PD-0796-15
IN THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
JONATHAN LEWIS HELM,
APPELLANT
V. COA NO. 02-14-00043-CR
TRIAL COURT NO. 1276053D
THE STATE OF TEXAS,
APPELLEE
APPEALED FROM CAUSE NUMBER 1276053D, IN THE
DISTRICT COURT NUMBER FOUR, TARRANT COUNTY,
TEXAS; THE HONORABLE MIKE THOMAS, JUDGE PRESIDING.
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
WILLIAM H. "BILL" RAY
TEXAS BAR CARD NO. 16608700
ATTORNEY FOR APPELLANT
LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
512 MAIN STREET, STE. 308
FORT WORTH, TEXAS 76102
(817) 698-9090
(817) 698-9092, FAX
bill@billraylawyer.com
***ORAL ARGUMENT IS NOT REQUESTED** June 29, 2015
PETITION FOR DISCRETIONARY REVIEW, PAGE 1
IDENTITY OF PARTIES AND COUNSEL
JOHNATHAN LEWIS HELM APPELLANT
c\o Texas Dept. of Criminal
Justice, Institutional
Division, Huntsville, Texas
HONORABLE TERRENCE BAJUK ATTORNEY FOR APPELLANT
P.O. Box 210863 AT TRIAL
Bedford, Texas 76095
HONORABLE WILLIAM H. RAY ATTORNEY FOR APPELLANT
512 Main Street, Ste. 308 ON APPEAL
Ft. Worth, Texas 76102
HONORABLE SHAREN WILSON CRIMINAL DISTRICT ATTORNEY
401 W. Belknap St. TARRANT COUNTY, TEXAS
Ft. Worth, Tx. 76196-0201
HONORABLE JAMES GIBSON ASSISTANT CRIMINAL DISTRICT
401 W. Belknap St. ATTORNEY
Ft. Worth, Tx. 76196-0201 TARRANT COUNTY, TEXAS
HONORABLE MIKE THOMAS JUDGE, CRIMINAL DISTRICT
401 W. Belknap St. COURT NUMBER FOUR
Ft. Worth, Texas 76196 TARRANT COUNTY, TEXAS
HONORABLE LISA McMINN STATE PROSECUTING
P.O. Box 13046 ATTORNEY
Austin, Texas 78711
PETITION FOR DISCRETIONARY REVIEW, PAGE 2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
INDEX OF AUTHORITIES 4
STATEMENT CONCERNING ORAL ARGUMENT 5
STATEMENT OF THE CASE 5
STATEMENT OF THE PROCEDURAL HISTORY 6
GROUNDS FOR REVIEW
GROUND FOR REVIEW NUMBER ONE 7
THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT
APPELLANT SEXUALLY ASSAULTED THE COMPLAINANT
IN THE STATE OF TEXAS, IN THAT THE ONLY TESTIMONY
ON THIS MATTER WAS IMPEACHMENT EVIDENCE OF THE
COMPLAINANT, WHO DENIED APPELLANT HAD EVER
SEXUALLY ASSAULTED HER IN THE STATE OF TEXAS
PRAYER 11
CERTIFICATE OF SERVICE 12
CERTIFICATE OF COMPLIANCE 12
PETITION FOR DISCRETIONARY REVIEW, PAGE 3
INDEX OF AUTHORITIES
Cases Page
Barley v. State, 906 S.W.2d 27 (Tex.Crim.App. 1995) 9
Cherb v. State, 472 S.W.2d 273, 279 (Tex.Crim.App. 1971) 8
Hughes v. State, 4 S.W.3d 1, 5 (Tex.Crim.App. 1999) 9
Jackson v. Virginia, 443 U.S.307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) 11
Key v. State, 492 S.W.2d 514, 516 (Tex.Crim.App.1973) 8
Klein v. State, 191 S.W.3d 766, 782 (Tex.App. – Fort Worth, 2006), 9
reversed 273 S.W.3d 297 (Tex.Crim.App. 2008)
McMurrough v. State, 995 S.W.2d 944, 948 (Tex. App.—Fort Worth 11
1999, no pet.)
Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.– San Antonio, 1991, 8
pet.ref’d)
Shivers v. State, 374 S.W.2d 672 (Tex.Crim.App. 1964) 8
Villyard v. State, 01-13-00589 (Tex.App-Houston [1st Dist.], 9
May 15, 2014)
Wall v. State, 417 S.W.2d 59; (Tex.Crim.App/ 1967) 8
Williams v. State, 565 S.W.2d 63 (Tex.Crim.App. 1978) 8
Statutes
Rule 607, Texas Rules of Evidence 8
Rule 801 (e)(1)(B), Texas Rules of Evidence 10
PETITION FOR DISCRETIONARY REVIEW, PAGE 4
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not necessary in this case.
STATEMENT OF THE CASE
This is an appeal from a felony conviction and sentence for the offenses of
Sexual Assault of a Child (Count Two) and Prohibited Sexual Conduct (Count
Three). Appellant was charged by indictment in cause number 1276053D with the
offenses of Continuous Sexual Abuse of a Child Under 14 (Count One),
Aggravated Sexual Assault of a Child (Count Two), Sexual Assault of a Child
(Count Three), and Prohibited Sexual Conduct (Count Four). Originally, the State
waived counts one, two, and three, and intended to proceed on count four only.
