Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 11/3/2015 10:40:02 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-15-00156-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 11/3/2015 10:40:02 AM DEBBIE AUTREY CLERK
NO. 06-15-00156-CR IN THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA, TEXAS NICHOLAS EDWARD AYERS, Appellant VS.
THE STATE OF TEXAS, Appel lee Appealed from the 276 [1] h Judicial District Court Marion County, Texas Trial Court Cause No. F14284 BRIEF OF APPELLANT Submitted by: James P. Finstrom Counsel for Appellant P.O. Box 276 Jefferson, Texas 75657 903-665-7111 Fax: 903-665-7167 State Bar #07038000 APPELLANT DOES REQUEST ORAL ARGUMENT *2 IDENTITY OF PARTIES AND COUNSEL Pursuant to T.R.A.P. 38.1(a) Appellant: Nicholas Edward Ayers
Institutional Division of Texas Department of Criminal Justice
Joe F. Gurney Unit
1835 FM 3328
Tennessee Colony, Texas 75803 Counsel for Appellant at trial:
Hon. Rick Berry
111 West Austin Street
Marshall, Texas 75670
Counsel for Appellant on appeal:
Hon. James P. Finstrom
P.O. Box 276
Jefferson, Texas 75657
State's Counsel at trial and on appeal:
Hon. Angela Smoak, County Attorney 102 West Austin Street
Jefferson, Texas 75657
Trial Judge:
Hon. Robert Rolston, Judge, 276 [1] h Judicial District Court Marion County, Texas
TABLE OF CONTENTS Pursuant to T.R.A.P. 38.1(b) Page 2 IDENTITY OF PARTIES AND COUNSEL 3
TABLE OF CONTENTS
INDEX OF AUTHORITIES 5
STATEMENT OF THE CASE 6 6
ISSUES PRESENTED
ISSUE NO. 1: THE STATE COMMITTED FUNDAMENTAL
ERROR BY MAKING A PUNISHMENT ARGUMENT OUTSIDE THE EVIDENCE.
ISSUE NO. 2: APPELLANT DID NOT RECEIVE EFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE COUNSEL DID NOT OBJECT TO THE STATE'S PUNISHMENT ARGUMENT WHICH WAS LARGELY OUTSIDE THE EVIDENCE.
STATEMENT OF FACTS 7 8
ISSUE NO. ONE (Restated)
IS THE STATE'S PUNISHMENT ARGUMENT OUTSIDE
THE EVIDENCE FUNDAMENTAL ERROR?
SUMMARY OF THE ARGUMENT 8
ARGUMENT 8
ISSUE NO. TWO (Restated) 10
DID APPELLANT RECEIVE EFFECTIVE ASSISTANCE OF
COUNSEL WHEN COUNSEL DID NOT OBJECT TO THE
ARGUMENT MADE THE BASIS OF ISSUE NO. ONE IN THIS
CASE?
SUMMARY OF THE ARGUMENT 10
ARGUMENT 10 11
PRAYER
CERTIFICATE OF SERVICE 12 13
CERTIFICATE OF COMPLIANCE *5 INDEX OF AUTHORITIES Pursuant to T.R.A.P. 38.1(c) Cases: Page
Johnson v. State, 233 S.W.3d 109
(Tex.App. Houston 14th Dist. 2007, no hist.) 9 Peak V. State, 57 S.W.3d 14 8
(Tex.App. Houston 14th Dist. 2001) Vaughn v. State 888 S.W.2d 62
(Tex.App. -- Houston 1st Dist. 1994, p.d.r. granted and affirmed, 931 S.W.2d 564 (Tex.Crim.App.
1996) 11 Washington v. State.16 S.W.3d 70 8
(Tex.App. Houston 1st Dist. 2000, p.d.r. ref'd.) Williams v. State, S.W.3d 11
2015 WL 5158449 (2015)
Wilson v. State, 938 S.W.2d 57 (Tex.Crim.App. 2002) 8, 9
Statutes:
Article 62.051(a), Code of Criminal Procedure 12
Other Materials: 8
Tex. Jur 3d, Criminal Procedure: Trial, Sec. 480 All references to Texas statutes, rules, etc. are to the latest edition published by West Publishing Company, unless otherwise
noted.
