ACCEPTED
03-14-00379-CR
3840817
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/21/2015 10:52:55 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00379-CR
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE COURT OF APPEALS
1/21/2015 10:52:55 AM
FOR THE
JEFFREY D. KYLE
THIRD SUPREME JUDICIAL DISTRICT Clerk
AT AUSTIN, TEXAS
WILLIAM EVERETTE RAZOR,
Appellant
vs.
THE STATE OF TEXAS,
Appellee
Appeal from the 27th Judicial District Court
Cause No. 70,483
Bell County, Texas
The Honorable John Gauntt, Judge Presiding
APPELLANT'S BRIEF
Gary E. Prust
State Bar No. 24056166
1607 Nueces Street
Austin, Texas 78701
(512) 469-0092
Fax: (512) 469-9102
gary@prustlaw.com
ATTORNEY FOR APPELLANT
ORAL ARGUMENT IS NOT REQUESTED
IDENTITY OF THE PARTIES
APPELLANT:
William Everette Razor
TDCJ #01884586
Bartlett State Jail
1018 Arnold Dr.
Bartlett, TX 76511
TRIAL COUNSEL FOR APPELLANT:
Mr. Tim C. Mahler
Law Office of Tim C. Mahler
PO Box 266
Belton, TX 76513
APPELLATE COUNSEL FOR APPELLANT:
Gary E. Prust
Law Office of Gary E. Prust
1607 Nueces St.
Austin, TX 78701
TRIAL COUNSEL FOR APPELLEE:
Edward C. Vallejo
Stephanie Newell
Bell County District Attorney’s Office
1201 Huey Rd
PO Box 540
Belton, Texas 76513
APPELLATE COUNSEL FOR APPELLEE:
Bob Odom
Bell County District Attorney’s Office
1201 Huey Rd
PO Box 540
Belton, Texas 76513
ii
TABLE OF CONTENTS
Identity of the Parties ………………………………………………………………ii
Table of Contents ………………………………………………………………… iii
Table of Authorities ……………………………………………………………… iv
Statement of the Case ………………………………………………………………1
Issue Presented …………………………………………………………………… 1
Statement of the Facts …………………………………………………………… 1
Summary of Possible Arguable Issues …………………………………………… 4
Prayer ……………………………………………………………………………… 5
Certificate of Service ……………………………………………………………… 6
Certificate of Compliance ………………………………………………………….6
iii
TABLE OF AUTHORITIES
Cases:
Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 492 ………………………………1
Benson v. Ohio,
488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300, 1978 ……………………… 1
High v. State,
573 S.W.2d 807 (Tex. Crim. App. 1978) (no issues presented for review)…1
Tucker v. State,
No. 05-01-01899-CR (Tex. App. – Dallas Oct. 30, 2002, no pet.) (not
designated for publication) …………………………………………………5
Williams v. State,
No. 06-10-00156-CR (Tex. App. – Texarkana Mar. 9, 2011, no pet.) (mem.
op., not designated for publication) …………………………………………5
Winfrey v. State
393 S.W.3d 763 (Tex. Crim. App. 2013) …………………………………. 4
Statutes:
United States Constitution
Amendment VIII ……………………………………………………………5
iv
STATEMENT OF THE CASE
Appellant was indicted for aggravated assault with a deadly weapon, a second
degree felony. He pleaded not guilty and proceeded to trial by jury. The jury
convicted Appellant, and the same jury assessed his punishment at 13 years’
confinement. Appellant then timely filed a Notice of Appeal.
ISSUE PRESENTED
Because this brief is being filed in accordance of the dictates of Anders
vs. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 492; Benson v. Ohio, 488
U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300, 1978; and High v. State, 573 S.W.2d
807 (Tex. Crim. App. 1978), no issues are presented for review. A summary of
facts and a discussion of potentially arguable issues will be presented to justify
the conclusion of Appellant’s attorney that there are no arguable appeal issues
and therefore this appeal is frivolous.
STATEMENT OF FACTS
Appellant was indicted for aggravated assault with a deadly weapon. There
were only a few pretrial hearings: Defense motion to raise bond, Aug. 28, 2013;
State’s motion for continuance, Apr. 3, 2014; and a Defense motion to withdraw as
counsel, May 6, 2014. A jury was selected May 5, 2014 and trial commenced the
following day.
On May 28, 2012, Jessica Stone walked to the corner store at about 3:30 am
1
to buy a pack of cigarettes. A car described as a green-ish Chrysler 300 approached
and offered her a ride to the store. The male from the vehicle went into the store
and bought a pack of Newport brand cigarettes for Ms. Stone. She described the
male as African American, tall, slim, and with gaps between his teeth. After that,
he offered her money for sex, to which she agreed.
