Williams, Michael David

202-/5
GINAL
No.

IN THE
COURT OF CRIMINAL APPEALS
COURT OF CRIMINAL APEALS
MAR lo 2015

OF TEXAS
Abel Acosta, Clerk

^MICHAEL DAVID WILLIAMS
FILED IN
PETITIONER
COURT OF CRIMINAL APPEALS
VS.
MR 10 2015
THE STATE OF TEXAS
Abel Acosta, Clerk
RESPONDENT

Petitioner in cause No. D 34, 123-CR from the 13th v

Judicial District Court of Navarro county/ Texas and for Appeal

No. 07-14-00128-CR from the Court of Appeals for the

Seventh District of AMARIL-LQ-.TEXAS .

PETITION FOR DISCRETIONARY REVIEW

MICHS-EL DAVID WILLIAMS

TDCJ-CID* 1913738

CLEMENTS UNIT

9601 SPUR 591

AMARILLO, TEXAS. 79107

ORAL ARGUMENT REQUESTED
 TABLE OF CONTENS

TABLE OF CONTENS I

INDEX OF AUTHORITIES II

STATUTES ' II

STATEMENT OF THE CASE I

A. PROCEDURAL SUMMARY 1

B. FACTUAL SUMMARY 1,2,3,4

GROUND FOR REVIEW 5

GROUND ONE 5

The Seventh Court of Appeals, in reviewing Mr.Williams First Ground of Error,
failed to consider that Petitioner was Egregiously harmed by the Jury Charge
erroneously stated the eiments of the offense and aallowed the Jury to convict
Petitioner for act or acts not Authorized by the relevant statute or Substant
ial RightT.R.A.P.44.2(b) and Due Process, Due Course of Law, 5ht,6th,14,
Amendment.

I. AUTHORITIES FOR GROUND ONE 5

II. ARGUMENT FOR GROUND ONE >5rl8

HARM ANALYSIS 6,7

PRAYER FOR RELIEF 19

CERTIFICATE OF SERVICE 19

INMATE DECLARATION 19

I.
 TABLE OF AUTHORITIES

ALMANZA V. STATE, 686 S.W.2d 157, 171 (Tex.Crim.App.1985)(op. on reh'g) ^'^

ABDNOR V. STATE, 871 S.W.2d 727 (Tex.Crim:App.) 7
BARRIOS V. STATE, 283 S.W.3d 348,350 (Tex.Crim.App.2009) 7
NEAL V. STATE, 256 S.W.3d 264,278 (Tex.Crim.App.2008) 5

NGO V. STATE, 175 S.W.3d 738, 743 (Tex.Crim.App.2005) 5

SWEARINGEN V. STATE, 270 S.W.3d 804, 808 (Tex.App.-Austin 2003, pet. ref'd) 6

TAYLOR V. STATE, 332 S.W.3d 483, 489 (Tex.Crim-App.2011) 7

STATUTES:

TEX. PENAL CODE ANN. §21.02(b) 6

TEX. PENAL CODE ANN. §21.02(c)(3) 6

TEX. PENAL CODE ANN. 21.11(a)(1) 6

TEX. PENAL CODE ANN. 22.02 6

TEX. RULE APPELLAN PROCEDURE 44.2(b) SUBSTANTIAL RIGHT 6,7

FOURTH, FIFTH, SIXTH, FOURTEENTH, AMENDMENT

II.
 STATEMENT OF THE CASE

A. PROCEDURAL SUMMARY:

Michael David Williams, Petitioner, was indicted on January

26, 2012. By a Grand Jury in Navarro County, for "Continuous Sex

ual Assult of a Child". A Jury Trial was commence on January 6th,

2014, and finalized on January 10th,2014 a Guilty verdict. The

Court assessed punishment on February 28th_, 2014 Of Ninety nine

(99) years in Prison. A Notice of Appeal was filed March 7th,

2014. The Appellant Brief was timely filed on August 18th,2014.

The State timely filed there Brief on September 9, 2014. The

Seventh Court of Appeals Rendered Their Judgment of Affirm on

January .29, 2015.