STATEMENT OF THE CASE Pursuant to T.R.A.P. 38.1(d) Appellant was tried in a bench trial on two cases of indecency with a child, being the instant case and Appellate Case Number 06-
15-00157-CR, on his plea of guilty to the indictment in each case.
Appellant's pleas of guilty in each case were entered on August 5,
2015. (2 RR 1-33) Evidence on the pleas was heard on August 27,
2015. (3 RR 1-58) The court found Appellant guilty on each case
and assessed an eighteen (18) year sentence in the Institutional
Division of the Texas Department of Criminal Justice on each case on
August 27, 2015 to run concurrently. (3 RR 65-66) Appellant gave
timely notice of appeal September 23, 2015. (CR 98) Counsel was
appointed to represent Appellant on appeal on September 21, 2015.
(RR 97)
ISSUES PRESENTED Pursuant to T.R.A.P. 38.1(e) ISSUE NO 1: IS THE STATE'S PUNISHMENT ARGUMENT
OUTSIDE THE EVIDENCE FUNDAMENTAL ERROR REQUIRING
REVERSAL OF APPELLANT'S CONVICTION?
ISSUE NO. 2: DID APPELLANT RECEIVE EFFECTIVE
ASSISTANCE OF COUNSEL WHEN COUNSEL DID NOT OBJECT
TO THE ARGUMENT MADE THE BASIS OF ISSUE NO. 1 IN THIS
CASE.
STATEMENT OF FACTS Pursuant to T. R.A. P. 38.1 (f) The State called seven witnesses and Appellant did not testify but called one witness.
Martha Dyles and Kimberly Lara testified to the predicate for the admission into evidence of a DVD in each of the two cases of the
Child Advocacy Center interview of the child named in each
indictment. (3 RR 8-13)
Lauren Whitehead, who was employed with the jail at the Marion County Sheriff's Department, testified that Appellant had
possession of contraband in his cell block during his confinement in
jail consisting of peach hooch which smelled like alcohol, a Tramadol
pill, paper clips which had been made into needles, and ear phones
with a yellow substance in them. (3 RR 14-16)
Vera Humphrey, Trelena Ives, Christi McWilliams, and Taylor Quinn McWilliams testified to the circumstances surrounding the
outcry by the child victim in each of the two cases. (3 RR 18-34)
Appellant called his step-father, Virgil T. Allen, who testified as a character witness for him.
ISSUE NO. ONE (Restated) IS THE STATE'S PUNISHMENT ARGUMENT OUTSIDE THE
EVIDENCE FUNDAMENTAL ERROR REQUIRING REVERSAL OF
APPELLANT'S CONVICTION?
SUMMARY OF THE ARGUMENT Pursuant to T. R.A. P. 38.1 (g) Counsel for the State made a very strong punishment conduct about matters outside the evidence and record in this cause which
should not be deemed harmless error and requires reversal of
Appellant's conviction.
ARGUMENT Pursuant to T.R.A.P. 38.1(h) Issue No. 1 Proper jury argument is delineated into four categories: (1) summation of the evidence; (2) reasonable deductions from the
evidence; (3) responsive arguments; and (4) pleas for law
enforcement. Tex. Jur 3d, Criminal Procedure: Trial Sec. 480.
Appellate courts should not hesitate to reverse when it appears that
the State has departed from one of these areas in argument and has
engaged in conduct calculated to deny the accused a fair and
impartial trial. Wilson v. State, 938 S.W.2d 57 (Tex.Crim.App. 2002);
Washington v. State.16 S.W.3d 70 (Tex.App. Houston 1st Dist. 2000,
p.d.r. ref'd.); Peak v. State, 57 S.W.3d 14 (Tex.App. Houston 14th
Dist. 2001 ). The test to consider whether improper argument
constitutes reversible error is whether the argument violates a statute;
injects new and harmful facts into the case; or is extreme or
manifestly improper, harmful, and prejudicial to the rights of the
accused. Wilson v. State, supra. The applicable standard of review
is whether, in light of the record as a whole, there is a reasonable
possibility that the improper argument was so prejudicial as to deprive
the defendant of a fair and impartial trial. Johnson v. State, 233
S.W.3d 109 (Tex.App. Houston 14 [1] h Dist. 2007, no hist.)
