/669/V
PDR#
ORIGINAL
APPEAL FROM THE 128TH JUDICIAL DISTRICT
COURT
TRIAL COURT CAUSE NUMBER 080508R
OF ORANGE COUNTY, TEXAS
Hon. Courtney Arkeen, Judge Presiding
TRANSFERRED FROM THE 9TH COURT OF
APPEALS TO 14th Case # 14-13-00650-CR
MOTION FOR PETITION FOR DISCRETIONARY
REVIEW
cRECEIVED IN
PRO- SE MOTION BY ERIC WILLIAM^criminaiappeals
P.O. Box 776 FEB 20 2015
Orange, Texas 77631-776 AtmiActm Ctok
(409)728-3131 ,U**
(337) 936-0773—Alternate
E-mail: ericwill86.ew@gmail.com FILED IN
February 19,2015 C0UftT of criminal appeals
F£3 2 o 2015
Aocjj Acosta, Clerk
IDENTITY OF PARTIES AND COUNSEL
Appellant: ERIC JARROD WILLIAMS
Trial Counsel: Joe Alford
105 S. Market Street
Orange, TX 77630
State Bar No. 1012500
Appellate COUNSEL: N/A
PRO-SE MOTIONS: Eric Jarrod Williams
Appellee: State of Texas
Counsel: Phillip C. Smith, Jr.
(Trial and Appeal) Orange County Assistant District
Attorney
801 W Division Ave.
Orange, TX 77630
State Bar No. 797460
IN THE
COURT OF CRIMINAL APPEALS
SUPREME JUDICIAL DISTRICT PDR #
ERIC JARROD WILLIAMS
Appellant
V.
THE STATE OF TEXAS
Appellee
TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS:
Now comes Eric Jarrod Williams, appellant in the above-captioned cause, by and
through, and submits this motion for Petition For Discretionary Review
Background
On May 15, 2013, Appellant was convicted by a Jury Panel of the offense
Indecency With A Child By Exposure 21.11(a) (2) (A) Of the Texas Penal Code and
given-a sentence of Ten years confinement in TDCJ and a $5,000 fine by the Bench
on June 14, 2013. The Bench ordered that the sentence be probated for a period of
ten years with 180 days to be served as upfront time In the County Jail as a
condition of probation and a $5000 fine.
On September 23, 2014, the Honorable14th Court of Appeals denied relief for Appellant,
and affirmed the judgment of the trial court. The Motion for Petition for Discretionary
Review is due on February 20, 2015.
The sole issue on appeal was whether the trial court erred in denying the appellant a
hearing on his motion for new trial. The opinion predicates its holding on two grounds:
In two issues, appellant argues that (1) the trial court erred in admitting evidence
of extraneous offenses allegedly committed by appellant; and (2) the evidence presented
at trial was legally and factually insufficient to establish that appellant committed the
specific offense.
Appellant believes the record demonstrates otherwise and prays to the court that
this case is accepted and reviewed by the Court of Criminal Appeals.
Presentment of the Motion
The supplemental record filed by the trial court in this case contains case events
submitted to the court of appeals of events were alleged to have taken place in violation
of Rule 404(b) of the Texas Rules of Evidence. Appellant contends in his first issue that
the trial court violated Texas Rule of Evidence 404(b) by admitting evidence of
extraneous offenses allegedly committed by appellant during the guilt-innocence phase
of his trial. The extraneous offenses at issue were incidents in which appellant allegedly
watched pornographic movies and exposed his genitals in front of and an
incident in which appellant allegedly watched a pornographic movie and masturbated
with Desmond Burnette. Appellant asserts that, because the incident upon which the
State elected to base the indictment was a specific event. In fact the event in the
indictment was not the event chosen to be the event used in the guilt phase to the jury
panel. This event contained a specific event sworn by Detective Jefferson- Simon but not
by Detective Davis, who was the initial Detective in the case. Evidence of extraneous
offenses committed by appellant against and an extraneous offense
committed by appellant against Desmond Burnette and Chris Janice was inadmissible.
After hearing testimony and arguments the issue, the trial court issued a
letterruling that the extraneous offenses would be admissible with a limiting instruction
in the Court's charge. (C.R. 21). The following day, the court further explained that it
was allowing the evidence for purposes of showing motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. (4 R.R. 12).
