Ex Parte Robert Clark Rhodes v. State

ACCEPTED 14-15-00618-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 10/28/2015 5:37:08 PM CHRISTOPHER PRINE CLERK

No. 14-15-00618-CR _________________________________ FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS IN THE COURT OF APPEALS 10/28/2015 5:37:08 PM FOR THE FOURTEENTH SUPREME JUDICIAL DISTRICT CHRISTOPHER A. PRINE HOUSTON, TEXAS Clerk _________________________________

EX PARTE ROBERT CLARK RHODES,

Appellant _________________________________

Appeal from the 400TH Judicial District Court of Fort Bend County, Texas _______________________________________

BRIEF OF APPELLANT ROBERT CLARK RHODES ________________________________________

James D. Pierce David M. Medina 1 Sugar Creek Center 1080 5300 Memorial Drive, Suite 890 Sugar Land, TX 77478 Houston, TX 77007 713-650-0150 713-256-3969 SBN 15994500 SBN 00000088 jim@jamespierce.com davidmedina@justicedavidmedina.com

Attorneys for Appellant Robert Clark Rhodes

Oral Argument Requested

IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all the parties and their attorneys: Appellant: Robert Clark Rhodes Appellee: State of Texas

Attorneys: Attorneys: Mr. James D. Pierce Mr. John Harrity. III Texas Bar. No. 15994500 Assistant District Attorney Fort Bend 1 Sugarland Creek Center 1080 County Sugar Land, Texas 77478 309 South 4th Street, Suite 258 Tel: (713) 650-0150 Richmond, Texas 77469

Mr. David M. Medina Mr. Fred Felcman Texas Bar No. 00000088 Texas Bar No. 06881500 5300 Memorial Drive, Suite 890 1422 Eugene Heimann Circle Houston, Texas 77007 Richmond, Texas 77469 Telephone: 713-256-3969 Telephone: 281-341

Mr. Sam W. Dick Texas Bar No. 05813600 1 Sugar Creek Center Boulevard, Suite 1045 Sugar Land, Texas 77478-3661 Telephone: 281-242-5555

Mr. Terry W. Yates Texas Bar No. 22142600 6750 West Loop South, Suite 845 Bellaire, Texas 77401 Telephone: 713-861-3100

i

REQUEST FOR ORAL ARGUMENT

Appellant respectfully requests oral argument. Appellant believes that oral argument will aid the court because this case presents unique issues of law and fact which are not often litigated in the courts of appeals. Further, the case raises serious Constitutional and Due Process concerns involving the procedure to be followed when another state is seeking to extradite a resident of the State of Texas without a satisfactory showing that he is the person wanted in that state or that he committed a crime there.

ii

TABLE OF CONTENTS

Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i Request for Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Argument & Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Scope of Habeas Corpus Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Jurisdiction over Acts Occurring Outside Requesting State . . . . . . . . . . . 10

Identity Affidavit is Insufficient and the Failure to Allow . . . . . . . . . . . . 15 Cross Examination Violates Confrontation and Due Process

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Appendix Application for Writ of Habeas Corpus filed June 19, 2015 State's Answer to Defendant's Writ of Habeas Corpus filed July 16, 2015

iii

INDEX OF AUTHORITIES Cases:

Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . 2, 8, 17, 18 Deur v. Newaygo Sheriff, 420 Mich. 440, 362 N.W.2d 698 (1985). . . . . . 7, 12, 13 Ex parte Cheatham, 95 S.W. 1077 (Tex. Crim. App. 1906). . . . . . . . . . 7, 9, 10, 16 Ex Parte Jowell, 223 S.W. 456 (Tex. Crim. App. 1920). . . . . . . . . . . . . . . . . . .7, 9 Ex parte King, 236 S.W.2d 806, 807 (Tex. Crim. App. 1951). . . . . . . . . . . . 11, 12 Hyatt v. People, 188 U.S. 691 (1903). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v. Blume, 443 Mich 476, 505 N.W.2d 843 (Mich. 1993) . . . . . . . . . . . . . 12 Simpson v. State, 17 S.E. 984, 92 Ga. 41 (Ga. 1893) . . . . . . . . . . . . . . . . . . . . . . 13 State v. Palermo, 579 P.2d 718, 720 (Kan. 1978) . . . . . . . . . . . . . . . . . . . . . . . . 13 Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911) . . . 7, 13, 14 Statutes and Rules: Texas Code of Criminal Procedure Article 51.04 . . . . . . . . . . . . . . . . . . . . . . 2, 11 Texas Code of Criminal Procedure Article 51.13, Section 6 . . . . . . . . . . . 2, 12, 15 Texas Code of Criminal Procedure Article 51.13, Section 10 . . . . . . . . . . . . . . . 7 United States Constitution: Article IV, Section 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Article III, Section 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iv Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 7, 14, 16