B.FACTIAL SUMMARY:

On .the last day of school in Mayvin 2010, Billie Williams

told Petitioner that their daughter had told her he had touched

her inappropriately. Petitioner came home from work and they both

confronted the child. The child related the accusation again in

the presence of both parents who questioned her furhter about the

accusations. (3Report's Record [RR] 208-212). In response to a

specific question regarding the color of the "stuff" that came

out of Petitioner's penis, she responded that it wasvgreen/ (RRv3
p211). For this and other reason her mother did not believe the

accusation and did not report it to the police.(RRV3p211).Because

their relationship was deteriorating previously, B.Williams moved
out with the kids a week later. (RRv3p212-213). B.Williams allow

ed her daughter to stay with Petitioner on weekends over the sum
mer and still did not report the allegation. On August 5, 2010,

1-
B.Williams went to the sheriff's department and made a report.The

then nine (9) year old child was immediately interviewed at the

Navarro County child Advocacy Center, but could not or would not

give any details of the offense. The interview, Lydia Bailey,man

aged to get her to indicate, through pointing to anatomically •::;• •

correct darwings, cryptic writing, and gestures, that her father

had touched her on her stomach between her belly button and her

vagina, and on her upper left thigh below her butt. (RRv3pl59-
169; RRv3pl67; State's Exhibit No.21 [on what appears to be the

second page]). However, when pressed to give any sort of^detail,

the child told Bailey to ask her mother. (RRv3pl69J. She gave no
dates and no indication of how many times. (RRv3pl68-169).B.Wil

liams gave two written statements which attempted to establish a

timeline and locations for the alleged abuse. (RRv63tate's Exhib

its 23 and 24). Law enforcement officers testified that the loca

tions were in Navarro County and that they went to the locations

and observed some of the physical evidence described by B.Willia

ms in her statements such as the presence of legal pornography in

the house and the rabiticages in the barn. At Petitioner trial,

although the child did testify, she was unable to relate virtual

ly any details. The prosecutor was able to pull out of her that

her dad touched her on the breasts, which she called her bad spot

, her vagina, which she called her middle spot, and her butt whi
ch she reluctantly called her back bad spot. (RRv4pl3-22) . she ,•
also testified that on the same occasion, her father made her

touch his peniss which she called his middle spot (RRv4p31).

Eventually, she testified that it was in her mother's room on the

2.
bed when her mother was at work. (RRv4p22) . She testified that ,; .

this happened when she was in kinderarten which would have been

prior to September 1,2007. (RRv4p20). Her mother testified that
she was in kindergarten in the 2006-2007 school year. (RRv3,185).
The only possible substantive evidence of any of the allegations
contained inthe.indictment came from the child's mother, Billie-

Williams, who testified as the outcry witness. B.Williams testif

ied that after being caught trying to kiss a girlfriend, her dau

ghter told her that she did not see anything wrong with it becau
se her father "touches her bad spot". (RRv3p207). Although in

Court, the child identified Per breasts as her bad spot and vagina

as her middle bad spot, B.Williams testified that she believed ..•

her daughter was referring to her vagina. (RRv3p207,208;RRv4pl3,-
14,19;RRv6 State's Exhibit No.20). B.Williams futher testified :

that her daughter told her that he put his mouth on her bad spot
and made her touch his bad spot. (RRv3p208). She testified that

she did not believe her daughter and that she and Petitioner que

stioned her about it later that evening when Pettioner came home

from work. (RRv3^08-212). B.Williams said that the child had said
her father said "that's how you know when daddy's happy..- when

the stuff comes out". (RRv3p210). When asked what color, the "suff
" was, the child stated it was'green." (RRv3p211) - This cause B.

