Choice, Willie Edward

1q Jf:{q_._06
RECE\VED 1N
The Court of Criminal COURT OF CRIMINAL APPEALS
Appeals of Texas
P.O. Box 12308 Capitol Station
Austin, TX 78711 JAN 09 2015
Dear Mr. Abel Acosta, Clerk Abel Acosta, Clerk

I have enclosed a motion, rebuttal, and exhibits to recall facts
in the post conviction proceeding cause no. 1284277-B. Please file
and present these documents to the Honorable Judge of this court.
Thank you.
bmitted

/Z
 CAUSE NUMBER 1 2.8 4 2 7 7- B .

WILLIE EDWARD CHOICE § IN THE COURT OF
§
vs § CRIMINAL
§
THE STATE OF TEXAS § APPEALS OF TEXAS
§

TO TKE HONORABCE JUDGE OF THE COURT OF CRIMINA~ APPEA0S:

Come now Willie Edward Choice pro se applicant, would like to

inform the court after December 2, 2014 the clerk of the 176th

District Court of Harris County Texas mail the forwarding copy

of the trial courts finding of facts to the Garza unit Beeville

Texas address where I am not retained cause a delay. Thereby

inconvenience of the clerks error and due to the holidays I

respectfully ask this court to review the enclosed filed copies,

motion, rebttal and exhibit, (proof of the facts) in the case.

Respectfully Submitted

~ ' I
. :

CAUSE NO. 1284277-8
WILLIE EDWARD CHOICE § IN THE COURT OF CRIMINAL
§
vs § APPEALS
§
STATE OF .TEXAS § AUSTIN TEXAS
§

Motion to object to the trial court finding of facts and
conclusion of law.

TO THE HONORABLE JUDGE OF SAID COURT:
Comes now applicant Willie Edward Choice before this court in this

motion and object to the trial courts conclusion of law on the
. .l
~allowing in the States application page 3 at 16 alleged the app-

licant was not placed in jeopardy twice for same offense. See

State wrif exhibit B and C indictment. In the probable cause rep~

art taken by affiant Jackie Blanchard during the forenic interview

of the complaintant Datavia M. Evangelista third paragraph under

probable cause. The complainant alleged on or about October 20,

2010 at 1006 Carolyn Ct., Humble Texas the offense supposedly

occurred against her. The affiant Jackie Blanchard appeared be-

fore the assistant district attorney of Harris county Texas and

stated under oath that Willie Edward Choice the defendant alleg-

edly committed the offfense against the child on or about March

17, 2010 inconstant with the childs statement in the report. In.
the second paragraph in the probable cause report the affiant

interviewed the sister Davonqria Evangelista that stated during

the interview alleged the offense committed against her on M9rch

17, 2010 however the affiant Jackie Blanchard stated under oath
that the offense allegedly occurred against the child Davondria

Evanglista on. or about October 20, 2010 inconstant with the re-

port~i This error violates the applicants right to due process of
.. ~ law, U.S. Constitution fourteenth and fifth Amendment.

However, both girls testified in the fir$t trial cause no. 1284276

litigating their claim against the applicant therein was found

not guilty and acquitted of the offense alleged. The State was

barred from relitigating the s3me issues in a second trial.

Applicant believe that because of the affiant error to due process

of l~w both indictments should have been "Squashed", Applicants

trial counsel was on a fully probated suspension and was not

eligible to practice law in the state of Texas deceitfully ~ook

the case. Under the circumstances did not challenge the State

prosecutor or made any attempt to prevent a second prosecution.

Violated double jeopardy U.S. Canst. 5th Amendment. (see) doc-

ument from the State bar of Texas. Applicant pray that the Court

of Criminal Appeal will act accordingly as justice require.
 CAUSE NUMBER 1284277-8

WI~~IE EDWARD CHOICE § IN THE 176TH DISTRICT COURT
§
vs § OF
§
THE STATE OF TEXAS § HARRIS COUNTY TEXAS
§

REBUTTA~

TO THE HONORAB~E JUDGE OF TH£ COURT OF CRIM~NAL APPEA~S OF TEXAS:

Comes now the applicant Willie Edward Choice before this Court,

and files this rebuttal to the above cou.rt finding of facts and

conclusion of law and recommendation. The applicant filed a motion

for a evidentiary hearing Sept. 18, 2014 and no response from the

trial court. (citing) Perillo v. Johnson 79 F3 441 5th Cir 1996

at 446,447. Therefore t~e applicant offer this proof in the re-

cords and portions of.the writ 11.07 that points out facts not

considered by the trial court and my trial counsel. The applicant
I

pray that the court of criminal appeals review these facts off-

ered in my behalf to prevent a unfair judgement. (Cite) Saline v.

