Case Information
*0 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 8/12/2015 1:35:02 PM VIVIAN LONG CLERK *1 ACCEPTED 07-15-0075-cr SEVENTH COURT OF APPEALS AMARILLO, TEXAS 8/12/2015 1:35:02 PM Vivian Long, Clerk No. 07-15-00075-CR
In The
Court of Appeals Seventh District of Texas Amarillo, Texas
ANTHONY FLORES,
Appellant, ---versus---
THE STATE OF TEXAS,
Appellee . On Appeal from Cause No. 2012-434,171 In the 364th Judicial District Court of Lubbock County, Texas The Honorable Brad Underwood Presiding APPELLANT’S REPLY BRIEF Allison Clayton State Bar No. 24059587 The Law Office of Allison Clayton P.O. Box 64752 Lubbock, Texas 79464 (806) 773 – 6889 Fax (888) 688 – 4515 Allison@AllisonClaytonLaw.com Attorney for Appellant *2 T ABLE OF C ONTENTS
TABLE OF CONTENTS ............................................................................................. i
INDEX OF AUTHORITIES ........................................................................................ ii
INTRODUCTION ....................................................................................................... 5
ARGUMENT ............................................................................................................... 7
T HE A DMISSION OF T ESTIMONIAL S TATEMENTS AT T RIAL V IOLATED M R . F LORES ’ S R IGHT TO C ONFRONT W ITNESSES A GAINST H IM AND C ONTRIBUTED TO H IS C ONVICTION A. The Clerk’s Statements Were Testimonial ............................................... 3 B. The Testimonial Statements Contributed to
Mr. Flores’s Conviction ......................................................................... 8 PRAYER ...................................................................................................................... 10
CERTIFICATES .......................................................................................................... 11
- i -
I NDEX OF A UTHORITIES
CASES
Federal Cases
Crawford v. Washington ,
541 U.S. 36, 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) .....................................3, 4 Davis v. Washington ,
547 U.S. 813, 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006) ...................................3, 4 Michigan v. Bryant ,
562 U.S. 344, 131 S.Ct. 1143 , 179 L.Ed.2d 93 (2011) ......................................... 7 State Cases
Cassidy v. State,
1 49 S.W.3d 712....................................................................................................... 6
State v. Echendu,
2012 WL 1130419 (Tex. App.—Dallas Apr. 5, 2012, no pet.) ............................ 6
Hernandez v. State ,
332 S.W.3d 664 (Tex. App.—Texarkana 2010, no pet.) ....................................... 8 Langham v. State ,
305 S.W.3d 568 (Tex. Crim. App. 2010) ............................................................... 9 Vinson v. State ,
252 S.W.3d 336 (Tex. Crim. App. 2008) ............................................................... 4 Wilson v. State ,
296 S.W.3d 140 ...................................................................................................... 7 - ii -
I NDEX OF A UTHORITIES ( CONT ’ D ) CONSTITUTIONAL PROVISIONS U.S. Const. Amend. VI .............................................................................................. 3
Tex. Const. art. I ......................................................................................................... 3
STATE RULES
T EX . R. A PP . P. 44.2(a) .................................................................................................................... 9
- iii -
No. 07-15-00075-CR
In The
Court of Appeals Seventh District of Texas Amarillo, Texas
ANTHONY FLORES,
Appellant, ---versus---
THE STATE OF TEXAS,
Appellee . On Appeal from Cause No. 2012-434,171 In the 364th Judicial District Court of Lubbock County, Texas The Honorable Brad Underwood Presiding APPELLANT’S REPLY BRIEF TO THE HONORABLE COURT OF APPEALS:
ANTHONY FLORES, Appellant in docket number 07-15-00075-CR, having filed his Opening Brief now submits this brief in reply to the brief
submitted by the State. Appellant requests the Court reverse the Judgment entered
in cause number 2012-434,171 out of the 364th Judicial District Court of Lubbock
County, Texas, and remand the case for further proceedings in the court below.
I NTRODUCTION
A jury found appellant Anthony Flores guilty of robbing Lamar Johnson at gunpoint. (6 RR 28; CR 90). Lamar testified he was about to start pumping gas
when Anthony ran up behind him brandishing what Lamar thought was a shotgun.