Williams to futher disbelieve the child. RRv3p211. She did not

report the supposed outcry to the police and she stayed with the
Petitioner for another week. (RRv3p212). She testified that she

was planning to leave anyway.because the relationship was deter
iorating before this incident and she knew he was getting redy
3.
to ask them to leave. (RRv3p212-213). After they separated, she

continued tooallow her daughter to stay with.the Petitioner on

weekends. She testified that over the summer she came to believe

her daughter because she kept telling the same thing and it never

changed. (RRv3p216). B.Williams said that her daughter gave her

details but the only details that she testified about were;that

"it" happened once in the pasture while checking the fence line

when they were living in Bazette. (RRv3,216); that while tending

to the rabbits, he would place her on a show table in the rabbit

pen at their house in Bazette (RRv3p217); and she said it would

happen at her Uncle James's house while they were over there (RR-
3p217). She testified that the child never told her how many '..;•:

times "it" had happen, how old she was when it began or how old

she was when it stopped. (RRv3p217). B.Williams testified that

her daughter told her that Petitioner had touched her over:, her

clothing on her;: bad spot when he would go in her room to kiss her

goodnight. Again, in court, the child referred to her breasta as

"bad spot". This happened at the house in Corsicana. (RRv3p217- '

218). The familly lived in Corsicana from November 2009 until

B.Williams and: the kids moved out in June of 2010. (RRv6State's

Exhibit No.23 and 24). The only other evidence introduced regar

ding the actual acts alleged were the witness statement of Billie
Williams (RRv6 State's Exhibit No.23);. In these statements, B. --
Williams attempts to give more details and provide a timeline, ;

but not much is added. Petitioner testified and denied the accus

ation.
 GROUND ONE

The Seventh Court of Appeals, in reviewing Mr.Williams First Ground of Error,

failed to consider that Petitioner was Egregiously Harmed by the Jury Charge

erroneously stated the elements of the offense and allowed the jury to conv

ict Petitioner for act or acts not authorized by the relevant statute or sub—

Stantial Right Tex.R.App.P.44.2(b) nad DUE Course of LAW .

AUTHORITIES AND ARGUMENT

I. AUTHORITIES:

Petitioner wasegregiously harmed because the Jury Charge erroneously stated

the elemenants of the offense and allowed the jury to convict Petitioner for :;;

an;act or acts not authorized within the continuous sexual-iassault of a child

statute. Petitioner was harmed in that the erroneous;charge by allowing the -r-

jury to convict Petitioner for touching, including throuqh clothing the brease

ts of a child, which act is specifically excluded as an act of sexual abuse- -e-

for the purposes of continuou sexual assault, went to:the very basis of the -^

case and made it singnificantly easier for the jury to convict Petitioner.

Based on the nature of the error in the charge, the lack of Substantial evidevr

nee and the entire record, Petitioner was denied a fair and impartial trial --

and as such he was egregiously harmed.

II. ARGUMENT:

Petitioner was egregiously harmed because the jury charge erroneously stated

the elements of the offense and allowed the :iury to convict Petitioner for act

or acts not authorized by relevant statute.

5.
STANDARD OF REVIEW

Claims "of jury charge error;, under "e two-prong test set out in Almanza V. :• ;
State,686 S.W.2d 157,171(Tx.Crim.App.1985)(op., on reh'g), see Swearingen v.
State, 270 S.W.3d 804, 808 (Tex.App.-Austin 2008, pet. ref'd). It must first
be determined whether error exists. Ngo V. State, 175 S.W.3d 738, 743 (Tex., t—
Crim.App.2005); Swearingen, 270 S.W.3d at 808. If error exists, the court sho
uld then evaluate the harm caused by the error. Ngo, 175 S.W.3d at 743; Swear
ingen, 270 S.W.3d at 808. The degree of harm required for reversal depends on
whether-that error was preserved in the trial court. When error is preserved .
in the trial court by timely objection, the record must show only "some harm".
Almanza, 686 S.W.2d at 171; Swearingen, 270 S.W.3d at 808. By contrat, unob --
jected-to charge error requires reversal only if it resulted in "egregious —
harm." or substantial Right erroneousjunreliable jury charge,
see T.R.AL'P. 44.2(b) Neal V. State, 256 S.W.3d 264, 278 (Tex.Crim.App.2008).
ERROR IN THE CHARGE