v

STATEMENT OF THE CASE

Appellant Robert Clark Rhodes, applicant in the court below, appeals from the denial of a writ of habeas corpus. A hearing was held on Appellant’s writ in trial court cause number 15-DCR-068818 in the 400th Judicial District Court of Fort Bend County, Texas, the Honorable Maggie Jaramillo, presiding, (CR. Supp. at p. 4). The writ concerns a Texas Governor’s Warrant based upon a request from the State of Iowa to extradite Appellant. (CR. 161-62; RR Vol. 1 Supp). 1

1. The record on appeal consists of a one volume Clerk’s Record and Supplement (CR. and CR- Supp.) and a two volume Reporter’s Record and Supplement (RR. and RR- Supp.).

ISSUES PRESENTED

1) The Texas Governor’s warrant did not meet the requisites of Article 51.04 of the Texas Code of Criminal Procedure, and neither the affidavit and complaint nor the evidence presented at the hearing showed that Appellant committed an act “intentionally resulting in a crime” in the demanding state. Did the trial court err in failing to grant habeas relief where the Governor’s Warrant failed to meet the requisites of Articles 51.04 and 51.13 § 6 of the Texas Code of Criminal Procedure?

2) Appellant filed a verified challenge to the jurisdiction of the demanding state, and provided evidence that Appellant was not in the demanding state. Did the trial court err in failing to consider territorial and Due Process challenges to the jurisdiction of the demanding state?

3) The Iowa Assistant Attorney General utilized Fort Bend County jail records and summarily argued that this was the person wanted in Iowa. The affidavit also conflicted with the description made in the complaint. Did the trial court err in failing to grant habeas relief where the State’s affidavit did not sufficiently identify the Appellant and failed to provide the basis for personal knowledge?

4) Appellant, Robert Rhodes, was not allowed to confront the witness (the Iowa Assistant Attorney General) who provided conclusory testimony that was inconsistent with the complaint and affidavit, but was utilized to secure a Texas governor’s warrant. Was Appellants’ Sixth Amendment right of confrontation violated in contravention of Crawford v. Washington, 541 U.S. 36, 68 (2004)?

STATEMENT OF FACTS

Appellant is a resident of Sugar Land, Texas. (RR Vol. 2 at p. 34). He sought a writ of habeas corpus challenging a Texas Governor’s Warrant issued at the request of the State of Iowa. The warrant was issued based upon a muddled complaint and affidavit and a conclusory “affidavit of identifying witness” from the prosecutor in Iowa.

The complaint alleges that in 2011, Robert Sonfield, a Houston attorney, informed Philip Johnston of Canada that Sonfield “represented a client who had a legitimate claim to the lottery but wanted to remain anonymous.” (RR. Supp at p. 18). The complaint alleges that Sonfield and Rhodes, “who at all relevant times have been residents of Houston, Texas, request[ed] Johnston’s assistance with claiming the ticket.” (Id.). It alleges that in November of 2011, Johnston contacted the lottery and first claimed to be the winner of the ticket, but later claimed to be representing an “anonymous party.” (Id.). The complaint also alleges that in December of 2011, Crawford Shaw as trustee for Hexham Investments Ltd., presented a claim and the winning lottery ticket to the Iowa Lottery Commission. (Id.). Johnston was listed as the Trustor/President of Hexham Investments Ltd. (Id.). The complaint alleges that the lottery refused to pay the claim because the anonymous client was not identified. (Id.).