Appellant's counsel then specifically asserted objections to each of these grounds
individually. (4 R.R. 13-15).Appellant's objections were noted and overruled. (4 R.R.
17). In this Case Appellant states the trial court violated Rule 404(b) of the Texas Rules
of Evidence due to there was no mistaken identity in this case. This case, Appellant
would urge that the State failed to establish that the various extraneous offenses alleged
in this case were admissible under any of the exceptions enumerated in Rule 404(b). For
example, the case relied upon by the State at the pretrialhearing to show admissibility of
the evidence for purposes of identity," Segundo v. State, 270 S.W.3d 79 (Tex. Crim.
App. 2008), is distinguishable because "identity" was not a true issue in this case. This
case did not involve a situation where in a crime was committed and there was a genuine
question of what person committed the crime. Rather, Appellant's defense was simply
that the events alleged never occurred at all.
Thus, extraneous allegations do not show a modus operandi that links a particular
perpetrator to a known crime; to the contrary, they were used in this case simply to
bolster the idea for the jury that there were so many allegations against Appellant that he
mustbe guilty of them all. SeeSegundo, 270 S.W. 3d at 87-88. The othercase relied
upon by the State initiatives argument is also distinguishable.
In Schexnider v. State, 943 S.W.2d 194 (Tex. App.—Beaumont 1997, no pet.), the
court held that in the Defendant's capital murder trial, evidence of the dismemberment of
the corpse was admissible as an extraneous offense because it was interwoven with the
indicted offense to the extent that it was part of the same contextual transaction
The State/ Appellant Courts argues that the trial court did not abuse its discretion
because the identity of appellant was at issue. We disagree that identity was at issue. The
dispute at trial focused not on the identity of the person who exposed himself to
but on whether was credible and whether the incident occurred. However in any
case where there is a question of actual evidence then reliability becomes the over
weighing factor beyond a reasonable doubt. did state he had an extensive
criminal history along with State's other witness Desmond Burnette. (For Further See
C.R. v4 of 7 page 58 Line and pg 181 Line 22 Desmond Burnette.)
Extraneous Offense against Desmond Burnette, the states alleges that Desmond
Burnette testified/agreed to masturbating for money, which nowhere in his testimony
does he state this or his written statement. The testimony includes this:
THE STATE: OKAY. NOW, WHAT HAPPENED WHEN YOU GOT TO HIS GRAND
MOTHER'S HOUSE IN CLAIRMONT?
DESMOND BURNETTE: WHEN HE GOT THERE, HE HAD HE HAD HE HAD GOT
A TOWEL OUT AND STUFF AND A - AND A LAPTOP, HIS LAPTOP. THEN
WHEN THEYHAD PUT ON SOME PORNO AND THEYSTART—THEY START
PLAYING WITH THEMSELVES (SIC) AND I HAD WALKED OUT BECAUSE I
DON'T-1 TOLD THEM, "I DON'T DO THAT STUFF."
The actual "incident" upon which the Indictmentis based and conviction sought was a
single specific event alleged to have taken place in the bedroom of Appellant, in the
presence of, Chris Janice. (C.R. 47 atf 5; 5 R.R. 49). Nonetheless, the State offered
testimonial evidence of various other alleged events that purportedly took place in
different locations, under different circumstances, and involving different people. For
example, Victim testified about a pornography viewing and group masturbation event
that allegedly occurred in a parking lot across the street from aunt's house (3 R.R.
9-11); an event that occurred at Appellant's home while was skipping school, with
no other participants (4R.R. 78-79); and occurrences on two or three occasions in Vinton,
Louisiana. (3R.R. 16; 4 R.R. 52, 79-80).
also testified as to alleged acts or offenses that were different than the act
alleged in the indictment; specifically, testified that Appellant made requests for
to masturbate him, to allow Appellant to masturbate and to perform
oral sex on Appellant, although none of those requests were fulfilled. (4 R.R. 55). The
pornography alleged bythe victim to be shown was homemade and unfounded by analyst
research. Neither Burnette nor could identify or describe any of the videos and this
evidence was excluded. Defense also submitted on Defense exhibit #4 a recorded
conversation between the victim and Appellant to where victim admitted that none of
these events ever happened. This exhibit was objected by Judge Arkeen from being
played in the trial. When questioned about the recorded the victim stated, " No he didn't
ever call and that he would have to hear it. Judge Arkeen reviewed the records and told
thejury there was a conversation between Victim and Appellant. The Questionable fact
of this is based off of hear say verses no evidence. If none of the alleged homemade
videos were found or allowed in the trial. The answer is where and how did the appellant
expose his genitals to anyone?