Here, the error in the charge is clear and certain. The charge misstates the
elements of the offense by including within the acts constituting sexual —-
abuse indecency with a child by the touching over the clothing the breasts of
the child. This is clearly in error as the continuous sexual assault of a
child statute specifically removes the touching of the breasts as a predicate
act. A person commits the ptffense of continuos sexual abuse of a young child,
as-applicable here, if (1) during a period that is 30 or more days in durat
ion, the person commits two or more actsx.of sexual abuse';-and (2) at the time
of the commission of each of the acts of sexual abuse, the actor is 17 of age
or older and the victim is a child younger than 14 years of age. TEX. PENAL
CODE ANN. § 21.02(b). An act of sexual abuse includes, as relevant here, an
act of aggravated sexual assualt under TEX. PENAL CODE ANN. 22.02; TEX. PENAL
CODE ANN. §21.02(c)(3). further, an act ofindecency with a child under TEX.
PENAL CODE ANN. 21.11(a)(1) is also consider an actt.of sexual abuse if the
actor committed the offense in a manner other the touching, including touching
through clothing, the breasts of a child. TEX. PENAL CODE ANN. §21.02(c)(3)
(emphasis added).
HARM ANALYSIS:

Petitioner concedes that he did not object to the form of the charge, so the
''egregious harm" standard applies.or the Substantial Right should be applied.

6.
to the Due Process Violation. Reversal is required only if the charge error
was " so egregious and created such harm that the defendant 'has not had a
fair and impartial trial.' "Barrios V. STate, 283 S.W.3d 348, 350 (Tex.Crim.
App. 2009)(citing Almanza, 686 S.W.2d at 171). The Court of Criminal Appeals
has articulated the factors to be consider in making such a determination, "in
determining whether [Petitioner was deprived of a fair and impartial trial,
We review 'the entire jury charge, the state of the evidence, including the —
contested issues and weight of probative evidence, the argument of counsel and
any other relevant information by the record of the trial as a whole.' Taylor
v. State, 332 S.W.3d 483, 487 (Tex.Crim.App.2011)(quoting Almanza, 686 S.W.2d
at 171)." Further the Court of Criminal Appeals has provided guidance as the
kind of error requiring reversal in such cases-. "We will examine 'any part of
the record as a whole which may illuminate the actual, not just theoretical,
harm to the accused.' Vid. at 489-90. "Errors which result in eqregious harm
are those that affect the very basis of the case, deprive the defendant o£ a
right, vitally affect the defensive theory, or make acase for conviction clea
rly and significantly more persuasive. Id. at 490."(quoting Abdnor V. State,
871 S.W.2d 726). Since the jury charge is essential to the jury deliberations,
the charge must include accurate statement of the law. Id at 727. Its absence
impairs the right to trial by jury and therefore, by deffinition, is "calulat-
ed ot injure the rights of the defendant". Id at 731. "It is a Judges Duty to
instruct the Jury on the Law applicable to the case exist - even when the def
ence counsel fails to object to inclusions or exclusions in the charge." (
Taylor, 332 S.W.3d 483 at 484). quoting (Abdnor 871 S.W.2d 727)." When the —
trial Judge fails to correctly charge the jury on applicable Law, the integri
ty of the verdict is called into doubt.