The complaint states that the “purchase [of the lottery ticket] was captured and recorded with video and audio surveillance.” (Id.). It alleges that MUSL (Multi-State Lottery Association) received a “tip that the individual in the video is the defendant, Eddie Tipton.” It further alleges “the defendant is the Director of Security for MUSL and lives in Iowa.” (Id.).

An affidavit of identifying witness was provided by Robert Sand, a prosecutor in Iowa. (RR Supp. at p. 11). He simply stated that, “I have looked at the booking photograph of Rhodes from when recently he was arrested in Fort Bend County, Texas, and the person in that photograph is the same Robert Rhodes that has been charged with 2 counts of Fraud in the State of Iowa.” (RR. Supp. at p. 11). There is no explanation as to how the prosecuting attorney in Iowa is able to identify the accused or that he has personal knowledge of the facts alleged. He fails to state that he reviewed any documents or fingerprints related to the investigation in Iowa, or spoke with any witnesses from Iowa.

In fact, the investigators in Iowa had little to no information concerning the Appellant. In a deposition taken in Iowa in another matter, the officer who supplied the affidavit for the complaint testified in a deposition:

“What is it that you believe Mr. Rhodes did to commit the crime he's charged with?” [Officer Don Smith] Answer: "I can't advise you."

(RR Vol. 2 at p 60).

"All right. Do you have any information that he was fleeing the State of Iowa or fled here or was trying to avoid prosecution here?"

Answer: "No." (Id.)

"Do you have any evidence that Mr. Rhodes had any contact with Mr. Johnston?" Answer: "Standby. That would be a question for Special Agent Matt Anderson." Question: "All right. Nothing that you developed would show that; is that correct?" "Correct."

(RR Vol. 2 at p. 61).

Neither the prosecutor Robert Sands or Agents Smith or Anderson appeared in Texas to testify at the extradition hearing. There was no opportunity to cross-examine or confront these witnesses for purposes of establishing the identity of the accused or the jurisdiction of the Iowa courts. The testimony was uncontroverted that Appellant has never done business in Iowa and, other than having friends who reside there, has no contacts with the State of Iowa. (RR Vol 2 at p. 65).

During the hearing on the verified writ of habeas corpus, the Fort Bend County prosecutor argued that Appellant could not challenge a governor’s warrant on the grounds that the requesting state lacked personal or territorial jurisdiction *6 over the accused. The prosecutor also argued that it did not matter whether the Appellant was the person described in the complaint, but rather only whether the Appellant was the person the Iowa prosecutor wanted. 1 A verified writ of habeas corpus was filed challenging territorial jurisdiction and evidence was offered that the complaint and supporting affidavit did not sufficiently identify the Appellant. (RR Supp. 17-18). The trial court determined that the2 sufficiency of the governor’s warrant was not an issue that could be challenged by writ of habeas corpus. (RR. Supp. 4). Specifically, the court stated that she could not examine the jurisdiction of the forum state, or the quality of the identification affidavit. (Id.).

2. In this case, the Iowa prosecutor stated he wanted the person who was arrested on a contested fugitive warrant and booked in the Fort Bend County Jail, and the complaint described the defendant in various ways, i.e., a resident of Houston and a resident of Iowa. 3. “The only issue that should be before the Court once a Governor's Warrant has been issued -- you got to understand, a governor asks another governor, ‘I want this person in your state to be extradited for a crime over here.’"(RR Vol. 2 at p. 9). “[B]ut I'm going to object every time he wants you to go behind the warrant...” “THE COURT: I sustained your objection.” (RR Vo. 2 at p. 24).

SUMMARY OF ARGUMENT

Extradition under the Uniform Extradition Act and the United States Constitution is not perfunctory. An accused who is sought by extradition in a demanding state for actions occurring outside the demanding state has the right to challenge the “legality of his arrest.” Tex. Code Crim. Art. 51.13 § 10; Ex Parte Jowell, 223 S.W. 456, 457 (Tex. Crim. App. 1920). The courts of the demanding state only have jurisdiction for acts committed in the demanding state or for acts outside the demanding state that intentionally result in a crime in the demanding state. Tex. Code Crim. Art. 51.13 § 6; Deur v. Newaygo Sheriff, 420 Mich. 440, 446 362 N.W.2d 698, 701 (Mich 1985); Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911). Strassheim sets the standard for limits of extra-territorial jurisdiction under the United States Constitution. U.S. Const. Article III Section 2; U.S. Const. Amendment 6.