Evidence is relevant if it has a "tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
Probable than it would be without the evidence." TEX. R. EVID., Rule 401. Evidence
that is not relevant is inadmissible. TEX. R. EVID., Rule 402. Further, rule 404(b) of the
Texas Rules of Evidence reads, in pertinent part,
as follows:
Evidence of other crimes, wrongs or acts is not admissible to prove the
Character of a person in order to show action in conformity there with. It may, however,
be admissible for other purposes, such a proof of Motive, opportunity, intent, preparation,
plan, knowledge, identity, or Absence of mistake or accident....
TEX. R. EVID., Rule 404(b). This rule "incorporates the fundamental tenet of our
criminal justice system that an accused may be tried only for the offense for which he is
charged and not his criminal propensities." Rankin v. State, 91A S.W.2d 707,718 (Tex.
Crim. App. 1998) (op. on reh'g).
Upon objection to extraneous offense evidence, the proponent of such
evidence bears the burden of showing that the evidence has relevance apart from
Its character conformity value. Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim.
App. 1997). "If the evidence has no relevance apart from supporting the conclusion
11 that the defendant acted in conformity with his character, it is absolutely
Inadmissible." Id.
In this case, Appellantwould urge that the State failed to establish that the
various extraneous offenses alleged in this case were admissible under any of the
exceptions enumerated in Rule 404(b). Forexample, the case relied upon by the
State at the pretrial hearing to show admissibility of the evidence for purposes of
9
"Identity," Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008), is distinguishable
because "identity" was not a true issue in this case. This case did not involve a situation
where in a crime was committed and there was a genuine question of what person
committed the crime. Rather, Appellant's defense was simply that the events alleged
never occurred at all. Thus, extraneous allegations do not show a modus operandi that
links a particular perpetrator to a known crime; to the contrary, theywere used in this
case simply to bolster the idea for the jury that there were so many allegations against
Appellant that he must be guilty of them all. See Segundo, 270 S.W. 3d at 87-88. The
other case relied upon by the State in its argument is also distinguishable. In Schexnider
v. State, 943 S.W.2d 194 (Tex.App.—Beaumont 1997, no pet.), the court held that in the
Defendant's capital murder trial, evidence of the dismemberment of the corpse was
admissible as an extraneous offense because it was interwoven with the indicted offense
to the extent that it was part of the same contextual transaction. 943 S.W.2d at 201-202.
That 12doctrine is not applicable in this case, however, as the various allegations made
against Appellant at the trial involved distinct and completely unrelated events, locations,
and participants rather than a single continuous transaction.
Further, the extraneous offenses could not be admissible under the "plan"
exception to Rule 404(b). As succinctly stated by the Court of Criminal Appeals:
Repetition of the same act or same crime does not equal a "plan." It equals the repeated
commission of the same criminal offense offered obliquely to show bad character and
conduct in conformity with that bad character—"once a thief, always a thief." This bad-
character conformity purpose, whether express or not, is precisely what is barred
10
by Rule 404(b). Thus, if the proponent is unable to articulate exactly how an extraneous
act tends to prove a steptoward an ultimate goal or overarching plan, the evidence is not
admissible to prove part of a "plan"Daggett v. State, 187 S.W.3d 444,451-52 (Tex.
Crim. App. 2005). Just as in Dagget, the evidence of extraneous offenses herein were
nothing more than the alleged repetition of the same act at different times; there was no
evidence of an"ultimate goal or overarching plan," thus the evidence was not admissible
to provepart of a plan. Nor could the evidence have been admissible to prove opportunity,
as Appellant never denied opportunity. See Powell vState, 63 S.W. 3d435,438-
40 (Tex. Crim. App. 2001).
In sum, the testimony presented that Appellant allegedly committed various
extraneous offenses at different times, in different locations, and with different
individuals, constituted character-conformity evidence and nothing more. It was
13 not probative of whether Appellant committed the specific offense alleged in the
Indictment in this case, and it was offered only for a "bad-character-conformity purpose."
See Daggett, 187 S.W.3d at 452. Such evidence is prohibited by Rules 403 and404(b).