THE ENTIRE JURY CHARGE:

In the instant case, the entire charge is entirely messed up. The first metion
of the offense in the charge is in the paragraph entitled "Accusation". There
, the charge correctly states that Petitioner is accused of committing two or
7.
more acts of sexual abuse. These acts are then listed as indecency with a

child by Petitioner touching the genitals of the child, indecency with a child

by causing the child to touch the genitals of Petitioner, and aggravated sexu

al assault by causing the sexual organ of the child to cause the mouth of Pet

itioner. The next paragraph isentitled "Relevant Statutes". This paragraph

incorrectly states that indecency with a child constitutes an act of sexual

abuse if the defendant engaged in sexual contact byi:to>ucteifig' anus, breast,or

any. part of the genitals of the child, (emphasis added). Next, in the "Appli

cation of Law to Facts" paragraph, the charge list four elements. In the first

element., the indecency allegations are specifically listed correctly as descr

ibed above. However, the jurors are theninstructed that with regard to the

acts of sexual abuse which are entitled indecency with a child. The instructi

ons state that the state can prove those acts if the state proves any touch

ing- including touching of the breast. Quite obviously, this is acomplete mis

sstatement of the law. Touching of the breast is specifically excluded from

the cotinuous sexual assault statute. As expected, 'the jurors were instructed

that they need not agree on the specific acts or the exact dates of such acts.

This statement, while correct, could concievably serve to suppress any confus

ion as to whether they were allowed to consider any acts of touching, as an .--

act of sexual abuse. Also concerning is fact that the definition of indecency

with a 'child is repeated twice in lesser ^included offense paragraph and that

definition section of these lesser included offense/also the touching of brea-

sts. Further, in each of these two lesser included offense, section, the inst-

rutions state that sexual contact or touching may be throuq clothing. Although

with respect to the indecency with a child statute itself these instructions

correct ,.the language regarding the touching of the breast is repeated twice

to indecency with a child and provides added emphasis to the error contained

8.
in the above reference portions ofttheinstructions on continuous sexual assau^

It. Given the repeated reference to touching of the' breasts, as an act of sex

ual abuse, it would be easy for the jurors to be misled that the touching of

the breasts, even through clothing constitutes an act of sexual abuse leading

to continuos sexual assault. At the vey least, the charge, when viewed in its

entirety, is meleading as to whether the jurors could convict Petitioner of
continuous sexual assault for twice touching the breasts of the child through

clothing. Even worse, the application paragraph specifically authorizes such a

conviction. (CR 75-86).

THE STATE OF THE EVIDENCE:

The jury charge error is especially troubling in light of the lack of credible
evidence in this case. As noted in the statement of facts above, these charges

were brought in the midst of a divoce case. The child's mother reported the

offense to police months after she was alllegedly told of the abuse by her
daughter. The then nine (9) year old child was immediately interviewed but
could not or would not give any details of the offense, the interviewer, Lydia
Baily, managed to get her to indicate, through pointing to anatomically corr>-
ect drawings, cryptic writing, andgestures, that her father had touched on her
stomach between her belly button and her vagina, and on her uppper left thigh-
below her butt.(RRV3pl59-69;RRv3pl67; RRv6 State's Exhibit No.21[on whay: appe
ars to be the second page]). However, when pressed to give any sort of detail,
the child told Bailly to ask her mother.(RRv3pl69). The cild gave no dates and
no indication of how many times.(RRv3pl68-69). Altough the child did testify,
she was unable to relate virually any details. The prosecutor was able to pull
out of her with the use of anatomically correct drawings that her dad touch .;•••

her on the breasts, which she called her bad spot, her vagina, which she call

ed her middle spot, and her butt which she reluctantly called her bad spot.
(RRv4pl3-22;RRv6 State's Exhibit No.21). she also testified that on the same

9.
occasion, her father made her touch his penis which she called his middle spot

(RRv4p31). Eventually, she testified that it was in her mother's room on the

bed when her mother was at work.(RRv4p22). She testified that this happen when

she was in kindergarten which would have been proir to September 1,2007. (RRv-

4p20). Which is in relevance to the statute at hand..Her mother testified that

she was in kindergarten in the 2006-2007 school year.(RRV3pl85). As such, as

the jury was instructed, this incident was clearly an extraneous act and could

not be used as substantive evidence on which to base their conviction.(CR77).