The duo drove until they found an empty apartment complex. They entered
one room which was in a state of disrepair with a water heater on the ground and
broken glass on the floor. Ms. Stone handed the male condom, and they began to
engage in intercourse. The male was unable to maintain an erection. Ms. Stone
then asked to get a cigarette out of his car. After a brief argument, he told her they
would just leave.
As they prepared to go, the male demanded his money back from Ms. Stone
and struck her in the face four or five times. She remembers him pushing her into a
closet and her blood flying after being struck in the face. She was screaming “rape”
during the assault. The male then took all the money from her and told her that if
she followed him, he would shoot her.
Elizabeth Contreras lived across the street, heard the screaming, and went
over to investigate. She found Ms. Stone. She took care of Ms. Stone immediately
following the assault, and Ms. Contreras’ brother then brought Ms. Stone to her
home. There, Doctor Omar Gonzales treated her. He testified Ms. Stone presented
2
with moderate swelling and tenderness on the lower face, a black eye, swelling
around the nose, and a facture in her lower jaw. She was unable to close her jaw
properly upon admission to the hospital. Ms. Stone was placed in surgery the next
day to correct the alignment of the jaw, which required removing two molars. In
the surgery, they did not wire her jaw completely shut. Rather, they left a small
opening by which she could ingest liquid food. This was necessary because Ms.
Stone was twenty weeks pregnant at the time of the assault. The wires were
removed toward the end of July 2012. At the time of testimony, about two years
later, Ms. Stone still had no feeling on the outside of the left of her face and no
feeling in her teeth. She also felt some discomfort when chewing, two years after
the assault.
The police were eventually notified and Ms. Stone came into the police
station for an interview on June 7, 2012. The police found surveillance video from
the convenience store the night of the assault, blood stains on the wall of the
apartment described by Ms. Stone, and a condom wrapper in that apartment. On
the recovered video, police located at about 3 am on the date of the assault, a male
matching the description provided by Ms. Stone buying a pack of Newport
cigarettes and driving a light green car. Ms. Stone was unable to pick out Mr.
Razor from a six-person photo lineup.
A DNA analysis was later performed on the condom retrieved from the
3
scene of the assault. The analysis revealed there was a one in 719.1 sextillion for
black people probability that someone not Mr. Razor provided the DNA sample
found on the condom.
Appellant requested a charge for the lesser-included offense of assault
causing bodily injury, which was denied. After argument and deliberation, the jury
found Appellant guilty. The same jury heard punishment evidence about
Appellant’s criminal history. They also heard from law enforcement about his bad
character for being a truthful and law-abiding citizen. The jury also heard from
another prostitute Appellant had assaulted. After deliberation, the jury assessed his
punishment at 13 years’ confinement in the Texas Department of Criminal Justice.
This appeal follows.
SUMMARY OF POSSIBLE ARGUABLE ISSUES
An arguable issue Appellant may have is that the evidence of the serious
bodily injury alleged is insufficient to meet the legal definition. The legal standard
in a sufficiency review is whether a rational trier of fact could have found the
defendant guilty of all the element of the offense beyond a reasonable doubt, when
the evidence is considered in the light most favorable to the verdict. Winfrey v.
State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013) (citing Jackson v. Virginia,
443 U.S. 307 (1979)). The argument Appellant could make is that merely having
4
one’s jaw wired does not result in the prolonged loss of use of a bodily function or
organ. However, this issue has been addressed in at least two other unpublished
opinions in two other district courts of appeal. Tucker v. State, No. 05-01-01899-
CR (Tex. App. – Dallas Oct. 30, 2002, no pet.) (not designated for publication)
(evidence of a fractured jaw, restriction to a liquid diet, and pain following the
assault is sufficient for finding serious bodily injury); Williams v. State, No. 06-10-
00156-CR (Tex. App. – Texarkana Mar. 9, 2011, no pet.) (mem. op., not
designated for publication) (finding serious bodily injury is supported by evidence
a person’s jaw was fractured and wired shut, he was limited to a liquid diet for four
to five months, and was still unable to eat hard foods a year after the assault).
The second arguable issue appellant may have is that the sentence imposed
by the trial court is so high, given all mitigating circumstances in Appellant’s life,
the sentence violates the United States Constitution’s provision against cruel and
unusual punishment. UNITED STATES CONST., amend. VIII. However, because the
punishment assessed is within the range of punishment established by the
legislature, this argument will fail.