(5 RR 82-83, 85). Anthony took money from Lamar. ( Id. 84). At trial, Lamar
testified Anthony had also tried to rob another person. ( Id. 94, 158). Trial,
however, was the first time this attempted robbery was mentioned. Either way,
Anthony completes the robbery of Lamar, runs back to his car, puts the purported
shotgun back into the trunk of the car, and drives away. ( Id. 94, 133, 158).
Lamar does not immediately report the crime, as he would much rather deal with the robber himself. ( Id. 93, 98). He could not get the gas pump to work,
though. ( Id. 85-86). He struggled with the pump for a while before abandoning
his aspirations of vengeance. ( Id. 86). Several minutes after the robbery, the store
clerk finally called 911 to report a customer was robbed at gunpoint. ( Id. 98).
About one week later the police arrested Anthony. (5 RR 36). Anthony confessed to the robbery. ( Id. 138-39). He insisted, however, he had not used a
shotgun on Mr. Johnson. 5 RR 138-39). Rather, Anthony told police he flashed a
stick wrapped with tape and made up to resemble a gun. ( Id. 139). Despite this
defense, the jury found Anthony guilty of aggravated robbery with a deadly
weapon. (CR 90).
A RGUMENT
T HE A DMISSION OF T ESTIMONIAL S TATEMENTS AT T RIAL V IOLATED M R . F LORES ’ S R IGHT TO C ONFRONT W ITNESSES A GAINST H IM AND C ONTRIBUTED TO H IS C ONVICTION A. The Clerk’s Statements Were Testimonial Testimonial statements repeated at trial by someone other than the declarant violate a defendant’s right to confront adverse witnesses. U.S. C ONST . A MEND .
VI.; T EX . C ONST . art. I, § 10; Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct.
1354, 1374, 158 L.Ed.2d 177 (2004). A statement is testimonial if its “primary
purpose” is “to enable police assistance to meet an ongoing emergency.” Davis v.
Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 2274, 165 L.Ed.2d 224 (2006).
In this case, after the robbery, Anthony ran to his car, put the purported shotgun in his trunk, and drove away. ( Id. 94, 133, 158). Several minutes later,
Lamar finally reported the robbery to the clerk, who then called 911. ( Id. 26, 39).
On the 911 call, the clerk gave the store’s address and reported that fifteen minutes
prior to the call a customer was robbed at gunpoint in the parking lot. [1] (State’s
Exhibit 1, Recording 1, at 0:11 and 0:14). At trial, the court admitted the phone
call into evidence. (4 RR 22-23). The clerk never testified.
*8 In its brief, the State primarily contends the clerk’s statements were not testimonial because they were made in the context of an ongoing emergency. The
touchstone of an “ongoing emergency” analysis is whether the declarant was
speaking about events “ as they were actually happening , rather than describing
past events.” Davis , 547 U.S. at 827, 126 S.Ct. at 2276 (internal quotation
omitted) (emphasis in original). Other factors relevant to the analysis are:
1) whether the situation was still in progress; 2) whether the questions sought to determine what is presently happening as opposed to what has happened in the past; 3) whether the primary purpose of the interrogation was to render aid rather than to memorialize a possible crime; 4) whether the questioning was conducted in a separate room, away from the alleged attacker; and 5) whether the events were deliberately recounted in a step-by-step fashion.
Vinson v. State , 252 S.W.3d 336, 339 (Tex. Crim. App. 2008).
The clerk’s statements were made long after the robbery occurred. The crime was no longer in progress. See id. The robbery had happened “in the past.”
See id. When the clerk called, he was not seeking aid from the police to neutralize
a robbery or any other ongoing threat. See id. There is a very big difference
between “A customer is being robbed at gunpoint in the parking lot” and “Fifteen
minutes ago, a customer was robbed at gunpoint in the parking lot.” When the
Court listens to the 911 call, it will hear for itself – there was no ongoing
emergency. The call was to memorialize a completed crime and summon police to
the scene to investigate a completed crime.