CR, Pages 68-69, RR-2, Page 4. Ultimately, the State waived count two, and
proceeded on the other three, with count three becoming count two, and count four
becoming count three respectively.
The jury found Appellant not guilty in count one, and guilty in counts two
and three. CR, Pages 95-96; 111-119; RR-4, Pages 93-94.
Appellant elected for the jury to assess punishment. The jury sentenced
Appellant to twenty years in count two and ten years in count three, in the
Institutional Division of the Texas Department of Criminal Justice. The trial court
ordered that the sentences run consecutively. CR, Pages 107-108, 112-119; RR-5,
PETITION FOR DISCRETIONARY REVIEW, PAGE 5
Pages 29-33.
On direct appeal, the Court of Appeals for the Second Appellate District in
Fort Worth affirmed Appellant’s conviction. The opinion was not designated for
publication.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
Appellant was sentenced on January 15, 2015. Notice of Appeal was timely
filed. Appellant timely filed his brief in the Court of Appeals on June 17, 2014.
The State timely filed its brief on September 26, 2014.
The case was submitted to the Court of Appeals, without oral argument, on
October 31, 2014. The Court of Appeals affirmed Appellant’s conviction on June
4, 2015. That opinion is not designated for publication.
This Petition for Discretionary Review is timely filed.
PETITION FOR DISCRETIONARY REVIEW, PAGE 6
GROUND FOR REVIEW NUMBER ONE
THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT
APPELLANT SEXUALLY ASSAULTED THE COMPLAINANT IN
THE STATE OF TEXAS, IN THAT THE ONLY TESTIMONY
ON THIS MATTER WAS IMPEACHMENT EVIDENCE OF THE
COMPLAINANT, WHO DENIED APPELLANT HAD EVER
SEXUALLY ASSAULTED HER IN THE STATE OF TEXAS
The State failed to prove venue in this case. The complainant testified that
she had sex with Appellant, and ended up getting pregnant, but the sex did not
occur in Tarrant County. The complainant specifically stated that nothing
happened at Noel Ranch, which is the street she lived on in Tarrant County with
Appellant. RR-3, Pages 73-74 and 80. The complainant testified that she had sex
with Appellant in Oklahoma one time in November of 2010 and never had sex with
Appellant in Texas. RR-3, Pages 89, and 96-97.
The Court of Appeals held that since Appellant did not make a specific
request for a limiting instruction at the time the evidence was admitted, there was
no error. Opinion, pages 2-5. Further, the Court of Appeals stated that the
complainant wrote a letter, admitted without objection, that specifically stated that
Appellant had sex with her in Fort Worth. Opinion, at page 4. This letter, State’s
Exhibit 5A, does not confirm the Court of Appeals statement. Specifically, Fort
Worth is not mentioned in the letter. The complainant repeatedly testified that she
only had sex with Appellant in Oklahoma.
PETITION FOR DISCRETIONARY REVIEW, PAGE 7
Testimony admitted only for impeachment purposes is without probative
value and cannot be considered as substantive evidence to support a judgment. Key
v. State, 492 S.W.2d 514, 516 (Tex.Crim.App.1973); Williams v. State, 565
S.W.2d 63 (Tex.Crim.App. 1978). The jury may consider the inconsistency as
damaging to the witness's credibility, but may not use the evidence substantively.
A statement admitted only for impeachment purposes, is without probative value
and cannot be considered in determining the sufficiency of the evidence to support
the conviction. This has been the law for a long time. Cherb v. State, 472 S.W.2d
273, 279 (Tex.Crim.App. 1971); Wall v. State, 417 S.W.2d 59; (Tex.Crim.App/
1967); Shivers v. State, 374 S.W.2d 672 (Tex.Crim.App. 1964).
There has always been a danger that a party may attempt to use a prior
inconsistent statement under the guise of impeachment for the primary purpose of
placing before the jury evidence which is not otherwise admissible and which may
be treated as substantial evidence. To prevent this was the purpose of the formerly
required showing of surprise and damage or injury to the calling party's cause
before such testimony was elicited. This is still improper conduct under both the
federal and state versions of Rule 607, Tex.R.Evid., which are almost identical.
See Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.– San Antonio, 1991,
pet.ref’d). A prior inconsistent statement may only be used for impeachment, not
PETITION FOR DISCRETIONARY REVIEW, PAGE 8
as substantive evidence, unless it otherwise falls within an exception to the hearsay
rule. Villyard v. State, 01-13-00589 (Tex.App-Houston [1st Dist.], May 15, 2014.)
This Court has not squarely addressed this issue. See Barley v. State, 906
S.W.2d 27 (Tex.Crim.App. 1995); Hughes v. State 4 S.W.3d 1, 4 (Tex.Crim.App.
1999). This Court considered the issue in Klein v. State, 191 S.W.3d 766, 782
(Tex.App. – Fort Worth, 2006), reversed 273 S.W.3d 297 (Tex.Crim.App. 2008).