United States 709 F2d 160 2d cir 1983 at 168-69 and a miscarrage

of justice.
 IN THE COURT OF CRIMINAL APPEALS

The Applicant's Response to the Trial Court's Findings of Facts

and Conclusions of Law (State's Writ Page 5)

The Trial Court alleges the Applicant receivec'btotality of representation

sufficient to protect his rights to reasonably effective assistance of tri~l

counsel.

Applicant's Response: Applicants Writ 6 Memorandum of Law Ground One page 5

Trial Counsel Mr. Osborne sh::>Uld have cross-examined the State's witness,

"Complainant Davondria Evangelista" from a prior~ trial with her sister- Datavia

Evangelisi:a in which the Applicant was acquitted. There was no logical reason

for counsel Mr. Osborne not to examine .3. critical witness as a ccitical stage·

of the trial. While the same issues were being relitigated was Constittitional

Error. United States v Cronic,,1466 U.S. at 659 (See Exhibit Al through 5 at

A5-23)

Issue 2. Mr. Osborn·~ did not object to the Court's jury charge at the guilt/

innocence phase of the trial or at the punishment phase of t~ial, which was

limitecl to "egregious" "error''. [see exhibit B]

Issue 3. Improper argument during voir dire and :::losing argument.

Appl._icant's Response: Pr-osecutor stated the Applicant confessed to the crime,

and that the Applicant lied on i:he witness stand. (See Exhibit C) Prosecutor

c'luring voir dire insinuated no one lies abo1Ji: sexual abuse was improper.

(Exhibit C2 at 19) "Misleaoing the Jury''

Issue 4: The Court alleged the Applicant must pcJVe harm of a venire par1el

shuffled outside th·~ App 1 icant' s presen:::e.

1
.!\pp1icant's Response: The shuffle was verbal by Tdal Counsel Mr. Osborne and

is unconst i tut iona l and no harm is nec?o of showing. Tex. Code Crim. Proc. art.

35.11 Scott v State, 805 s.w. 2o 612, 614 (Tex. app.- Austin 1991)

Issue 5: The Court finds that the applicant did not object to Dr. Thompson's

testimony at trial or raise the issue on appeal.

Applicant's Response: Dr. Thompson did not me:?t the criteria of Tex. Code

Crim. Proc. Evio. R~le 703. This is a Constitutional violation of the Applicant's
right to due process of l:~.·,v. Dr. Thompson had no data in the case are bas<~ on

an opinion of the facts in the case or had ever met the chilo Datavia Evangilista

while the State and the outcry witness Sadyia Evangilista was asserting mis-

leading the jury tha~ the child was being treated at the center where his is

overseer. [$.?e exhibit El through 3] who never met the chj_ld. The Applicant was

deprived of rGasonable effective protection of Trial Counsel and Appelant Counel

not to raise an obvious fact..see Exparte Gardner 9'59 S.W.2d at 201

Issue 6: The Court alleged Blanchard Wds not inconsistent from ]1er probable

cause affidavit in her testimony at trial.

Applicant'~ Response: See state's writ (Exhibits D and E) Blanchard was very

inconsistent in her testimony . . Blanchard stated in her report to the District

Attorney that Dat~via. Evangelista alleged the offense supposedly occurred

againt>t her on or about March 17, 2010: under Prob:~.ble Cause, Blanchard state's

that in a interview the report allege() the child Datavia stated on or about

October 20, 2010 was stat·~d by the complainant, a violation of due process of

law to state date not alleged by complainant. Blanchard in the affidavit report

state's the Applicant denied inserting his Einger inside their vaginas. (see

Exhib.it Dl) The record shows Bl.=mchard testified at trial the Applicant had

admitted to sticking his finger inside of the child's vagina inconsistent with

2
her report. [see Exhibit D2, D3] Therefore the State prosecuted the Applicant

on both girls testimony in the first trial.

Issue 7: ~he Court seeks proof of suppression of evidence in the record.