Further, this incident was^also prior to the date range alleged in the indict

ment, as welli.as before this statute comes into effect, facts the jury could

have consider in Petitioner's favor.

The only possible substantive evidence of any of the allegations caontain-

ed in the indictment came from the child's mother, Billie Williams, who testis

fied as theuotcry witness. B.Williams testied that after being.caught trying .

to kiss a grilfriend, her daughter told her that she did not see anything with

it because her father "touches her bad spot".(RRV3207). Although in court, the

child identified her breasts as her bad spot and her vagina as her middle bad

spot, B.Williams testified that she believed her daughter was referring to her

vagina.(RRv3p207-08;RRv4pl3,14,19;kRRv6 State's Exhibit No.20). B.Williams

further testified that her daughter told her that he put his mouth on her bad

spot and made her touch his bad spot. (RRv3p208). She testified that she did

not believe her daughter and that she and Petitioner questioned her about it

later that evening when Petitioner came home from work.(RRv3p208-212).

B.Williams said that the child had said her father said "that's how you know

when daddy's happy When the stuff comes out".(RRv3p210). When asked what c
color the"stuff" was, the child stated it was green. (RRv3p211). This cause

B.Willams to further disbelieve the child. (RRV3p211) . She did notr;feporttbhe

10.
supposed outcry to the police and she stayed with Petitioner for

another week. (RRv3p2120'- She testified that she was planning to

leave anywaysbecause the relationship was deteriorating before vh

this incident and she knew he was getting ready to ask them to

leave.(RRv3p212-13)..:' After they separated, she continued to allow

her daughter to stay with Petitioner on weekends. She testified

that over the summer she came to believe her daughter because she

kept telling the something andnever changed.(RRv3p216). B.William

ms said that her daughter gave her details but the only details

that she testified about were that "it" happened once in the past.

ture whike checking the fence line when they were living in Bazem

tte. (RRv3p2160) ; that while tending to the rabitts, he would ,:.j=-,-

place her on a show table in the rabitt pen at their house in Ba^

zette(RRv3p217); and she said it would happen at her Uncle James'

house while they were over there (RRv3p217). She tesified that

the child never told her how many times "it" had happen, how old

she was when it;began;or how old she was when it stopped.(RRv3217

). B.Williams testified that her daughter told her that Petitions

er had touched her through her clothing on her bad spot when .he

would go in her room to kiss her goodnight. Again, in court, the

child referred to her breasts as "bad spot". This happenat the

house in corsicana.(RRv3p217-18). The family lived in Corsicana

from November 2009 until BiWilliams and the kids moved out in vr

June of 2010.(RRC State's Exhibit No.23)24). The only other evid

ence introduced regarding the actual acts alleged were the writte

en statements OF Billie Williams(RRv6 State's Exhibit No.23). In

11.
these statements, B.Williams attempts to give more details and

provide a timeline, but not much is added. All of the evidence,

both testimonial: and from the statements, is summarized below:

Based on the testimony of the child, Bailey, B.Williams and

B.Williams, written' statements, the jury had serval acts to cci,; i

consider.

1. Thouchinq of the breasts/bad spot

a. Testimony of the child-kindergarten-August 2006-June 2007-

prior to statutetand indictment dates

b. Testimony of Bailey-no outcry as to breasts

c. Testimony of B.Williams - in corsicana while kissing qoodniq-

•-t --htiwithin cstatutorvT:andr,indictment<.period

d Statement of B.Williams - State's Exhibit No. 23-

i. "she said he would touch her private areas over clothes

in Corsicana while kissing her qoodnight"

ii. They lived in corsicana from November 2009 through the

first week of June 2010.

Conclusion - There was some evidence admitted throuqh B.Will

iams testimony and written statement that Petitioner touched

the child 'on the breasts over her clothes durinq the alleqed

timeframe and after the passaqe of the statute, but that cvk;

evidence was in dispute of contradicting evidence from the ::h

child's own testimony and the testimony of Lydia Bsiley regar

ding stBeCCAC '•-'• interview .