Moreover, such evidence, particularly consisting exclusively of allegations that have
never been proven in a court of law on their own merit, unquestionably caused unfair
prejudice, confusion of the issues, and misleading of the jury, as there was grossly more
extraneous offense evidence than there was evidence pertaining to the specific event
alleged inthe Indictment. Thus, Appellant urges that the trial court abused its discretion
in admitting this evidence.
11
Harm Analysis
The effect on appeal of the improper admission of evidence is governed by
Rule of Appellate Procedure 44.2(b), which provides that"a nonconstitutional error 'that
does not affect substantialrights must be disregarded.'" Motilla v. State, 78S.W.3d 352,
355 (Tex. Crim. App. 2002) (quoting TEX. R. APP. P. 44.2(b)); Fowler v. State, 958
S.W.2d 853, 864-65 (Tex.App.-Waco 1997), affd, 991 S.W.2d258 (Tex. Crim.
App. 1999). "A substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271
(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct.
1239,1253, 90 L.Ed. 1557 (1946)). "In assessing the likelihood that thejury's decision
was adversely affected by the error, 14 the appellate courtshould consider everything in
the record, including any testimony of physical evidence admitted for the jury's
consideration, the nature of the evidence supporting the verdict, the character of the
alleged error and how it might be considered in connection with other evidence in the
case." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). If, after reviewing
the entire record, the appellate court has grave doubts about the effect of the improper
evidence on the outcome, it should require a new trial. See Fowler, 958 S.W.2d at
866.
The evidence introduced at trial that supported the verdict included the
testimony of Toni Hardin (mother), Chris Janice., and Officer Sarah
Jefferson Simon. Victimtestified that appellant masturbated in front of him on multiple
12
occasions and he agreed to this and was paid over $500. Chris Janice testified that he
watched the movies on his own free will and was never paid any money as part of any
scam, agreement, motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake by the appellant. Chris states that appellant "kind of sort of
masturbated with of them, but appellant was out of sight on the floor away from everyone
else. He wasn't even sure if the appellant was doing anything or not cause he was on the
floor sitting out of sight of anyone else in room. In this incident Appellant was to have
never taken his clothing off. This incident only had taken place one time with the victim
Present. During this event was on the floor on left side of bed, and
Appellant was on right of bed on the floor out of eyesight of everyone in the dark room.
Further, the State introduced a prior written statement signed by Chris, who stated: we
were at appellant's house about four or five times while I was there. Appellant would be
on one side of his bed. He would be pleasuring himself" Chris Janice then testified he
only agreed to this statement because he was threatened by Detective Jefferson- Simon.
When crossed examined by Defense Chris agreed that he wrote a corrected statement to
the appellant. (Entered as Defense exhibit #2) The trial testimony includes this:
THE STATE: SO YOU ARE SAYING YOU NEVER TOLD THESE
THINGS TO SARAH JEFFERSON?
CHRIS: I TOLD YOU SHE ASKED ME QUESTIONS, I GAVE HER
ANSWERS. SHE ASSUMED HER OWN SCENARIOS.
THE STATE: SHE ASSUMED IT. DID SHE READ THIS STATEMENT TO
YOU BEFORE YOU SIGNED IT SWEARING THAT IT WAS THE TRUTH?
13
CHRIS: YEAH.
THE STATE: AND DID YOU FIND IT TO BE THE TRUTH WHEN YOU
SIGNED IT AND SWORE TO IT?
CHRIS: NOPE. I HAD TO SIGN IT
THE STATE: YOU HAD TO SIGN IT. WHY DH) YOU HAVE TO SIGN
IT?
CHRIS: BECAUSE SHE STATED THAT EVERYBODY IN THE CASE
SAID MY NAME, THAT IF I WOULDN'T CORROBRATE, I WOULD BE
BROUGHT UP ON CHARGES.
Chris: SHE ASKED. I TOLD YOU SHE OUT IT INTO HER OWN WORDS
The potential harm for a verdict based on extraneous offenses in this case,
rather than evidence of the event upon which the Indictment was based, is highlighted by
the absolute absence of evidence produced at trial that Appellant exposed his genitals on
the event in question. Specifically, although testified that he saw
Appellant's penis on the occasion of the first "group masturbation" event that occurred in
Appellant's car the first night they met, that was not the incident upon which the State
based its Indictment and witnesses Chris Janice denied knowledge of this event. (4 R.R.