PRAYER
For all of the foregoing reasons, Appellant’s attorney, Gary E. Prust,
respectfully prays that this Honorable Court grant his Motion to Withdraw
submitted with this brief. Appellant’s attorney sent a letter to Appellant advising
5
him of the consequences of filing an Anders brief, informing of him of counsel’s
request to withdraw, and providing him with a form motion so that is Appellant
wishes to pursue an appeal pro se, he may obtain a copy of the Appellate record.
Respectfully submitted,
/s/ Gary Prust
Gary E. Prust
State Bar No. 24056166
1607 Nueces St.
Austin, Texas 78701
(512)469-0092
Fax (512)469-9102
gary@prustlaw.com
Attorney for William Everette Razor
CERTIFICATE OF SERVICE
In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure,
the undersigned attorney certifies that a true and correct copy of the foregoing
Motion was served upon Bob Odom via electronic service with efile.texas.gov on
this the 20th day of January, 2015.
/s/ Gary Prust
Gary E. Prust
CERTIFICATE OF COMPLIANCE
I hereby certify Appellant’s Brief contains only 1,100 words and is in
compliance with Tex. R. App. Proc. 9.4(2)(B).
/s/ Gary Prust
Gary E. Prust
6
CASE NO. 03-14-00379-CR
THE THIRD SUPREME JUDICIAL DISTRICT
COURT OF APPEALS AT AUSTIN, TEXAS
WILLIAM EVERETTE RAZOR §
§
v. §
§
THE STATE OF TEXAS §
CERTIFICATE OF COUNSEL
In compliance with the requirements of Anders v. California, 386 U.S. 378
(1967), I, Gary Prust, counsel of record for Appellant, William Everette Razor, do
hereby verify in writing, to the Court that I have:
1. notified appellant that I filed a motion to withdraw as counsel with an
accompanying Anders brief, and provided a copy of each to appellant;
2. informed appellant of his right to file a pro se response identifying
what he believs to be the meritorious grounds to be raised in his appeal, should he
so desire;
3. advised appellant of his right to review the appellate record, should he
wish to do so, before filing that response;
4. explained the process for obtaining the appellat record and provided a
Motion for Pro Se Access to the Appellate Record lacking only appellant's signature
and the date, and provided the mailing address of this Court; and
5. informed appellant of his righ tto seek discretionary review pro se
should this Court declare his appeal frivolous.
Respectfully submitted,
/s/ Gary Prust
Gary E. Prust
SBN 24056166
1607 Nueces St.
Austin, Texas 78701
(512)469-0092
Fax (512)469-9102
gary@prustlaw.com
Attorney for William Everette Razor
CERTIFICATE OF SERVICE
In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure,
the undersigned attorney certifies that a true and correct copy of the foregoing
Motion was served upon Bob Odom via electronic service with efile.texas.gov on
this the 20th day of January, 2015.
/s/ Gary Prust
Gary E. Prust
CAUSE NO. 03-14-00379-CR
WILLIAM EVERETTE RAZOR § IN THE COURT OF APPEALS
§
v. § 3RD SUPREME JUDICIAL
§
THE STATE OF TEXAS § DISTRICT AT AUSTIN
MOTION FOR PRO SE ACCESS TO APPELLATE RECORD
This Motion for Pro Se Access to the Appellate Record is brought forth by
William Everette Razor. Counsel for Appellant has filed an Anders brief stating
there are no frivolous issues to argue on appeal and has filed an accompanying
Motion to Withdraw. In support thereof, Appellant respectfully shows:
I.
An Anders brief has been filed in this matter. I still wish to pursue an appeal
on the matter.
II.
I request a copy of the entire Appellate Record in order to pursue my appeal
on my own.
WHEREFORE, PREMISES CONSIDERED, Appellate prays that the Court
enter an Order granting Appellant access to the appellate record in Cause No. 03-
14-00379-CR, for Appellant, William Everette Razor.
William Everette Razor 1
Motion for Access to Appellate Record
Respectfully submitted,
William Everette Razor
Pro Se
TDCJ #01884586 Bartlett
State Jail 1018 Arnold Dr.
Bartlett, TX 76511
CERTIFICATE OF SERVICE
In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure,
the undersigned attorney certifies that a true and correct copy of the foregoing
Motion was served upon the Bell County District Attorney via US Mail to PO Box
540, Belton, Texas 76513.
William Everette Razor
William Everette Razor 2
Motion for Access to Appellate Record