The State avers the “ongoing” nature of the emergency was that the robber was still at large. A fair reading of both Appellant’s and State’s brief reveals the
crux of their debate: what constitutes the “emergency” in this case. Appellant
contends (on the unique facts of this case) the emergency is limited to the actus
reus of the robbery itself. Once the robbery was completed, the emergency was
concluded. The State contends the emergency was a potentially armed robber
driving around for an undetermined amount of time after the robbery.
The State’s reasoning is flawed; the rule created by it is unworkable. The State first relies on the evidence Appellant tried to rob another patron before
fleeing. (“Brief for the State,” pg. 12). Evidence of a second robbery never arose
until Lamar’s testimony at trial. (5 RR 94, 158). The State, on appeal, is trying to
support its “ongoing emergency” analysis with evidence that was unheard of until
over one year after the incident. This alleged second attempted robbery is
irrelevant to the objective determination of whether the participants that night
thought there was an ongoing emergency or a concluded robbery.
The State likewise tries to make much of the evidence the robber brandished a gun during the robbery. It fails to consider, however, the fact that the robber
locked the gun the trunk of his car before he drove away. (5 RR 133). Any threat
to the public and police was minimal. See Michigan v. Bryant , 562 U.S. 344, 364,
131 S.Ct. 1143, 1158-59, 179 L.Ed.2d 93 (2011).
The State likewise omits from its discussion any recognition that the robber did not shoot or injure Lamar, factors which are traditionally included in
determining whether there is an ongoing emergency. See id. , 562 U.S. at 364-65,
131 S.Ct. at 1159 (stating “[t]he medical condition of the victim is important to the
primary purpose inquiry . . .”). For example, in Michigan v. Bryant , relied heavily
upon by the State, the police came upon a mortally wounded man who indicated
his attacker had shot him “a few minutes” beforehand. In State v. Echendu , also
cited by the State, the victim called 911 stating “she was ‘bleeding everywhere’”
and asking the police to “hurry” to her aid. No. 05-11-00346-CR, 2012 WL
1130419 at *1 (Tex. App.—Dallas Apr. 5, 2012, no pet.). Again, in the Cassidy v.
State case cited by the State, the victim had been stabbed and there was “a
considerable amount of blood” at the scene. 149 S.W.3d 712, 713-14 (Tex.
App.—Austin 2004, pet. ref’d).
Finally, the State says Appellant’s contention that the passage of several minutes before the clerk made the phone call is highly relevant is “unfounded.”
(Brief for the State, pg. 11). This passage of time is, in fact, very relevant. It
instructs the Court not only as to whether the statement concerned an ongoing
emergency or a completed crime but it also reveals the intent and demeanor of the
declarant.
By the time the clerk made the 911 call, the robbery was over and the robber was long gone. There was no ongoing threat. The clerk was reporting a crime had
occurred . Moreover, the demeanor of the clerk and even the victim shows neither
were under the stress of the crime at the time of the statement. This is an important
factor given the State’s reliance on Wilson v. State , 296 S.W.3d 140 (Tex. App.—
Houston [1st Dist.], pet. ref’d). In Wilson , the declarant who made the statements
was “sobbing,” “’very frightened’ and hysterical,” and “’under the stress’ of the
crime.” Id. at 146. When she saw the defendant, “seven or eight minutes” later,
she was “still weeping” when she made more statements. Id.
This is in stark contrast to the demeanor of the declarant in the case at bar.
There was no weeping, sobbing, or hysteria involved. The clerk calmly reported
one of his customers had been robbed. There is not even any evidence that the
clerk actually saw the robbery when he made the report.
At the end of the analysis, Appellant recognizes the Court’s analysis must be very case-specific. With a few variations in the evidence or in the constitution of
the people involved, the statements would not be testimonial. However, on this
record with this declarant, the statement was clearly reporting a concluded crime
by a person capable of calm reflection for the purpose of initiating a police
investigation. As such, it was testimonial.
B. The Testimonial Statements Contributed to Mr. Flores’s Conviction Anthony confessed to robbing Lamar, but he steadfastly insisted the “gun” he displayed was in fact a stick made up to simulate a gun. (5 RR 139). The State
was unable to directly or indirectly link Mr. Flores to any weapon. The closest the
State got was a single spent shotgun shell in the floorboard of Anthony’s car,
which Anthony was not even in at the time of the stop one week after the robbery.
