Case Information
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ORIGINAL
PD-1546-14 IN THE
RECEIVED IN COURT OF CRIMINAL APPEALS
JAN 082015
COURT OF CRIMINAL APPEALS
OF TEXAS
WILLIAM HAYWARDFREE MANSR. A P P E LANT /Petitionee vs. THE STATE OF TEXAS Appellee /Respondent
APPELLANTS PETITION FOR DISCRETIONARY REVIEW
IN APPEAL PD-1546-14 COURT OF C riminal Appaels OF TEXAS AT AUSTIN WILLIAM HAYWARD Freerw/St. Polunsky Unit # 1878813 3872 F.M. 350 South Livinyston, Texas 77357
FILED IN
COURT OF CRIMINAL APPEALS JAN 202015 Abel Acosta, Clerk
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TABLE OF CONTENTS
PAGE
INDEX OF AUTHORITIES ..... 1 STATEMENT REGARDING ORAL ARGUMENT 3,4,5 STATEMENT OF THE CASE ..... 6 STATEMENT OF PROCEDURAL HISTORY ..... 6 GROUNDS FOR REVIEW ..... 7 ARGUMENT ..... 8,9,10 PRAYER FOR RELIEF ..... 11 CERTIFICATE OF SERVICE ..... 11 APPENDIX .....
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INDEX OF AUTHORITIES
CASES PAGE Biggs v. state, 621 S.W. 2 d 282 (Tex. App. - Houston [1st, Dist.) 1945 pet. refd Criminal Law 1169.1 (9) ..... Brady V. Maryland Criminal Law 700 (2) Brady V. Maryland C.A.S (Tex) 1984 ..... 10 Fetteroif V. State, 782 S.W. 2 d 927,930 (Tex. - App. - Houston] [14th - Dist.] 1989 pet. refd. ..... 4 Harris V. state 740 S.W. 2 d 568 2)Criminal law 1166.18 ..... 9 OTHER SOURCES 38.07232 (6),(1),(C) ..... Art. 38.072, Sec 2(1)(3) ..... The gourt reporter. Uniform Manual. Chapter 52 ..... 9 T. R.A.P. 12,(A),(B),(C) ..... 9 T.R.A.P. 12.3 ..... 9 T.R.A.P. 12.4 (a),(b),(c),(d),(e),(f),(g)(h) ..... 9 T.R.A.P. 13.2 (a),(b),(1),(2),(3)(4),(5)(6),(G),(h) ..... 10
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PD-1546-14
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
WILLIAM HAYWARD FREEMAN, SR. Appellant/Petitioner vs
THE STATE OF TEXAS
Appellee /Respondent
APPELLANTS PETITIONFOR DISCRETIONARY REVIEW
TO THE COURT OF CRININAL APPEAL OF TEXAS: (Appellant/Petitioner respectfully submits this petition for Discretionary Review and moves that this Honorable Court grant review of this Cause and offer the following in support these of:)
STATEMENT REGARDING ORAL ARGUMENT (The Appellant/Petitioner requests Oralargunent in this case because such argument may assist the court in applying the facts to the issues raised. It is suggested that oral argument may help simplify the facts and clarify the issues.
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STATEMENT REGARDING ORAL ARGUMENT
In the 38.072 noticeafteridentifying Specific statements made for the first time at trial, Zounsel stated on the record that he was surprised by the Outcry witness testimony because her statements were significantly different from the summary provided pretrial (4RR45): the five factors to show harm against the appellant is these errors: 1) The source and nature of the error, was the improper admission of outcry witness hearsay testimony over defense Counsel's objection. The nature of the error was that trial, trial Counsel was effectively denied the opportunity to prepare a defense because the Circumstances durrounding the alleged assault changed in the middle of trial. Although its true that admission of hearsay evidence generally carries concerns that a defendant will be deprived of the opportunity to cross-examine the declarant, in this case the defendant was deprived of the opportunity to prepare a defensive theory, which he could later utitilize with cross examination, for this reason, this factor should fall on the appellants side of the ledger, See Biggs v. State 921 S.W. 2d 282 Tex. App. Hou. (1st. Dist.) 1995 pet. refd. Criminal Law 1169.1 (9), if defendant is able to show that he was surprised by states inadequate summary of child abuse victims hearsay statement violating procedural requirements, of statute which creates exception to hearsay rule for statements of child abuse victims, reversal would be required. Vernons Ann. Texas C.C. P. art. 038.07232 (6$1), (c), Rules App. proc. Rule 81 (8)(2). 2) The state emphasized the error, the next Consideration is whether the state emphasized the Outcry testimony in closing arguments. Here, the
*6 States closing argument emphasized Gbadamosis' testimony and urged jurors to C consider how Credible She appeared on the witness stand. (GRR35-36). "Did She appear to be angry and snaring the way some protective parents you may know are? She appeared to be quite frankly under the circumstances, pretty darn calm and pretty reasonable as she told you her story" (GRR36). In terms of her credibility, when she sat up there, and told you that, looking at this jury and telling you, she did not get hysterical. One tear rusing down her faces she told you what happened "(GRR36-37). Because the state emphasized the hearsay testimony of the Outcry witness in its closing argument, this issue supports a finding of harm. 3) There were Collateral Implications of the error of the hearsay testimony introduced at trial was the Court Next Cons ideration. As stated above, the Notice and Summary requirements are mandatory in order to avoid surprise at trial. Fe Herolf V. State, 792 S.W. 2d 927,930 (Tex.-App-Houston) [14th-Dist.] 1989 pet. ref (4). (purpose of the Notice and Summary requirements of article 38.072 are to prevent Surprise to defendant). Here appellant stated on the record he was surprised at trial by the additional facts that he had No actual Notice of before trial. There is nothing in the record to indicate the Gbadamosis testimony was Contained in the states' file or was other wise discoverable by appellant before trial. For all these reasons, this factor Weights in favor of finding harm. 4) The weight a jury would probably place on the error.