49). The only testimony offered about the pornography and masturbation event that
included both and Chris, which was the incident chosen by the State to be the
incident upon which conviction was sought, was offered not by but by Chris
himself. In that testimony, however, Chris denied that Appellant's genitals were exposed.
(4R.R. 115-119). In fact, Chris stated thathe did not even know whether Appellant was
14
masturbating at the same time everyone else was or what he was doing. (4 R.R. 117-127).
who provided very few details about any of his allegations or could remember
the events he testified to the day before when cross examined by defense counsel.
offered no testimony regarding a specific occurrence in Appellant's bedroom
with Chris present. Accordingly, thejury couldonly have found that Appellant showed
his genitals on that specific occasion by assuming that, because testified that
Appellant had exposed himself before, he must have done so on thatoccasion, even
though there was absolutely no evidence whatsoever to that effect. This constitutes no
evidence, or nothing more than a "modicum" of evidence, probative of an essential
element of the offense; accordingly, the evidence is insufficient to support Appellant's
conviction in this case. Gonzalez, 337 S.W.3d at 479.
Accordingly, Appellant's conviction should be reversed and a judgment of acquittal
given by Appellant Court.
Specifically, Thejury was given specific instructions to avoid violating rule
404(b) was to use the given testimony ONLYfrom Chris Janice which they failed to do.
Now in any cause the reliability is to be the sworn factor beyond a reasonable doubt to
prove innocence or guilt. If the testimony is unreliable then it shall be thrown out. The
factors relied only on the testimony of states witness Chris Janice who was treated as a
hostile witness by the state and called "Suborning witness by state. (C.R. V4 OF V7 page
146-147 line 25)
15
THE STATE: I HAVE NO FURTHER QUESTIONS OF THIS LYING,
SUBNORING WITNESS.
Officer Simon testified that she found the accounts given by the juveniles to be
consistent. However Detective Jefferson-Simon was not the initial detective who
investigated this case the proven sworn statement was given to Detective Davis not
Detective Jefferson-Simon. gave three different statements to Officer
Melancon, Detective Davis and Detective Jefferson- Simon. Officer Melancon states that
the statement he taken was to be the first and the events Detective Jefferson- Simon
wrote up were not consistent to his.
The Court of Criminal Appeals has held that "a rigorous and proper
application" of the Jackson legal sufficiency standard is "the only standard that a
reviewing court shouldapply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to prove beyond
a reasonable doubt". Brooks v. State, 323 S.W.3d 893, 902-03, 906, 912 (Tex. Crim. App.
2010) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 16 61 L.Ed.2d
560 (1979)). To determine the sufficiency of the evidence under the Jackson standard, an
appellate court must review all of the evidence in the light most favorable to the verdict
to determine whether any rational tier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Brooks, 323 S.W.3d. at 898-99." [Ejevidence is
insufficient to supporta conviction if considering all record Evidence in the light most
16
favorable to the verdict, a fact finder could not have rationally found that each essential
element of the charged offense was proven beyond a reasonable doubt." Gonzalezv.
State, 337 S.W.3d 473,478 (Tex.App.- Houston [1st Dist] 2011, pet. refd); Laster v.
State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007).
"Evidence is insufficient under this standard in four circumstances: (1) the
record contains no evidence probative of an element of the offense;
(2) the record
contains a mere 'modicum' of evidence probative of an element of the offense;
(3)
the evidence conclusively establishes a reasonable doubt; and
(4) the acts alleged
do not constitute the criminal offense charged." Gonzalez, 337 S.W.3d at 479.
If an appellate court finds the evidence insufficient under this standard, it must
reverse the judgment and enter an order of acquittal. Id. (citing Tibbs v. Florida, 457 U.S.
31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982)).An appellate court "determine^]
whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence viewed in the light most favorable to the verdict."
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quotingHooper v. State,
214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)).
17
CERTIFICATE OF SERVICE
I delivered a copy of the above and foregoing Motion to the Orange County District
Attorney's Office on February 20, 2015
/s/Eric Jarrod Williams
f^t:
~^
18
WHEREFORE, PREMISES CONSIDERED, Appellant prays that the court
grant/ Accept Appellant motion in this case, and thereafter remand the case on appellant's
motion for acquittal vacating the trial court judgment and sentence.
RESPECTFULLY SUBMITTED
£-x)