. “He—he was really touchy with [the child]. He was

always wanting her to climb on him and hug on him a nd stuff, like she was a little kid.” 3 RR 34. The child’s grandmother, Barbara Tidwell, testified that she saw something that made her uncomfortable in the early part of Septemb er: “Little Bobby was laying on the couch and [the child] was standing at the end o f the couch, and he just kind of pulled her up on him, on his side. . . . it just ma de me uncomfortable. And I—I said, ‘Pony, come on, let's go outside.’” 3 RR 61-62. Mr. Clark was laying on his side and the child was laying on her side on top of him. 3 R R 66. This event happened during the day, and Ms. Tidwell was not sure whether it wa s the same incident the child was alleging happened. 3 RR 62. Ms. Tidwell saw nothing else between Mr. Clark and the child that caused her any concern. 3 RR 62-63. Mr. Clark never held the child or picked her up. 3 RR 64. The child’s father testified that he heard the chil d make an outcry. Per the State’s Article 38.072 notice, the outcry was as fo llows: “Jane Doe 07192003 told Brian Splawn that defendant touched Jane Doe inappr opriately and that defendant forced Jane Doe to sit on top of defendant facing d efendant and that defendant forced Jane Doe in an up and down motion while she sat on top of defendant.” CR 13. At trial, he said that she came to him and said, “Uncl e Bobby raped me.” 3 RR 45. “[S]he

7said that he had called her over to—called her over to the couch or something and that he had held her tight; and that she kept trying to turn over, and that he kept turning her back over.” 3 RR 45. [S]pecifically what she said was, once I got her ca lmed down to where she could—she could talk clearly, she said th at her older sister, I guess, was sitting or—or in another area of the l iving room or something, and Bobby was making her feel real uncomfortable. He had —I guess he had already made an attempt or some thing—or had—had grabbed her in an inappropriate way where s he didn't feel comfortable. She went to her older sister, asked if she could sleep with her. And being a big sister she said no, becau se, you know, whatever. And so [the child’s sister] got up and we nt to bed and left her alone in the living room with Bobby. 3 RR 46. The child’s sister did not leave the livin g room, as she slept there in a recliner. 3 RR 40. The indictment stating that the touching occurred o n September 29, 2012, was based on the report the child’s father made to the police on October 17, 2012, the morning after he heard the outcry. 3 RR 55-56; 3 RR47-48. The defense proved that no touching could possibly have happened on Septemb er 29 because the defendant was in a hospital that entire day, as shown by medi cal records and testimony. Defendant’s Exhibit 1 at 1-2 (medical records); 3 R R 66 (testimony from child’s grandmother that the defendant never returned to th e house after September 27); 3 RR 98 (testimony from defendant’s daughter).

8At trial, the child’s father became certain that th e incident occurred on

September 22, 2012. 3 RR 54 (“Q: But you do know sp ecifically now today in court that it was the 22nd that this occurred; is that wh at you're saying? A. Yeah, that's exactly right. Yes, it is.”). It turned out that Mr . Clark was not at the house on that date, either; in fact, he was at his daughter’s hou se. 3 RR 97 (testimony from defendant’s daughter); 3 RR 81 (testimony from defe ndant); 3 RR 68 (testimony from child’s grandmother). The 22 ndwas memorable because Mr. Clark had left an airpla ne at the child’s house on Thursday, it was broken by the kids on Saturday, and he found out about it when he arrived on Sunday. 3 RR 81. Th e defense also ruled out the previous Saturday, the 15 th , as he was at his daughter’s house then too. 3 RR 96-97 (testimony from defendant’s daughter); 3 RR 68 (tes timony from child’s grandmother); 3 RR 80 (testimony from defendant). The court convicted Mr. Clark and sentenced him to seven years in the penitentiary. 3 RR 121; 4 RR 13.

SUMMARY OF THE ARGUMENT This Anders brief is accompanied by a motion to withdraw and amotion for appointment of counsel to apply for a writ of habea s corpus. Because there is legally sufficient evidence, there are no arguable grounds for reversal based on this record.

9ARGUMENT

I. Possible Points of Error A. Introduction This appeal is from a bench trial and the trial cou rt sentenced the defendant within the punishment range for the crime, so there is nothing to argue. The case was tried by a district court, so it had jurisdicti on. Tex. Code of Crim. Proc., Art. 4.05. The indictment alleged a crime. CR 4 (allegin g indecency with a child); Teal v. State , 230 S.W.3d 172, 179 (Tex. Crim. App. 2007) (indic tment that charges (1) a person (2) with a crime is sufficient to confer j urisdiction). The punishment of seven years is within the punishment range. Tex. Pe n. Code § 21.11(d) (defining the crime as alleged a second degree felony); Tex. Penal Code § 12.33 (statutory establishment of punishment for second degree felon y as imprisonment for a term between two and twenty years). As required by High v. State , 573 S.W.2d 807, 811 (Tex. Crim. App. 1978), counsel will “refer to anything in the record that might arguably support the appeal and make ready references to the record and legal authorities.” The undersigned counsel has (1) informed Appellant of the motion to withdraw and attendant Anders brief, (2) provided Appellant with copies of the b rief and the motions to withdraw and be appointed as counsel for applying f or a writ of habeas corpus