The State's argument in this case was almost entirely totally outside the record and based on a letter Appellant had written to the
Court which was not offered or admitted into evidence in this cause.
No objection was made to the argument, but it should be considered
as fundamental error because of the nature of the argument, referring
to Appellant as a person "who has an addiction to pornography" (3
CR 59), and that "he never says he's sorry" (3 CR 61 ), and "he tells
the Court that he didn't see a reaction from the children, so it must be
okay" (3 CR 60), and that "he even mentions my very own mother in
this letter to the Court." (3 CR 60). The harm can been seen in the
length of the sentence given Appellant by the Court. Appellant's
conviction should be reversed because the argument appears to
have been asking for serious punishment for matters outside the
record. The letter is in the clerk's record at CR36, because it was
filed by the Clerk although it was not admitted as evidence in the
case. The argument is a very strong argument and should not be
considered harmless error.
ISSUE NO. TWO (Restated) DID APPELLANT RECEIVE EFFECTIVE ASSISTANCE OF
COUNSEL WHEN COUNSEL DID NOT OBJECT TO THE
ARGUMENT MADE THE BASIS OF ISSUE NO. ONE IN THIS
CASE.
SUMMARY OF THE ARGUMENT Pursuant to T. R.A. P. 38.1 (g) Issue No. 2 Appellant's trial counsel did not object to the argument outside the evidence made the basis for the argument in Issue No. 1 and
Appellant did not receive effective assistance of counsel.
ARGUMENT Appellant's counsel at trial did not object to the State's argument made the basis of Issue No. 1 above. Appellant can
conceive of no trial strategy in this case that would justify trial
counsel's failure to object to the argument.
This Court recently dealt with the issue of fundamental or egregious error in a criminal trial and the failure of counsel to object
to the error in Williams v. State, S.W.3d , 2015 WL
5158449 (2015). In Williams, this Court held that an appellate court
will not reverse based on an unpreserved claim of charge error
unless the defendant suffered harm so egregious that he was denied
a fair and impartial trial because the error affected the very basis of
the case or deprived the defendant of a valuable right or vitally affect
a defensive theory. While the factual background of charge error
may differ from argument error, Appellant urges that the error
presented in his case affect the very basis of the punishment given
him by the trial court. Where trial counsel fails to object to the
State's argument, Appellant urges that it is clear that the trial court
would have committed error in refusing to sustain an objection to the
argument that is clearly outside the record and prejudicial to
Appellant. See Vaughn v. State 888 S.W.2d 62 (Tex.App. -- Houston
1 [51] Dist. 1994, p.d.r. granted and affirmed, 931 S.W.2d 564 (1996)
PRAYER Upon the issues presented, Appellant, Nicholas Edward Ayers prays that this Court reverse the judgment of the trial court and
remand the case to the trial court for a new punishment hearing, and
for such other and further relief to which he may be entitled.
Respectfully submitted, ls/James P. Finstrom James P. Finstrom Counsel for Appellant 202 S. Marshall, P.O. Box 276 Jefferson, Texas 75657 903-665-7111 Fax: 903-665-7167 Texas Bar #07038000 CERTIFICATE OF SERVICE I certify that I have delivered a true copy of this brief to Hon.
Angela Smoak, counsel for the State, and to Appellant by United
States mail, first class postage prepaid, at the Joe F. Gurney Unit,
1385 FM 3328, Tennessee Colony, Texas 75803, on this 3rd day of
November, 2015.
ls/James P. Finstrom James P. Finstrom *13 CERTIFICATE OF COMPLIANCE I certify that Appellant's Brief filed electronically on this 3rd day of November, 2015 complies with Tex. R. App. P. 9.4(i)(2)(B). This
Brief contains 1, 731 words.
/s/ James P. Finstrom James P. Finstrom