Case Information

*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 5/1/2015 11:58:57 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-14-00174-cr FIRST COURT OF APPEALS HOUSTON, TEXAS 5/1/2015 11:58:57 PM CHRISTOPHER PRINE CLERK

CASE NO. 01-14-00174-CR IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS ************************* STEPHEN CLARK WEBB, Appellant vs.

THE STATE OF TEXAS, Appellee *********************** Appeal from the 337 TH Judicial District Court of Harris County, Texas Trial Court Cause No. 1389676 ************************** APPELLANT’S MOTION FOR REHEARING OF THE COURT’S APRIL 2, 2015 JUDGMENT *************************** ORAL ARGUMENT JOHN S. COSSUM

REQUESTED TSB# 04854500

440 Louisiana, Suite 900 Houston, Texas 77002 Telephone: (713) 222-6134 Facsimile: (713) 222-6144 jcossum@cossumlaw.com ATTORNEY FOR APPELLANT, STEPHEN CLARK WEBB *2 TABLE OF CONTENTS Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III ARGUMENT AND AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . 1

IV PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Certificate of Service and Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

i. *3 INDEX OF AUTHORITIES TEXAS CASES PAGE

Mayfield v. State, 114 Tex. Crim 425, 25 S.W.2d 833 (1930).. . . . . . . . . . . . . 1,2

CASES FROM OTHER JURISDICTIONS

Commonwealth v Almeida , 433 Mass. 717, 746 N.E.2d 139 (2001). . . . . . . . . . 3

State v. Alan , 12 Neb. App. 261, 670 N.W.2d 814 (2003). . . . . . . . . . . . . . . . . . 3

Godfrey v. State 258 Ga. 28, 365 S.E.2d 93,94 (1998).. . . . . . . . . . . . . . . . . . . . 3

State v. Posten 302 N.W.2d 638 (Minn 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEXAS STATUTES

TEX. R. EVID. 402. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TEX. R. EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TEX. R. EVID. 803. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ii.

I. INTRODUCTION

By this motion for rehearing, Appellant asks this Court to revisit its decision to affirm Appellant’s conviction for the offense of indecency with a child. Rehearing

is appropriate because, in affirming the trial court verdict, the Court misapplied the

excited utteranc exception to the hearsay rule to statements made in one’s sleep. For

that reason, Appellant asks the Court to reconsider its ruling and to reverse the trial

Court’s admission of clearly inflammatory and uniquely unreliable hearsay evidence.

II. SUMMARY OF ARGUMENT

Appellant submits that the Court’s finding that “somniloquy” is admissible hearsay under the excited utterance exception to the hearsay rule is erroneous.

Specifically, Appellant contended at trial, in his Appellate brief, and contends again

in this motion for rehearing, that the “sleep talk” from the Complainant does not

qualify as an excited utterance because it is not a conscious reflection of the thoughts

of the Compalinant, but rather unconscious banter.

III. ARGUMENT AND AUTHORITY

In asserting its position that the sleep talk of the Complainant was properly admitted, the Court suggested that the primary Texas case relied upon by Appellant,

Mayfield v State , 25 S.W.2d 833 (Tex. Crim. App. 1930), though validly decided, no

longer applied because the enactment of the Texas Rules of Evidence rendered it

moot as it applied to the facts of this case. This evaluation is seriously flawed and

should be reconsidered.

In finding that statements made by the Complainant while unconscious in a murder case against the Defendant were inadmissible, the Texas Court of Criminal

Appeals in Mayfield found that when a “declaration is offered, it must appear that the

declarant was conscious.” Id. at 834. This language was at least impliedly recognized

by this Court in its decision as a valid interpretation of the common law. The Court,

however, then erroneously concluded that with the codification of the “excited

utterance” rule in the Texas Rule of Evidence, the Mayfield requirement that a person

actually be conscious when a declaration is made for it to be admissible, somehow

went away. It was then concluded that Appellant’s proper objection (based on the

Court’s apparent concession of the questionable reliability of statements made in

one’s sleep), should have been under Rules 402 and 403.