In addition, the identity affidavit is wholly insufficient. Ex parte Cheatham, 95 S.W. 1077, 1079 (Tex. Crim. App. 1906). It is not evidence of anything other than the person who was arrested in Texas is the person arrested in Texas. (RR. Supp. at p. 11). The witness does not explain his conclusion or the basis of his conclusion. Further, the complaint and supporting affidavit describe the accused as a resident of Houston, a person named “Eddie Tipton,” leading to contradictions on *8 the face of the warrant. (RR. Supp at p. 18). Appellant was denied his constitutional right to test the contradictions by cross-examination. See Crawford v. Washington, 541 U.S. 36, 68 (2004).

ARGUMENT & AUTHORITIES

I. Scope of Habeas Corpus Inquiry

“The courts have jurisdiction to interfere by writ of habeas corpus, and to examine the grounds upon which an executive warrant for the apprehension of an alleged fugitive from justice from another state is issued, and, in case the papers are defective and insufficient, to discharge the prisoner.” Hyatt v. People, 188 U.S. 691, 710 (1903). Since the procedures to obtain a governor’s warrant are summary and ex parte, the courts may look to parol evidence to rebut the accusations in the writ. Ex Parte Jowell, 223 S.W. 456, 457 (Tex. Crim. App. 1920). "It is not an open question as to the authority of courts of this state to go behind the executive warrant, in order to examine and review the grounds upon which the Governor may have issued his extradition warrant.” Id., (quoting, Ex parte Cheatham, 95 S.W. 1077, 1079 (Tex. Crim. App. 1906). As stated in Cheatham:

On the other hand, the liberty of the citizen is involved, and the provisions of law which Congress has erected for his safeguard should be respected and complied with. These provisions are intended for the protection of the citizen against undue arrest and extradition, and the writ of habeas corpus is provided in order to protect the humblest as well as the highest in his or her rights and privileges. We hold, in this case, that the law has not been complied with.

Ex parte Cheatham, 95 S.W. at 1081 (finding that affidavits supporting a Texas *10 Governor’s Warrant made on information and belief insufficient). Additionally, Cheatham states that the courts are required to determine whether the requesting state has jurisdiction over the person and the act.

A man cannot be legally charged with crime when there is no jurisdiction to try him. The fact that he is so legally charged means that he is charged by an authority having a right to try him. The right to try means jurisdiction over the place where the crime has been committed, and over the person who commits it.

Id. at 1081. It is this very inquiry that the prosecutor maintained was not permitted, arguing that Appellant could not go “behind” the warrant. The trial court erred in determining that it was not permitted to look beyond the recitations in the Texas Governor’s Warrant and in finding it had no authority to make further inquiry. (RR. Supp. at p. 4). The trial court’s failure amounted in a denial of Appellant’s right to Due Process.

II. Jurisdiction over Acts Occurring Outside the Requesting State

Traditionally, Article IV, Section 2 of the United States Constitution required the demanding state to demonstrate the accused’s fugitive status by showing that he or she was actually present at the time of the offense and subsequently fled. Hyatt v. People, 188 U.S. 691, 711-12 (1903). The Constitutional rule became *11 incorporated in Article 51.01 of the Texas Code of Criminal Procedure:

Art. 51.01. DELIVERED UP. A person in any other State of the United States charged with treason or any felony who shall flee from justice and be found in this State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.

Article 51.04 of the Texas Code of Criminal Procedure requires five elements be set forth in the complaint:

1. The name of the person accused;

2. The State from which he has fled;

3. The offense committed by the accused;

4. That he has fled to this State from the State where the offense was committed; and

5. That the act alleged to have been committed by the accused is a violation of the penal law of the State from which he fled.