This Court also Considers the weight a juror would likely place on the error. In this
*7 Case, it is probable that jurors replied on odedamosis testimony because of the young age of the Complaint further, the Complaint provided different details about the alleged assault at trial that she remembered while on the stand. (4RR178-79). For these reasons it is likely the jury placed more weight on Gbadamosis Corroboration of the child Complaint, testimony and therefore this factor should also weight in face of a finding of harm. 5) STATE is likely to Report Error
Finally this Court must Consider whether finding the error harmless will encourage the state to repeat it with impunity. See Biggs Y. State, 9215. Wad at 282. In Biggs, this Court said: "ifadefendant, were able to show that he was surprised by the states inadequate Summary, reversal would be required "Id.
Appellant submits he has made that showing and therefore reversal should be required. That the state would repeat this Conduct in the future is made clear by its response to trial Counsels objection to the summary at trial. Because all factors fall in favor of appellants Contention that he was surprised by improper hearsay testimony of the outcry witness, appellant has shown harm, as stated above, the purpose of the Notice requirements is to prevent surprise. Appellant was sufficiently surprised by the introduction of new facts in to the case during trial that were not made part of the States pretrial Summary. Because appellant was not given adequate notice of the content and scope of the outcry testimony. He was unable to prepare a defense to the charges alleged and therefore was sufficiently Surprised for all these reasons. The judgement of Conviction enter below must be reversed and the cause remanded for a new trial.
*8 STATEMENT OF THE CASE
Appellant was charge by indictment with aggravated sexual assault of a child alleged to have been committed on September 5th 2011.
ON August 15th, 2013, the jury found Appellant guilty. The trial court found one enhance men' paragraph true and sentenced Appellant to, seventy-five years (55) in prison.
Notice of appeal, and the trial Court's Certification of appeal, were timely filed to Tex. R. App Plant's (a) now file's appellant's brief. Appellant was represented at trial by Mark Hochglaube, and is represented on appeal by Carmen M. Roe.
STATEMENT OF PROCEDURAL HISTORY
In cause NO. 1322259, the Appelate Petitioner was charged with the defense of aggravated sexual assault of a child. The appellant petitioner was convicted of such offense on August 15th 2013 and appealed the conviction. On October 30th 2014 the 14th court of appeals affirmed the conviction. On November 15th 1 filed a motion for extension of time. On November 8th 1 filed a motion for rehearing. I also file a supplement brief on Nov. 9th 2014. I received a (60) day extensions extended to Friday, January 30, 2015, I also received from the Courts, granting the appellant's Prose Motion to Suspend Rule 9.3(b) T.R.A.P. I have not heard from the courts on my rehearing motion.
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GROUNDS FOR REVIEW
I 38.072, Section 1, were made by the child against whom the of fense was allegedly Committed, Section 2 (3), the child testifies, or is available to testify at the proceeding in court
GROUNDS FOR REVIEW
II The Appellate clerk must docket each case according to T.R.A.P. rule 12.2, by using A) Number System B) Number Order C) Muttiply Notice of Appeal
T.R.A.P. 12.3' Custody of paper T.R.A.P. 12.4 (a),(b),(c),(d),(e),(f),(g), and (H). T.R.A.P. 13.2 (a), (b), (1),(2),(3),(4),(5),(6),(d), and (e).
*10 ARGUMENT NUMBER ONE
The trial court abused it discretion by admitting outcry witness testimony that fail to meet the mandatory requirements of Article 38.072 by injecting new facts into the case during trial and appellant was surprised.
The appellant meets all five factors to show harm consistent with this court's holding. Brizgs V. state, 921 S.W. 2d 282 (Tex. App.-Houston List. Dist.) 1995, pet. Criminal Law 1169.1 (9) if defendant is able to show that he was surprised by states inadequate summary of child abuse victim's hearsay statement violating procedural requirements of statute which creates exception to hearsay rule for statements of child abuse victims, reversal would be required.