Whereas certainly Appellant could have objected that an unconscious outcry is irrelevant under Rule 402, the inadmissible hearsay quality of the such an outcry

renders a Rule 403 balancing objection not only unnecessary, but inappropriate (there

can be no prejudicial vs probative balancing test where the proffered testimony is

inadmissible). The suggestion that the excited utterance hearsay exception, based

entirely on the premise that such statements are admissible because they are reliable,

should apply to an outcry made while one is unconscious, goes against the entire

basis of the hearsay exception. This is the sound holding in Commonwealth v

Almeida , 433 Mass. 717, 746 N.E.2d 139 (2001), where the Court held “(a)dmitting

hearsay evidence of statements made while a person is sleeping, so-called ‘sleep talk,’

would run counter to one of the central principles governing the admissibility of

evidence, namely, that the proffered material is reliable.” Almeida at 719.

It should be noted that Rule 803 of the Massachusetts Guide to Evidence, like Rule 803 of the Texas Rules of Evidence, allows excited utterances as an exception

to the hearsay rule, yet decided Almeida as it did. Similarly the rules of evidence in

Nebraska, Georgia and Minnesota all have a Rule 803, yet in such states sleep talk

has not been deemed admissible as an excited utterance. See State v. Alan , 12 Neb.

App. 261, 670 N.W.2d 814 (2003) (expressions of a person made while asleep are not

admissible as spontaneous statements, since they proceed from an unconscious and

irresponsible condition. It has been said that such expressions have little or no

meaning, are as likely to refer to unreal facts or conditions as to things real, and are

wholly unreliable ) Godfrey v. State 258 Ga. 28, 365 S.E.2d 93,94 (1998) (sleep talk

not sufficiently reliable to merit admission in evidence); State v. Posten 302 N.W.2d

638 (Minn 1981)(while dreams are in some sense connected to waking hour’s desires

and anxieties, there is no indication that dream sequences mirror actual events”).

It is imperative that the Court consider whether there is a sufficient indicia of

reliability to justify the application of a hearsay exception before considering an

entire category of statements admissible, particularly statements which by their nature

are universally considered suspect. This did not occur in the Court’s original decision.

In light of the mistake of the Court in concluding that the admission of outbursts by the Complainant while sleeping should be allowed, the Court should

further reconsider the other errors identified by Appellate in his brief, consider their

cummulative effect, and find reversible error.

IV. PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, the Court should reconsider its opinion rendered April 2, 2015, find that reversible error appears in the record of

the trial of this case, reverse the conviction of Appellant and remand the case to the

trial court for further proceedings.

Respectfully submitted: /s/ John S. Cossum JOHN S. COSSUM TSB# 04854500 440 Louisiana, Suite 900 Houston, Texas 77002 Telephone: (713) 222-6134 Facsimile: (713) 222-6144 E-mail: jcossum@cossumlaw.com ATTORNEY FOR APPELLANT, STEPHEN CLARK WEBB *8 CERTIFICATE OF SERVICE As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d) and (e), I certify that a true and correct copy of the foregoing document has been delivered to

counsel for the State of Texas, Eric Kugler, via electronic transmission, on this, the

1st day of May, 2015, as follows:

ERIC KUGLER , Assistant District Attorney

TSB # 796910 E-Mail: kugler_eric@dao.hctx.net HARRIS COUNTY DISTRICT ATTORNEY’S OFFICE 1201 Franklin, Suite 600

Houston, Texas 77002

Telephone: (713) 755-5826

/s/ John S. Cossum JOHN S. COSSUM TSB# 04854500 440 Louisiana, Suite 900 Houston, Texas 77002 Telephone: (713) 222-6134 Facsimile: (713) 222-6144 E-mail: jcossum@cossumlaw.com ATTORNEY FOR APPELLANT, STEPHEN CLARK WEBB