Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/1/2015 10:32:00 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-15-00154-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS No. 06-15-00154-CR 11/25/2015 1:15:13 PM DEBBIE AUTREY CLERK IN THE COURT OF APPEALS FOR THE
SIXTH JUDICIAL DISTRICT OF TEXAS ARTIS LADELL WILLIAMS, Appellant VS.
THE STATE OF TEXAS, Appellee APPEALED FROM THE 71 ST DISTRICT COURT HARRISON COUNTY, TEXAS CAUSE NO. 15-0053X
APPELLEE’S BRIEF
COKE SOLOMON CRIMINAL DISTRICT ATTORNEY HARRISON COUNTY, TEXAS P.O. BOX 776 MARSHALL, TEXAS 75671 (903) 935-4840 BY: LAURA M. CARPENTER ASSISTANT CRIMINAL DISTRICT ATTORNEY BAR #08618050
ATTORNEY FOR APPELLEE Oral Argument is Not Requested *2 No. 06-15-00154-CR
ARTIS LADELL WILLIAMS, Appellant VS.
THE STATE OF TEXAS, Appellee __________________________________________ NAMES OF ALL PARTIES AND ATTORNEYS __________________________________________ The names and identifying information of all parties and attorneys were correctly stated in Appellant’s brief, except for the following name should include
Laura M. Carpenter as Appellate Attorney on behalf of the State of Texas:
Laura M. Carpenter
Appellate Attorney
Harrison County District Attorney’s Office
P.O. Box 776
Marshall, TX 75671
Telephone: 903-935-8408
Facsimile: 903-935-4836
laurac@co.harrison.tx.us
ii
TABLE OF CONTENTS NAMES OF ALL PARTIES AND ATTORNEYS ............................................................... ii
INDEX OF AUTHORITIES .............................................................................................. iv
CASES: ................................................................................................................ iv CODES, RULES, STATUTES: ............................................................................. iv STATEMENT OF THE CASE .......................................................................................... 1
STATE’S REPLY to ISSUE NUMBER ONE. ................................................................... 1
STATE’S REPLY to ISSUE NUMBER TWO. .................................................................. 1
GENERAL STATEMENT OF THE FACTS ...................................................................... 2
ARGUMENTS AND AUTHORITIES ................................................................................ 3
SUMMARY OF THE ARGUMENT to ISSUE NUMBER ONE ............................ 3-5 SUMMARY OF THE ARGUMENT to ISSUE NUMBER TWO .............................. 5 PRAYER ......................................................................................................................... 6
CERTIFICATE OF COMPLIANCE…………………………………………………………….6
CERTIFICATE OF SERVICE .......................................................................................... 6
iii *4 INDEX OF AUTHORITIES CASES:
Skinner v. State, 956 S.W.2d 532, 544 (Tex.Crim.App 1987)…………………….………4
Almanza v. State , 686 s.w.2D 157, 171 (Tex.Crim.App 1984)(opinion on reh’g).......….4
Rogers. v. State , 38 S.W.3d 725 (Tex. App.- Texarkana 2001, pet. ref’d)………………4
Ramos v. State , 831 S.W.2d 10, 17-18 (Tex-App- El Paso, 1992, pet ref’d)……………..4
Stewart v. State , 293 S.W.3d 853 (Tex.App.- Texarkana 2009)…………………………...5
.
CODES, RULES AND STATUTES:
Texas Code of Criminal Procedure Article 37.07(4)(c) .................................................. 3
.
iv *5
STATEMENT OF THE CASE Appellant, Artis Ladell Williams, was convicted for possession of methamphetamine and possession of cocaine after a plea of guilty in the 71 st Judicial
District Court in Harrison County, Texas. At the conclusion of the punishment phase,
the jury sentenced him to 10 years imprisonment for possession of methamphetamine
and 15 years imprisonment for possession of cocaine. The sentences are to run
concurrently. (CR154).
Appellant presents his appeal in two issues.
STATE’S REPLY to APPELLANT’ S ISSUE NO. 1 The trial court did not err in the manner of submission of the parole law charge in the punishment charge to the jury.
STATE’S REPLY TO APPELLANT’S ISSUE NO. 2 The trial court did err in assessing payment of court appointed counsel fees against the appellant, an indigent person.
GENERAL STATEMENT OF THE FACTS On February 26, 2015, Artis Ladell Williams was indicted for two count of possession of drugs. CR-8. Count I alleged possession of methamphetamine in an
amount of more than one gram but less than four grams, a third degree felony. Count
II alleged possession of cocaine in an amount more than four grams but less than 200
grams, a second degree felony.
On September 8, 2015, the trial started. After 2 ½ hours of testimony from two State witnesses, the defendant changed his plea of not guilty to guilty on both
counts. 6 RR 72-74.
On September 9, 2015, the trial for punishment began before the jury.