Applicant's Response: The State filed a Motion Inlime to exc1ude that Datavia

Evangelista had testified in the first trial where the Applicant was acquitted

of poth girls testimony's which vilated his Fifth Amendment rights. Testimony

is evi·'lence. (see Exhibit F) copy of the Motion Inlime limited my defense

violated Tex. Code Crim. Proc. art 2.01 "They shall not suppre~1s facts" and

violated U.S. Const. Fourteenth Amend. right to due process of law.

Issue 8: The State alleges the Applicant was not placed in jeopardy twice for

the same offense. (see State's writ Exhibit B and C indictments)

Applicant's Response: The State prosecuted .the Applicant in the first tdal

wherein "both cor:lplainant Is II testified under offense report number 0/R No"

10005703 Humble PD alleging the statement's the affiant observed in the for-

ensic interview. The Applicant was found Not Guilty and Acquitted. The State

used the same offense 0/R number No. 10005703 to reprosecute the Applicant

using the same alleged v.-i..ctims ·from the first trial. Jeopardy attached to all

the evidence offered at the first trial.

CONCLUSION OF LAW

Applicant prays the Court of Criminal Appedls finds:

l. Applicant's Trial Couns<~l was not effective.

2. Applicant was placed twice in jeopardy for the same offense.

3. Applicant's dght to due process of law was violat:=d.

4. Dismiss the charges.

3
 51

1 Please call your next.

2 MS. BYROM: The State calls Davondria Evangelista.,

3 THE COURT: You may proceed.

4 MS. BYROM: May it please the Court. Actually, your

5 Honor, if you don't mind I'm going to move up here.

6 THE COURT: That's fine.

7 DAVONDRIA EVANGELIST]\, 1

8 having been duly sworn, testified as follows:

9 DIRECT EXAMINATION

10 BY MS. BYROM:

11 Q. Good afternoon, Davondria. Could you please

12 introduce yourself to the ladies and gentlemen of the jury by

13 telling them' your name.

14 A. My name is Davondria Evangelista.

15 Q. Okay. Now, Davondria, you're going to have to speak

16 a little bit closer into the microphone, okay?

17 A. Yes.

18 Q. Can you say testing one two three?

19 A. Testing one two three.

20 MS. BYROM: Can you hear?

21 A JUROR: Uh-huh.

22 Q. (By Ms. Byrom) It's real important that you speak up

23 so that way everyone can hear you, okay?

24 A. Yes, ma'am.

25 Q. Okay. Davondria, how old are you?
'··

1 restaurant in October of 2010?

2 A. Yes, ma'am.

3 Q. Who was there with you that da,y?

4 THE COURT: I'm sorry, ladies and gentlemen, can

5 you-all excuse us for just a minute. Take the jury out for
U.$ .. C..orJS+~ s.f-47 I~ ~f""le~d,
6 J. ust a minute. v·leo\0..+-l:o....,
7 (Jury out.)

8 THE COURT: Be seated.

9 I'm sorry, you're just making me real real nervou~

10 from the time that you called her, so

11 MS. BYROM: It's okay.
.'
12 .I ·THE COURT: Deja vu all over again.
./,. . '.

13 MS. BYROM: I'll give you a proffer as to what I : ...

14 anticipate. Essentially I anticipate her just discussing what

15 she observed happening there at the restaurant that day with

16 her sister, and how the police were contacted, and then we'll

17 be done with her. Just so the jury will understand that how

18 the police got involved in the first place.

19 THE COURT: Okay.

20 MS. BYROM: And that's it. It really won't be very

21 much longer.

22 THE COURT: She knows all that.
·.·•

(0 MS. BYROM: ~ 've spoke!), t£.J1er a_b_qgt not ta~g
c:3) abo..:::~~ything_ involving herself and Mr:..! Choic·e. We're not

25 _g,oing_to 2 cover any of that. Don't worry, it's just going to be

.])e)a... vu; en v-teb5·!e.r's dt-ch6.neu-v=, cdr-ectd'-f seen, the
or
'1/ IUS It) 11 ha.'t~Vli p;-e.\(/ cu s I '1 Q,.)(.re .- t ced
\':..f)
 '•
54

1 Q. Louder?

2 A. Yes, ma'am.

3 Q. And what about. Rachel, how old is Rachel?

4 A. Four.

5 Q. Okay. And who is Rachel's father?

6 A. Mr. Will.

7 Q. Who?

8 A. Mr. Will.

9 Q. And what is Mr. Will's full name?

10 A. Uh, Willie Choice.

11 Q. Okay. How do you know Mr. Will?

12 A. Because I used to stay with him a long time ago.

13 Q. You got to speak a little bit louder, okay,

14 Davondria?

15 A. I used to stay ~th h~.

16 Q. Okay. And when you used to stay with Mr. Will, where

17 would you stay with him, do you remember the street name?