10while notifying him of his various pro se rights, and (3) supplied him with a form

motion for pro se access to the appellate record (and the mailing add ress for the court of appeals), to be filed within ten days, so that he may timely effectuate that right, if he so chooses. Kelly v. State , 436 S.W.3d 313, 320 (Tex. Crim. App. 2014).B. Possible Points of Error

1. Failure to Exclude Hearsay The State introduced outcry statements that were al legedly made by the complainant. 3 RR 45. The State gave two notices to the defense under Article 38.072 of the Texas Code of Criminal Procedure thatit intended to use hearsay statements of the child. One was through her father , Brian Splawn, summarized as follows: “Jane Doe 07192003 told Brian Splawn that defendant touched Jane Doe inappropriately and that defendant forced Jane Doe to sit on top of defendant facing defendant and that defendant forced Jane Doe in an up and down motion while she sat on top of defendant.” CR 13. The othe r was through Kelli Faussett, who did not testify at trial and was never mentione d. CR 11. After giving the notice, the State did not follow the rest of the procedure required for introduction of this hearsay statement . Specifically, in order to be admissible, the trial court must find that the stat ement “is reliable based on the

11time, content, and circumstances of the statement.” Tex. Code of Crim. Pro., Art.

38.072(b)(2); Long v. State , 800 S.W.2d 545, 547 (Tex. Crim. App. 1990). As discussed below in Part I.B.3, the outcry statementprovided by Brian Splawn had significant reliability problems. First, the defend ant was admitted to a hospital the date of the alleged touching and therefore could no t have been present at the child’s house when Mr. Splawn claimed it took place . Second, Mr. Splawn’s description of the event did not match the child’s: according to her, when she rode on the Hoveround (a motorized wheelchair) with Mr. Clark, he did not touch her and she just sat on his lap. 3 RR 24. At trial, Brian Splawn testified that the child sai d, “Uncle Bobby raped me.” 3 RR 45. “[S]he said that he had called her over to —called her over to the couch or something and that he had held her tight; and th at she kept trying to turn over, and that he kept turning her back over.” 3 RR 45. [S]pecifically what she said was, once I got her ca lmed down to where she could—she could talk clearly, she said th at her older sister, I guess, was sitting or—or in another area of the l iving room or something, and Bobby was making her feel real uncomfortable. He had—I guess he had already made an attempt or something—or had—had grabbed her in an inappropriate way where s he didn't feel comfortable. She went to her older sister, asked if she could sleep with her. And being a big sister she said no, becau se, you know, whatever. And so Faith got up and went to bed and l eft her alone in the living room with Bobby.

123 RR 46. No mention was made of his claim that she sat on the defendant while

the defendant made her perform an up-and-down motio n as stated in the notice. The bulk of his testimony at trial was consistent w ith the child’s earlier testimony that day, in which she said nothing about straddlin g the defendant with an “upand-down motion” or a “rape,” but instead claimed t o have been touched through her clothing. 3 RR 17-18. Nevertheless, in a bench trial, Article 38.072 does not require a separate hearing on the reliability of the outcry statement. Hernandez v. State , 04-09-00584-CR at *5-6 (Tex. App.—San Antonio 2010, no pet.) (mem. op.). Further, no objection was made by defense counsel. See 3 RR 45-47. Therefore, any hearsay objection was waived. Ethington v. Stat e , 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).

2. Variance Between Date in Indictment and Proof at Trial The indictment alleged that Mr. Clark molested the child on or about September 29, 2012. CR 4. That date was based on an report by the child’s father to the police on October 17, 2012. 3 RR 55-56. The defense proved that no touching could possibly have happened on September 29 because the defendant was in a hospital that entire day, as shown by medi cal records and testimony. Defendant’s Exhibit 1 at 1-2 (medical records); 3 R R 66 (testimony from child’s

13grandmother that the defendant never returned to th e house after September 27); 3

RR 98 (testimony from defendant’s daughter). Mr. Splawn then became certain that the incident oc curred on September 22, 2012. 3 RR 54 (“Q: But you do know specifically now today in court that it was the 22nd that this occurred; is that what you're sa ying? A. Yeah, that's exactly right. Yes, it is.”). It turned out that Mr. Clark was not at the house on that date, either; in fact, he was at his daughter’s house. 3 RR 97 (testimony from defendant’s daughter); 3 RR 81 (testimony from defe ndant); 3 RR 68 (testimony from child’s grandmother). The 22 ndwas memorable because Mr. Clark had left an airplane at the child’s house on Thursday, broken o n Saturday, and he found out about it when he arrived on Sunday. 3 RR 81. The de fense also ruled out the previous Saturday, the 15 th , as he was at his daughter’s house then too. 3 RR 96-97 (testimony from defendant’s daughter); 3 RR 68 (tes timony from child’s grandmother); 3 RR 80 (testimony from defendant). The prosecution ultimately abandoned its attempts t o prove a specific date, opting instead to argue that the offense happened s ometime in the month of September: “It could have been that weekend, it cou ld have been a weekend before. It happened in September before the Indictment—before the date presented the Indictment—in the Indictment, and—and we're the re.” 3 RR 115.