The requirement that the accused fled from the State where the offense was committed was clearly stated in Ex parte King, 236 S.W.2d 806, 807 (Tex. Crim. App. 1951):

Though the charge of neglect and failure to support a child is of a continuous nature, the state having alleged the offense to have been committed on the specific date of September 25, 1950, and it being undisputed that appellant was not then, and had not been for several

months prior thereto, in the State of Oklahoma, appellant could not be said to have fled from the State of Oklahoma and is not therefore a fugitive from justice.

Id. Subsequent to Ex parte King, in 1965, the Texas legislature adopted the Uniform Criminal Extradition Act, codified in the Texas Code of Criminal Procedure. Article 51.13, Section 6 provides for the extradition for certain offenses committed outside of the requesting state but only for actions “intentionally resulting in a crime” in the requesting state. Tex. Code Crim. P. Art. 51.13 Section 6. A negligent action or any action which does not “intentionally result in a crime,” is not subject to extradition under the Uniform Act. Deur v. Newaygo Sheriff, 420 Mich. 440, 446 362 N.W.2d 698, 701 (Mich 1985); People v. Blume, 443 Mich 476, 477, 505 N.W.2d 843, 844 (Mich. 1993)(extraterritorial jurisdiction over acts committed outside the state exist only for acts intended to and do have a detrimental effect within the state). The burden of demonstrating the territorial jurisdiction of the requesting state rests with the prosecution. Blume, 505 N.W.2d at p. 849. The Uniform Criminal Extradition Act’s language for permitting extradition for intentional activities committed outside of the requesting state but having a detrimental effect on the requesting state was derived from the Supreme Court’s opinion in Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911); see Newaygo Sheriff, 362 N.W.2d at 702.

Strassheim addressed the matter as one of the power of the state or within the state’s jurisdiction.

Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect if the state should succeed in getting him within its power.

Strassheim, 221 U.S. at 285. See also, Simpson v. State, 17 S.E. 984, 92 Ga. 41 (Ga. 1893)(discussing “jurisdiction” over acts that occurred outside of the charging state.)

A state does not have jurisdiction over an individual for a crime committed within that state when he was located outside the state, did not intend to commit a crime within the state, and could not reasonably foresee that his act would cause, aid or abet in the commission of a crime within that state.

State v. Palermo, 579 P.2d 718, 720 (Kan. 1978)(citing Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911). Territorial Jurisdiction is embodied in Article III Section 2 of the United States Constitution:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed…

It is also embedded in the Sixth Amendment to the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of

the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.

In the present case, Appellant offered evidence that the officer who signed the affidavit did not know what criminal actions were taken by the individual referenced in his affidavit:

What is it that you believe Mr. Rhodes did to commit the crime he's charged with?" [Officer Don Smith] Answer: "I can't advise you."

(RR Vol. 2 at p. 60). Testimony was also offered that Appellant was not in Iowa and that neither Appellant nor the individual referred to as Rhodes in the complaint fled the State of Iowa:

"All right. Do you have any information that he was fleeing the State of Iowa or fled here or was trying to avoid prosecution here?" Answer: "No."

(Id.). The affidavit in support of the complaint does not state an act done by the individual identified as Rhodes in Iowa, or any activity that a person could “reasonably foresee that his act would cause, aid or abet in the commission of a crime within that state.” Strassheim, 221 U.S. at 285.

The court erred when it determined it could not go beyond the bare allegations in the governor’s warrant to determine whether the Iowa court had *15 jurisdiction and whether Appellant committed an act “intentionally resulting in a crime” in the requesting state. (RR. Supp. at p. 4). Tex. Code Crim. P. Art. 51.13 Section 6. Accordingly, the evidence presented at the hearing fails to satisfy the requirements of the Texas Code of Criminal Procedure and the trial court erred in failing to grant habeas relief.