18 A. Uh, not really. I think it was Caroline something.

19 Q. And was that in do you remember the city that that

20 was in?

21 A. Yes, ma'am.

22 Q. What city was that in?

23 A. Humble.

24 Q. Okay. That was here in Humble in Texas?

25 A. Yes, ma'am.

l_
 55

1 Q. Okay, good.

2 Did anyone live with you at the house with Mr. Will

3 besides your sister Datavia and your sister Rachel?

4 A. Yes, rna' ai14

5 Q. Who else lived there with you?

6 A. My mom, and Caleb, and Benjamin, my step-brothers.

7 Q. Who is Caleb?

8 A. He -- was my step-brother.

9 Q. And how old is he?

10 A. I don't know how old he is right now.

11 Q. Is he a big kid or a little kid?

12 A. He's about in the middle, like seven, eight.

13 Q. Okay. And what about your -- the other -- Benjamin,

14 how old was he?

15 A. Uh, I think he was about 15.

16 Q. Okay~ Where do you live now? Do you live with your

17 mom and Mr. Will now?

18 A. No, rna' am.

19 Q. Who do you live with now?

20 A. I live with my aunt.

21 Q. And what is her name?

22 A. Sadiyah Evangelista.

23 Q. And how long have you lived with her?

24 A. About a year and a half now.

2'5 Q. Okay. And who else lives there besides you and your
 62

1 January 28th.

2 Q. Okay. Okay. I want you to take a moment and look

3 around the room, Davondria. Do you see the person in the room

4 that you call Mr. Will?

5 A. Yes, ma'am.

6 Q. Could you please point to him and kind of describe

7 where he's sitting?

8 A. Right there. He's sitting by Ms. Becky.

9 Q. Okay. And what is he wearing?

10 A. He's wearing a black su~t.

11 Q. Okay. Does he have on a tie or glasses or anything

12 like that?

13 A. Yes, ma'am.

14 Q. What else is he wearing besides a suit?

15 A. He's wearing a tie, glasses.

16 Q. Okay.

17 MS. BYROM: May the record reflect that she's

18 identified the defendant.

19 THE COURT: The record will reflect.

20 MS. BYROM: Thank you.

21 And I will pass this witness.

22 THE COURT: All right. Mr. Osborne.

23 MR. OSBORNE: I have no questions.

24 THE COURT: All right. May she be excused?

25 MS. BYROM: Yes, your Honor.
r Because there was no evidence before the jury that

r appellant had been charged with the sexual assault of the

r complainant's sister,

not relevant to the
evidence of appellant's acquittal was

issue of the proper punishment to be

r assessed in the case being tried.

r 7. Instructions to the Jury: Appellant did not

the Court's jury charge at the guilt/innocence phase of trial,
object_~g

r or at the punishment phase of trial. (R.R. 6, 52, 72; R.R. 7,

r 41-42) . Defense counsel's affirmative

objections to the charge," waived any error because it leads
statements, "no

r the trial court to believe it is giving a charge to which the

r defendant has no objection. Coleman v.

(Tex.App. Houston Dist~] 2001,
State, 45 S.W.3d 175

pet. ref'd). Absent an
r
[1st

objection to the charge, review is limited to "egregious

r error" which is error that goes to the very basis of the case,

r deprives the defendant of a valuable right, or vitally affects

the defense. Texas Code of Criminal Procedure, Art. 36.19;

r Almanza v. State, 686 S.W.2d 157, 172 (Tex.Crim.App. 1985).

r trial
The application paragraph at the guilt innocence stage of

correctly defined the elements of the offense of

r aggravated sexual abuse of a child and authorized a conviction

r only if the alleged elements had been proven beyond a

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47 c .t
1 after consulting with his attorney, but I just want you to

2 remember what we discussed during voir dire, that the

3 presumption of innocence is not the presumption of credibility.

4 And you can consider any bias or motive that that man would

5 have to lie up there on the stand.