14The prosecution is correct that it reached the goal of legal sufficiency for a

conviction. “It is well settled that the ‘on or abo ut’ language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.” Sledge v. State , 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). That each specific date offered by the witnesses was countered by evidence from the defense is immaterial. The witnes ses are free to change their testimony, and the finder of fact is free to believ e them anyway. There is no requirement that a conviction be based on consisten t evidence, as long as “after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essenti al elements of the crime beyond a reasonable doubt.” U.S. v. Vargas-Ocampo , 747 F.3d 299, 301 (5th Cir. 2014) (emphasis in original) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)).

3. Actual Innocence There were significant problems with the case. The evidence in favor of conviction consisted almost entirely of accusations by the child. As discussed above in part I.B.2, the date of the alleged touchi ng changed from weekend to weekend in September after the defense countered ea ch specific date, slowly

15evolving into a general “sometime in September” acc usation by the prosecution.

As discussed above in Part I.B.1, the allegation ma de in the outcry statement about an “up-and-down motion” on Mr. Clark’s lap did not match the child’s testimony at trial. The defendant denied touching her inappro priately. 3 RR 85-86. There was a complete lack of physical evidence, such as DNA, photographs, video, hair, fingerprints, semen, or a medical examination of th e child, linking Mr. Clark to a crime. The other person in the room at the time of the alleged touching did not even see Mr. Clark in the room. 3 RR38-41. The onlyindependent observations from anyone consisted of family members saying thatMr. Clark made them “uncomfortable.” 3 RR34; 3 RR 62. The child’s grand mother testified that “Little Bobby was laying on the couch and [the child] was s tanding at the end of the couch, and he just kind of pulled her up on him, on his side. . . . it just made me uncomfortable. And I—I said, ‘Pony, come on, let's go outside.’” 3 RR 61-62. This happened sometime during the day in the early part of September. 3 RR 62. That testimony describes activity that is not a cri me, it is consistent with the time frame that Mr. Clark was actually at the house, and it is remarkably similar to the child’s accusation about being uncomfortable on a c ouch with Mr. Clark. All in all, it is certainly fair to say that some reasonab le doubts could have crept into the fact-finder’s mind.

16But so long as the accusation is maintained through trial and there is no

conclusive evidence, such as a videotape, proving b eyond a reasonable doubt that the defendant did not

commit the crime, an appellate court must affirm the conviction. See Brooks v. State , 323 S.W.3d 893, 906-07 (Tex. Crim. App. 2010) (“A hypothetical that illustrates a proper applicat ion of the Jackson v. Virginia legal-sufficiency standard is robbery-at-a-convenie nce-store case: ‘The store clerk at trial identifies A as the robber. A properly authenticated surveillance videotape of the event clearly shows that B committed the rob bery. But, the jury convicts A. It was within the jury's prerogative to believe the convenience store clerk and disregard the video. But based on all the evidence the jury's finding of guilt is not a rational finding.’”). Later, with additional evidence, actual innocence m ay be demonstrated by a writ of habeas corpus if it is more likely than notthat no reasonable juror would have convicted. Schlup v. Delo , 513 U.S. 298, 329 (1995). On direct appeal, the standard is whether “after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” U.S. v. Vargas-Ocampo , 747 F.3d 299, 301 (5th Cir. 2014) (emphasis in or iginal) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)). Without conclusive, irrefutable

17evidence, such as a video showing someone else committing the crime, the

conviction stands. The finder of fact was free to d isregard the problems with the case and believe the child and her father. Brooks , 323 S.W.3d at 899 (“[T]he reviewing court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge o f the witnesses' credibility and the weight to be given their testimony.”). As succi nctly stated by Justice Scalia, “It is age-old wisdom among mature, experienced legal thinkers that procedure matters most: how things should be done, as opposed to what should be done. And for judges the ‘how’ is fidelity to law. But it is a hard lesson to learn, and harder to follow.” Antonin Scalia & Bryan A. Garner, Reading Law 348 (2012). PRAYER The undersigned attorney prays that the court granthim leave to withdraw as the appellate attorney for Bobby Eugene Clark, J r. Respectfully submitted, SNOW E. BUSH, JR., P.C. 420 N. Center Street Longview, TX 75601 Tel. (903) 753-7006 Fax. (903) 753-7278 E-mail: jonathanwharton1@sbcglobal.net

18/s/ Jonathan Wharton

/s/ Jonathan Wharton

/s/ Jonathan Wharton By: JONATHAN WHARTON STATE BAR NO. 24075764 ATTORNEY FOR APPELLANT, BOBBY EUGENE CLARK, JR. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing has been delivered to Zan Brown, counsel for appellee, on this the 20th day of August, 2015.

JONATHAN WHARTON

CERTIFICATE OF COMPLIANCE I hereby certify that the Appellants Brief (as measured under Tex. R. App. P. 9.4(i)(1)) contains 3,372 words as counted by Microsoft WordPerfect on this the 20 th day of August, 2015.

JONATHAN WHARTON

19