(5 RR 32; 7 RR 71). A single shotgun shell of unknown size and unknown origin
does very little to support the deadly weapon element. (Brief for the State, pg. 22).
Apart from one shotgun shell, the only other evidence on the deadly weapon issue was the conflicting statements of Anthony and Lamar, along with the clerk’s
statement. As detailed in Appellant’s Opening Brief on the Merits, Lamar’s
character and motivation for testifying was questionable, and his testimony on
basic facts was impeached several times over. The State questions whether Lamar
would have handed over his money had he known the gun was not real. Lamar’s
ability to, in the middle of the night, discern the gun’s authenticity has no bearing
on whether it was, in reality, a deadly weapon. See Hernandez v. State , 332
S.W.3d 664 (Tex. App.—Texarkana 2010, no pet.) (holding a toy gun was
insufficient to qualify as a deadly weapon even though the robbery victim
perceived it was real).
Besides, if Lamar’s testimony was so reliable, then why did the State insist on admitting the clerk’s 911 call. After getting the phone call into evidence, it then
used the clerk’s statements to bolster Lamar’s recollection – all done through the
testimony of a police officer. (4 RR 35; 5 RR 126). The prosecutor again
reminded the jury that not just Lamar had seen the shotgun. In closing arguments
he said “Even the clerk says this guy just got held up by a shotgun. Shotgun,
shotgun. Two people have now said that.” (6 RR 13) (emphasis added). Then,
again, at the end of rebuttal closing argument, the prosecutor assured the jury it
could trust Lamar’s questionable testimony because, “Then [the clerk], not Lamar,
[the clerk] is the one that calls 911. He also knew there was a shotgun.” ( Id. 26).
Clearly the prosecutor at trial thought Lamar’s testimony needed the support of the clerk’s statements. The State’s arguments on appeal to the contrary are
belied by its obvious strategy at trial.
At the core of this case is the State, afforded the benefit of unchallenged eyewitness testimony versus Anthony, who was not even able to ask the clerk if he
actually saw the robbery happen. This is the very situation the Confrontation
Clause was designed to prevent. And to make matters worse, there is a
“reasonable possibility” that admission of the 911 calls moved the jury from a state
of non-persuasion to one of persuasion on the deadly weapon issue. See Langham
v. State , 305 S.W.3d 568, 582 (Tex. Crim. App. 2010); T EX . R. A PP . P. 44.2(a).
P RAYER
Appellant Anthony Flores prays this Court would find the trial court committed reversible error by allowing testimonial statements to establish the
deadly weapon element of the aggravated robbery charge. Mr. Flores asks the
Court to reverse the Judgment and remand the case for proceedings consistent with
the Court’s opinion.
Respectfully submitted, Law Office of Allison Clayton P.O. Box 64752 Lubbock, Texas 79464-4752 Phone No.: (806) 773-6889 Fax No.: (888) 688-4515 By:
Allison Clayton State Bar No. 24059587 Allison@AllisonClaytonLaw.com *15 CERTIFICATE OF SERVICE I certify that on August 12, 2015, a copy of this brief was served on opposing counsel, Jeffrey S. Ford of the Lubbock County District Attorney’s
Office, via electronic mail.
Allison Clayton CERTIFICATE OF COMPLIANCE I certify the foregoing Brief on the Merits complies with Rule 9.4(i)(2)(A) of the Texas Rules of Appellate Procedure. The brief, excluding those portions
detailed in Rule 9.4(i) of the Texas Rules of Appellate Procedure, is 2,100 words
long. I have relied upon the word count function of Microsoft Word, which is the
computer program used to prepare this document, in making this representation.
Allison Clayton
[1] In its brief, the State avers the time stamps on the surveillance footage indicate the phone call was actually made six minutes after the robbery “ not fifteen minutes as suggested by Appellant.” (Brief for the State, pg. 2 n. 13). First, Appellant’s Opening Brief, maintaining absolute accuracy to the record, simply reiterated the clerk’s statements, which was that the robbery occurred fifteen minutes prior to the phone call. (Appellant’s Opening Brief on the Merits, pg. 10). Second, the very fact there is a dispute between what the clerk’s statements were and what other evidence indicated only serves to further demonstrate the need for actual cross-examination of the clerk.