III. Identity Affidavit is Insufficient and the Failure to Allow Cross Examination Violates Confrontation and Due Process

The affidavit of identifying witness was signed by Robert Sand, the prosecuting attorney with the Iowa attorney general’s office. (RR. Supp. at p. 11). Sand stated, “I have looked at the booking photograph of Rhodes from when recently he was arrested in Fort Bend County, Texas, and the person in that photograph is the same Robert Rhodes that has been charged with 2 counts of Fraud in the State of Iowa.” (RR. Supp. at p. 11). The prosecutor from Iowa does not state that he that he has personal knowledge as to the identity of the Appellant, that he knows Appellant, has ever seen a photo of the Appellant in Iowa or that Appellant was ever identified in Iowa as being a party to the offense alleged. The prosecuting attorney simply ordered copies of photos and fingerprints from the Fort Bend County Texas Sheriff’s office and used those for “identification.” He fails to state *16 that he reviewed any documents or fingerprints related to the investigation in Iowa, or spoke with any witnesses from Iowa. In short, Sands concluded without basis in fact that Appellant was the person wanted for fraud in Iowa.

The Texas Court of Criminal Appeals has found identity affidavits based upon information and belief to be insufficient:

Now, the question is made as to this: First, that it was made on information and belief, and not directly predicated upon facts within the knowledge of the affiant, Robert L. Hubbard. An inspection of the paper shows such to be the case; that is, that the affidavit was made on information and belief only. We hold that this was not sufficient.

Ex parte Cheatham, 95 S.W. at 1080. The complaint and affidavit identifies Rhodes as a resident of Houston, Texas, or in other parts identifies a person or defendant named “Eddie Tipton.” (RR Supp. at p. 17). It is undisputed that Appellant has never been a resident of Houston, but has always resided in Sugar Land, Texas. At a minimum, the Confrontation Clause of the Sixth Amendment entitled Appellant to cross examine the Iowa Assistant Attorney General Sands about the basis of his statements, and for an explanation of the discrepancies. Crawford v. Washington, 541 U.S. 36, 68 (2004). Appellant was denied the opportunity to do so.

In determining the constitutional requirement for cross-examination, the Supreme Court stated:

The Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising.

We have no doubt that the courts below were acting in utmost good faith when they found reliability. The Framers, however, would not have been content to indulge this assumption. They knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys were not yet too distant a memory. They were loath to leave too much discretion in judicial hands. Cf. U.S. Const., Amdt. 6 (criminal jury trial); Amdt. 7 (civil jury trial); Ring v. Arizona, 536 U.S. 584, 611-612 (2002) (SCALIA, J., concurring). By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh's -- great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear. It is difficult to imagine Roberts' providing any meaningful protection in those circumstances.

****

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law -- as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior

opportunity for cross-examination.

Permitting and affidavit from a witness (Sands), who clearly lacks personal knowledge, on a showing that such testimony was inconsistent and conclusory violates Due Process and the right to confrontation. Crawford v. Washington, 541 U.S. 36, 68 (2004). Accordingly, the trial court erred by refusing to allow further examination or inquiry as to the basis of the witness’s knowledge. Further, because the affidavit of the identifying witness was insufficient to identify Appellant as the person wanted for a crime in the State of Iowa, the trial court erred in refusing to grant relief on Appellant’s writ of habeas corpus.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court reverse and render that Appellant’s writ of habeas corpus be granted, or *19 alternatively remand for a new trial and/or hearing, and for such other and further relief as is just.

Respectfully submitted,

/S/James D. Pierce James D. Pierce Texas Bar No. 15994500 1 Sugar Creek Center Suite 1080 Sugar Land, TX 77478 (713) 650-0150 jim@jamespierce.com

/S/David M. Medina David M. Medina SBN 00000088 5300 Memorial Drive, Suite 890 Houston, TX 77007 713-256-3969 davidmedina@justicedavidmedina.com

ATTORNEYS FOR APPELLANT, Robert Clark Rhodes

CERTIFICATE OF COMPLAINCE

This is to certify that the forgoing brief contains 5080 words as defined in Texas Rule of Appellate Procedure 9.4(i)(1).

/S/James D. Pierce James D Pierce

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing brief has been served on the below listed counsel of record this 28th day of October, 2015 through the Court’s Electronic Filing System.

/S/James D. Pierce James D. Pierce