. de … ac 1|5 m °` 9 196 STATEMENT 0F THE cASE "fe)A ei<, p‘£;{as DmbnpRLl%in h§%s tried before a Judge and where he was found guilty of indecency with a child by sexual contact, and Sentenced to Seven years in the Texas Department of Criminal Justice- Institutional iDiviSion. Appellant challenges the Judges findings, alleging Fi§at DIN they were in error, and that he is actually innocent of &hékamcn&@%ems S'Xth Distn`ct N°V.3 0 2015 offense, 7éXar 3 ~. isSUEs PRESENTED 19 9@@% K}§§F P?§@ _ ' f'°€¥, @liank 11 .Whébher the Judge erred .in considering dates not listed on the indictment, thus not giving Appellant notice of the allegation that the State intends to prosecute against him so that he can pre- pare a proper defense. 2. Whether the Judge erred in finding part of the witness testimony true, and another part untrue. 3. -Whether the Judge should have required the victim (accuser) to be evaluated by a professional for a competent Screening. 4_ .Actual lnnocence claim by Appellant. STATEMENT:OF FACTS On Sepetember 30, 2013 Appellant was arrested by the Rusk County , §ans Sheriff' s on a warrent from Gregg County,Texas for indencency with a child by sexual contact that was to have occured on September 29, 2012. The same day he was transfered to the Gregg County jail, where he remained until trial. v Prior to Appellant's arrest the Gregg CountyGrand Jury issued a true bill indictment against him on the 8th day of August. 2013, alleging that he committed indecency with a child by sexual contact `against Jane Doe 07192003, that occured on the 29th day of September, 2012. l _On the 9th day of January, 2014 the district attorney filed two motions for Notice of Intent to use Hearsay Statement of a Child Abuse Victim, summonsing Brian Splawn, the victimls father, and Kelli Faussett, Child.Advocacy Service advocate to testify to EXACTLY what the victim told them. The Motions were granted the same day. \September 26, 2014 Appellant was taken to Court for a Waiver of Jury Trial. Trial was set for December 1,2014. v OH December 1, 2014 all parties appeared and anounced ready. The witnesses, were sworn in and the trial began on that day. The first witness to take the stand was Erin Splawn, the victim. The second witness was Faith Splawn, the victim's sister. The third witness was Brian Splawn, the victim's father. The fourth was Jason Romine, the Kilgore police officer who took the complaint. The fifth was Barbara Tidwell, Appellant's sister. The sixth was Kay Lynn Newbill; Detective for the Kilgore Police Department, who refered the case to child protective services and the child advocacy service. 4 7 The seventh was Bobby Clark.Jr. Appellant. who testified that he is innocent. The eighth was Reshonda Clark, who is Appellant's daughter. The Judge finds Appellant guilty specifying that the victim gave creditable testimony, and never gave a specific date, and that he- does not believe the date is the controlling isuue, but had the victim gave a specific date that may have gave the Court more concern. The punishment phase is set for the 21st day of 2015. Appellant was sentenced to 7 years in the Texas Department of Criminal Justice and Ordered to register as a Sex offender. Appellant was given permission to appeal. Appellant requested an extension after his Court appointed appeals counsel filed an Anders Brief. Permission was granted, giving him until November 17, 2015. SUMMARY OF THE ARGUMENT The Trial Judge erred in alleging that the date as stated in the indictment was not a controlling issue,and of little importance to the merits of the prosecution of the case. Every element alleged in an indictment must be proven, and every element alleged is exactly what is given as notice to an accused person prior to any trial, so that the person may attempt to locate witnesses and any evidence to help with his defense{ To give notice to Appellant about what evidence is to be used against him, then change the allegation AFTER trial begins is clearly a denial of proper notice, and a violation of due process of law. lt was not discretionary for the Trial Judge to decide if a witness testified truthfully in one party yet gave untrue (unreliable) testimony in another part, when in fact both parts represent key elements of the Off€HS€ and mUSt COrr©borate the other to find guilt. Meaning one part can not be proven without the .Other, when the witness was the person who filed the police report alleging THE both parts are true, and this same evidence was used to seek the indictment and sustain the conv- iction in the matter. Because of the serious nature of the offense, and the child's age of 9 years old, it is questionable as to why the Trial Judge failed to have the child examined by a trained professional, whose an expert in determining the competency of a child under the age of 13, and whether the child has a history of delusional daydreams, or fabricates stories for attention and sympathy. When the allegation against an adult has been made by a child for some type of sexual misconduct,although there need be no corrob- ation but the child's allegation, there still must be some evidence to sustain a conviction, and not just the assumption of what the child thinks is a sexual violation against her. For this same child to spec- ulate what she think was inappropriate, while at the same time giving unreliable time accounts of the incident in question, just because she does not like the person, is not enough evidence to convict. ~ARGUMENT & AUTHORITIES ISSUE'ONE: Appellant was given notice that he is being accused of indecency with a child by sexual contact that occured on September 29, 2012. On December 1, 2014 Appellant appeared in Court ready for trial, except he had with him proof that there is no way he committed the offense because he was in the hospital, and that was his affirmative defense, a secured alibi. He needed not prepare any futher, because 4 he had met his burden of innocence to the allegations as stated in the indictment. When the prosecutor discovered that Appellant was in the hospital, and there was no way he could have committed the crime, she began argu- ing that the date in the indictment was irrelevant and did not matter, that all she needed to prove was that the crime was committed before indictment and before prosecution was barred by limitations. Alleging that_the date in the indictment has no merit to the claim, and it did not matter that Appellant was given that date in preparation to defend himself. The Courts are bound by law, and have no authority to vaguely abuse nondiscretionary matters, as stated in Art. 21.02.(6), Tx.C.C.P.. See:TMiréles.V. State, 901 S.W. 2d 458,465 (Tex. Crim. App. 1995).... LTjhe.qughgzdm@ination of lawyers and Judges has come to embrace the myth that pleading 'on or about' magically avoids the necessity of proving a specific date. But no such incantation [isj necessary. Plead- ing that an offense was committed 'on' a particular date will perform ithe same magic". The Texas Legislature never intended for such an abuse of discret- ion by a prosecutor. A prosecutor can not give notice of one particular date, then merely disregard proper notice by stating a new date , then allege no harm done. This making any requirement for notice obsolete. Why even put a date if the date is optional? Because the accused must be able to adequately prepare a defense against the allegation(s). September 29, 2012 was clearly the date alleged on the indictment , and that was the date Appellant prepared his defense around. On direct examination of Jason Romine, a Kilgore police officer; who took the complaint of Brian Splawn, confirmed that the allegation was to have occured on September 29, 2012, Vol.3,pg.56, at15-21, and vthis:.<€l~a'd::e was written in his police report, Vol.3, pg.57, at 3-7, and again confirms the date, Vol. 3, pg.58, at 2-7. v After the prosecutor told Brian Splawn, the State's key witness, that there's no way Appellant could have committed the offense on September 29, 2012 because he was in the hospital, Mr. Splawn changed the date to September 22,2012, while testifying on the witness stand, and gave an affirmative "YES!" to the new date as being the date, Vol. 3, pg.54, at 5-10. d Although Appellant was not given notice of September 22,2012 as the new date of offense, he was still able to prove that he was not at the residence at the time the victim said the offense occured against her. This is Supported by the State'$ witness;ssabbaraliidwell. Barbara Tidwell not only confirmed that not only was it impossible rfor appellant to have been at her residence