The state did not include that she testified at first the complainant said nothing happen, nothing happened, nothing happened. That is not included. A notice of intention to use child abuse victim hearsay statement is in both of the courts files, according to this witness, is that the defendant touch her, that is not included. This witness said repeatedly in the outcry the defendant was telling the complainant you better not tell because thing are going to happen to you, that is not included in the outcry. That the complainant wanted to get out of the room. That is not included in the outcry. The defendant put his hands over the complainants mouth. That is not included in the outcry, and that the other sister came to the door, and that's when the defendant let her out, that was not included in the outcry.
The state is only required to give a summary. The trial court overruled defense Counsels objection. The state summary was not adequate to a pprise him of the essential facts of the hear say statements trial Counsel identified the following statements offered by Gbadamosi at trial that were not included.
*11 ARGUMENT NUMBER TWO
According to the code of professional Conduct, rules governing Court reporter certification a 'uniform' manual' approved by the supreme Court of Texas that governs the form of official reporters records and free lance transcriptions. A person may not engage in shorthand reporting in this state or be appointed and official court reporter or deputy court reporter unless that person is certified as a shorthand reporter by the Supreme Court of Texas. Official court reporters, deputy reporters, and substitute court reporter shall comply with Chapter 52, and applicable provisions of the Texas Rules of appellate procedure in the conduct of the business of their offices.
1) It is a unprofessional Conduct, failing to deliver a transcript or statement of facts to a client or court in a timely manner as determined by statute, Court order or agreement.
2) Producing an inaccurate transcript or statement of facts.
3) Producing incomplete transcript or statement of facts.
4) A.C.S.R. or C.R.F. shall be fair and impartial toward each participant in a legal proceeding. Harris V. State' 105.W. 2d 508, 2) Criminal Law 1166.13, Conviction must be reversed once defendant demons trade that he requested Court reporter to take notes of trial, or any part there of. It was demonstrated by not having any Court reporters records with facts. According to T.R.A.P. 12.2 The appellate clerk must do not each case by dochet numbers. (A) Number System
B) Numbering Order (C) multiple notices of appeal, also T.R.A.P. 12.3 Custody of papers, T.R.A.P. 12.4 with drawing papers (3),(6),(c),(d),(e),(f),(g), and (h)
*12 T.R.A.P 13.2 Addition duties of Court recorders (a),(b),(1),(2),(3),(4),(5),(6),(c),(d),(e).
According to there code of professional Conduct rule, if so, they would be in violation, soall is stated by facts that I did not have a pre-trial hearing by my presiding Juleg Jesusine Bart. Under the Brady v. Marylany Criminal Law 700(2.1) Constit utions) error is committed with regard to prosecutorial suppression of exculpatory evidence only when the omitted evidence creates a reasonable doubt that did not otherwise exist. C.A.S (Tex.) 1984 Brady requires that the government disclose material evidence e favorable to the defendant and suppression will result in a reversal.
*13 PRAYER FOR RELIEF
For the reasons stated above, it is respectfully submitted that the court of Criminal Appeals of Texas should grant this petition for Discretional Review.
Respectfully Submitted, William Hayward Freeman, Sr. Allen B. Polunsky Unit 3872 F.M. 350 South Livingston, Texas 77351
CERTIFICATE OF SERVICE
I, William Hayward Freeman, Sr. TDCJ # 1878813, the undersigned Appellant/Petitioner hereby certifies that at true and correct copy of the foregoing petition for Discretionary Review has been mailed, U.S. mail, postage prepaid at the Polunsky Unit maillay system to the office of, The Court of Criminal, Appeal Of Texas to Mr. Abel Acosta, clerk, P.O. Box 12308, Capitol station, Austin Texas 78711, also a copy to Lisa C. McMinn, state Prosecuting Attorney at P.O. Box 13046, Austin, Texas 78711, by First Class mail on December 31st 2014
William Hayward Freeman, Sr.
*14 APPEEDIX
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JUDGMENT
Court of Appeals
first Bistrict of Texas
NO. 01-13-00723-CR
WILLIAM HAYWARD FREEMAN, SR., Appellant V.
THE STATE OF TEXAS, Appellee Appeal from the 182nd District Court of Harris County. (Tr. Ct. No. 1322259).
This case is an appeal from the final judgment signed by the trial court on August 15, 2013. After submitting the case on the appellate record and the arguments properly raised by the parties, the Court holds that the trial court's judgment contains no reversible error. Accordingly, the Court affirms the trial court's judgment.
The Court orders that this decision be certified below for observance.
Judgment rendered October 30, 2014.
Panel consists of Chief Justice Radack and Justices Jennings and Keyes. Opinion delivered by Chief Justice Radack.
*16 cc: Clerk of the Court Fourteenth Court of Appeals 301 Fanin, Suite 245 Houston, TX 77002
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