This Court held, at 782 and citing Hughes, supra, that
“The Texas Court of Criminal Appeals limits such attacks:
[T]he State's knowledge that its own witness will testify unfavorably
is a factor the trial court must consider when determining whether the
evidence is admissible under Rule 403.... [A] trial court abuses its
discretion under Rule 403 when it allows the State to admit impeachment
evidence for the primary purpose of placing evidence before the jury
that was otherwise inadmissible. [Such] impeachment evidence must
be excluded under Rule 403's balancing test because the State profits
from the witness' testimony only if the jury misuses the evidence by
considering it for its truth. Consequently, any probative value the
impeachment testimony may have is substantially outweighed by its
prejudicial effect. Hughes v. State, 4 S.W.3d 1, 5 (Tex.Crim.App. 1999).”
The Court of Criminal Appeals reversal in Klein, supra, was premised on
the idea that the complainant’s testimony at trial was a recent fabrication and
inconsistent testimony, as the complainant had testified that the Appellant had
sexually assaulted her and also had not sexually assaulted her, and was then
admissible under Rule 801 (e)(1)(B) of the Texas Rules of Evidence. Appellant
submits therefore, that the rule of law on a witnesses’ complete denial of an
PETITION FOR DISCRETIONARY REVIEW, PAGE 9
offense is still good law. The only direct testimony of the complainant that
Appellant sexually assaulted her was that such act happened outside the
jurisdiction of the State of Texas. RR-3, Pages 73-74, 80, 89, and 96-97.
In the present case, the State did exactly what the rule of law should
prevent. In its opening statement, the prosecutor told the jury:
“And part of what Mark [co-prosecutor] was saying yesterday about
this case being interesting is that we don’t know what [the complainant]
is going to say now.” RR-3, Page 15.
The State called an impeachment witness before calling the complainant
because the State knew she was not going to testify that Appellant had sexually
assaulted her in Texas. The prosecutor cannot claim surprise because he had
interviewed the complainant in the jail the day before. RR-3, Page 67.
Given that there was no proper evidence to substantiate the allegations of
sexual misconduct as alleged, Appellant submits that no rational trier of fact could
have found all the elements of the crime beyond a reasonable doubt. For these
reasons, Appellant submits that the evidence of impeachment was improperly
considered for substantive evidence, and when that evidence is not considered, as
should be the case, the evidence was insufficient to support a finding of guilty in
Counts Two and Three. Jackson v. Virginia, 443 U.S.307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979).
PETITION FOR DISCRETIONARY REVIEW, PAGE 10
The Court of Appeals’ holding that the lack of a limiting instruction request
is dispositive is not the correct analysis. The only substantive evidence is that the
State did not prove venue in Texas. Impeachment evidence on this issue is not
proper evidence, and not substantive as proof of venue or any other element.
Appellant submits that the testimony had a significant or injurious effect on
the jury's verdict such that his substantial rights were affected. McMurrough v.
State, 995 S.W.2d 944, 948 (Tex. App.—Fort Worth 1999, no pet.). Klein, supra
at 785.
Appellant submits that venue was not proven, even by a preponderance.
Accordingly, the evidence was insufficient to sustain Appellant’s conviction.
PRAYER FOR RELIEF
Appellant Prays that this Honorable Court reverse his conviction and enter a
judgment of acquittal.
PETITION FOR DISCRETIONARY REVIEW, PAGE 11
RESPECTFULLY SUBMITTED,
/S/ WILLIAM H. “BILL” RAY
WILLIAM H. "BILL" RAY
TEXAS BAR CARD NO. 16608700
ATTORNEY FOR APPELLANT
LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
512 MAIN STREET, STE. 308
FORT WORTH, TEXAS 76102
(817) 698-9090
(817) 698-9092, FAX
CERTIFICATE OF SERVICE
I certify that a true copy of Appellant's Petition for Discretionary Review
was delivered via the electronic filing system to the office of Sharen Wilson,
Criminal District Attorney, Criminal District Attorney of Tarrant County, Texas,
401 W. Belknap St. Ft. Worth, Tx. 76196-0201 on the date of this document’s
filing.
I certify that a true copy of Appellant's Petition for Discretionary Review
was placed in the United States Mail addressed to Appellant, in the Texas
Department of Corrections, on the date of this document’s filing.
I certify that a true copy of Appellant's Petition for Discretionary Review
was delivered via the electronic filing system to the State’s Prosecuting Attorney,
at P.O. Box 13046, on the date of this document’s filing.
/S/ WILLIAM H. “BILL” RAY
WILLIAM H. “BILL” RAY
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4 i3, of the Texas Rules of Appellate Procedure, I certify
that this Petition for Discretionary Review filed in this case, has 2141 words
contained therein. This count was obtained via the WordPerfect computer
program.
/S/ WILLIAM H. "BILL" RAY
WILLIAM H. “BILL” RAY
PETITION FOR DISCRETIONARY REVIEW, PAGE 12
Helm, Johnathan Lewis
Combined Opinion