The State introduced Mr. Williams’ criminal history of te n misdemeanor offenses. 8 RR
SX 61-72. Six witnesses testified for the defendant in support of his application for
community supervision. The State in closing argument asked the jury to sentence the
defendant to 10 years and 15 years. 7 RR 105. The jury sent a note to the judge
during deliberations asking whether the sentences would run concurrently or
consecutively. CR-138. The trial court responded stating for the jury to determine the
sentence based on the law given and the facts presented. CR-139. The jury
assessed 10 years for possession of methamphetamine and 15 years for possession of
cocaine. CR 145-146
STATE’S REPLY to ISSUE NUMBER ONE The trial court did not err in the manner of submission of the parole law charge in the punishment charge to the jury.
SUMMARY OF THE ARGUMENT The trial court properly submitted the instruction on parole law per the statutory language of the Texas Code of Criminal Procedure Article 37.07(4)(c).
ARGUMENTS AND AUTHORITIES REPLY to ISSUE ONE The punishment charge given to the jury tracked the language as set forth in Texas Code of Criminal Procedure 37.07(4)(c) regarding parole law. CR-142. This statutory
language applies to second and third degree convictions. In this case, Count I involved
a third degree felony and Count II involved a second degree felony.
Appellant argues that the court erred in submitting one parole law instruction for the two counts, yet provides no case law or statute to support this argument. The
defendant made no objection to the charge. 7 RR 89. At no time in the case did the
State nor the defendant ever mention parole. 7 RR 93-105.
During jury deliberation, the foreman sent a note to the court asking if the sentences
would run concurrently or consecutively. CR-38. The trial court responded that the jury
is to determine the sentence based on the law given and the facts presented. CR-139,
7 RR 107. The defendant made no objection to the trial court’ s response.
Appellee agrees with Appellant’s argument that since Appellant did not object to the punishment charge nor to the judge’s response to the jury note, his appellate
complaint may be sustained only if he can show egregious harm, i.e., harm so great that
he was denied a fair and impartial trial. Skinner v. State , 956 S.W.2d532, 544
(Tex.Crim.App. 1997). Almanza v. State , 686 S.W. 2d 157, 171 (Tex.Crim.App. 1984)
(opinion on reh’g).
In determining whether egregious harm occurred, we review the error “in light of the entire jury charge, the state of the evidence, including the contested issues and weight
of probative evidence, the argument of counsel and any other relevant information
revealed by the record the trial as a whole.” Almanza , 686 S.W.2d at 171.
Appellant argues that based on the jury’s note that the jury was concerned with the application of the parole law. Appellant cites Rogers v. State , 38 S.W.3d 725 (Tex.App.-
Texarkana 2001, pet. ref’d) as supporting case law for application to this case. Rogers
is distinguishable because in that case the trial court did not provide the statutory
instruction on the application of parole in the charge. Further, after receiving a request
from the jury, the trial court gave a limited answer and still failed to provide the statutory
language.
Ramos v. State , 831 S.W.2d 10, 17-18 (Tex-App –El Paso, 1992, pet ref’d) held that where a defendant did not object to the absence of the parole instruction, if the jury
raises a question about parole law, the court is required to give a full and complete
response.) In this instance, the trial court referred the jury back to the charge which
stated the complete statutory language of Tex.Code Crim. Proc. Ann. Art 37.07 (4)(c).
In Stewart v. State , 293 S.W.3d 853 (Tex.App.- Texarkana 2009) the court set out four categories to review harm: on the entirety of the jury charge; the state of
evidence, the contested issues, and the weight of the probative evidence; on the
arguments made by counsel; and on any other relevant information by the record.
The jury charge in this case tracked the statutory language regarding parole application, including the standard curative language. The Defendant plead guilty to
the two counts and evidence was introduced regarding his ten misdemeanor offenses.
Neither the State nor the defendant ever mention parole in voir dire or in argument. The
jury’s note which may have indicated the jury’s interest in and consideration of parole
during its deliberations was responded to by the trial court in referring back to the
charge which, again, tracked the correct statutory parole instruction including the
standard curative language. The Appellant has failed to show any harm, much less
any egregious harm.
Appellant’s Issue Number One should be overruled.
STATE’S REPLY TO APPELLANT’S ISSUE TWO .Appellee agrees with Appellant that the trial court judgment should be modified to delete the assessment of court appointed counsel fees.
.
PRAYER The trial court having committed no reversible error as to Issue One, Appellee respectfully prays this Court affirm the judgment of the court below as to Issue One and
to modify the judgment to delete the assessment of court appointed counsel fees.
Respectfully Submitted Coke Solomon Criminal District Attorney Harrison County, Texas By: /s/ Laura M. Carpenter Laura M. Carpenter, Assistant District Attorney Bar Card #08618050 CERTIFICATE OF COMPLIANCE I hereby certify that this brief contains 1489 words according to the computer program used to prepare the document.
/s/ Laura M. Carpenter Laura M. Carpenter CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Appellee’s Brief has been faxed to the attorney for Appellant, Ebb Mobley, this 25th day of November, 2015,
by e-file.
/s/ Laura M. Carpenter Laura M. Carpenter