6 And you know that he did at some point in time,

7 because even though he confessed to the crime, and he's telling

8 something different now, he claims he was telling the truth on

9 both occasions. And you know that's not possible. This is a

10 man that's willing to say.whatever it takes to keep himself out

11 of trouble.

12 What should you be considering at this point in time?

13 Well, I submit to you there are four factors that you should

14 consider as part of your deliberation and what appropriate

15 punishment is in this case. First of all, I'll go ahead and

16 say it, mitigation. What has he done that's good in his life?

17 Consider that.

18 Two, future danger to society, is this person a

19 threat? Three, the seriousness of the crime itself. And four,

20 the lasting effect that that man's crime had on Datavia

21 Evangelista. So let's go through and talk about each and every

22 one of those things.

23 Mitigation, we haven't heard much about what he's

24 done that's good in his life. Sure, you heard that he stayed

25 out of trouble, that he hasn't been convicted of a felony or a
 75

1 MS. BYROM: Okay. So would you agree with me that

2 children typically lie to get out of trouble, rather than to

3 get themselves into trouble?

4 VENIREPERSON: Oh, yeah.

5 MS. BYROM: Oh, yeah. Does that sound familiar to

6 everyone?

7 Okay. Now, this next part, it's audience

8 participation section. Raise your hand if you ever told a lie

9 in yoi..lr entire life, including when you were a child.

10 (Hands raised.)

11 MS. BYROM: And your hand should be up because if

12 your hand isn't up now, then you're lying now, because

13 everyone's told some little fib at some point in time. No,

14 mom, I didn't eat the last cookie. Now, keep 'em up.

15 THE COURT: There's one guy there that's never told a

16 lie. IMf't-ef'~ Jl-t-·y'-V·1e.Vlt (see ~ ..( )
17 MS. BYROM:
'We.'=>v-Mp~~-t>lf t>~ ~re.dn;;\·llt"\ +-h~
It's up now. C..~t-tpi~M.,u..a,·\· will ~OT
·
Lie
18 Okay. Now, keep your hand up if you lied and told

19 someone that you were sexually abused when you really were not.
J

20 Not a single hand, okay. 'IY1 Pt-{) r~ !J.-rrrn ~ ( s ~e. vJt-,f p~~
21 All right. Juror No. -- I think we covered this down

22 here. Let me go over here. I told you it was like a tennis

23 match.

24 Juror No. 15, what are your expectations for a child

25 witness? What do you think that they'll sound like or look

e.o.l .Pro .se.
 ' .'

AFFIANT WAS ADVISED BY THE DEFENDANT 1HATHE DID NOT TOUCH COMPLAINANT DAVONDRIA EVANGELISTA'S
BREAST EXCEPT WHEN HE ACCIDENTALLY ELBOWED HER IN THE BREAST. THE DEFENDANT DENIED EVER INSERTING
IDS FINGER INTO ErmER COMPLAINANT'S VA GINA (FEMALE SEXUAL ORGAN). THE DEFENDANT AGREED TO TAKE A
POLYGRAPH EXAMINATION AND SHOWED EXTREME DECEPTION ON THE TEST. THE DEFENDANT REQUESTED TO SPEAK
TO THE AFFIANT AFTER THE POLYGRAPH AND CONFESSED. THE DEFENDANT SAID TIIATHE HAD RUBBED ON THE
COMPLAINANTS VAGINA ON THE OUTSIDE, BVf DENIED INSERTING IDS FINGER INSIDE THEIR. VAGINA'S. Tiffi
DEFENDANT STATED TIIATHE DID GRAB AND SQUEEZE COMPLAINANT DAVONDRIA EVANGELISTA'S BREASTS AND
TOLD HER THAT TiiEY WERE GETI1NG BIG, BUT DENIED TIIAT TinS WAS FOR A SEXUAL REASON. TilE DEFENDANT
111EN ADMIITED TO RUBBING ON BOTH COMPLAINANTS' BREASTS. THE DEFENDANT TIIEN STATED TIIATHE WAS JUST
ADMIITING TO WHAT THE COMPLAINANTS ALLEGATIONS WERE BECAUSE HE THOUGHf IT WOULD "GO BEITER FOR
lllM IN COURT". THE AFFIANT ENDED THE INTERVIEW/CONFESSION AT TIIA T POINT.

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