2. Touching of genitals/bad spot with hand

a . Testimony of child - kindergarten-^ -August 2006-June 2007-r.w :i.
prior to statute and indictment dates and not to be used as
12.
 Substantive evidence on which to base' their conviction.

>. Testimony of Bailey - not an outcry because child only indice

ated touching between the belly button and the vagina, also n

no details, no dates, no way to know when

:. Testimony of B.Williams -

i. in Corsicana while kissing goodnight - with statutory and

indictment period

ii. in general - with no dates or details

3 Also in B.Williams written statement as described above.

?. Conclusion - As above, there was some evidence admitted thro-

;. :• ugh B.Williams.' Testimony and written statement that Petition
ner touched the child on the vagina over hec clothes? during the

allegedatimeframe and after the passage of the statute but ::n

that evidence was in dispute because of contradicting evidene

ce from the child's own testimony and the testimony of Bailey

Lydia regarding the CAC interview.

3. Causing child's hand to touch his penis/bad spot
a. Testimony of child - Kindergarten- August 2006- June 2007-
prior to statutory and indictment dates and not to be used as
substantive evidence on which to base their conclusion

b. Testimony of Bailey - no outcry as to this allegation
c. Testimony of B.Williams

i. In general with no dates

ii. The child provided incorrect details: "he said" that is
what happens when daddyais happy." But when questioned if
~t .:, stuff came out and what color it was she stated "green".

d. This is also in B.Williams', written statement but no dates or

13.
 timeframe reference were provided.

e. Conclusion - While there is some evidence that this allegati^

on occurred there is no timeframe ever reference. Further the

details -provided suggest: that the child could be lying. At wo

worst, there is legally insufficint evidence to support this

allegation and at best, the evidence is in dispute.

4. Aggravated Sexual Assault - Petitioner's mouth contacting c--:

c.-i iehild 's genitals/bad spot

a. Testimony of child - none

b. Testimony of Bailey - none

c. Testimony of B.Williams

i. IN general but no:dates or details

ii. possible connection with a time when they had rabbits in

Bazette (RRv3p219)

d. B.Williams' statement

ji. puts the rabbit timeframe anytime during or after summer

2007 which could before the statutory period although it

is unclear {}RRv6 State's Exhibit No24)

ii. B.Williams' written statement does not specify that any-

happen to the child while in the rabbit barn other than

her father showing her porn magazines. (RRv6 State's

Exhibit No.23)

iii. Also a possible link with a time .when B.Williams said l.'-i

the child talk about an incident at her Uncle's house,

but the link is only provided in the written statement

and it is unclear whether B^Williams is saying that the

child said that her father "licked" her private part

14.
 during that incident or if B.Williams is describing the

sequence of what her child told her next as opposed to

what happen next.(RRv6 State's Exhibit No.23).

iv. The timeframe at the Uncle's house has-been established .

to be Ferbruary or March of 2010, whichnis after the time

frame alleged in the indictment.(RRv6 State's Exhibit No.

24) .

e. Conclusion- this is hotly contested because the child did not

tell the CAC interviewer anything about it nor did she testify

to this incident. Furhter, if the jury believed this incident

occurred in the rabbit pen, then they could have believed it

occurred in 2007, even prior to the effective date of the relt-

evant statute, if that is the case, then the jury could have

also been unconvinced that the evidence established that this

incident-happened within the alleged timeframe at. all because it

is unclear whether B.Wiliams' statement alleges that the genital

mouth contact; took place at the Uncle's house and there is no

timeframe reference given except for (possible, arguably) that

time, and that timeframe is after the timeframe alleged in the

indictment.

Some additional details were provided but they do not seem to

be of any help in determining which alleged acts occurred or when

l.'-.She tolld me "it" happen once in the pasture checking the fene

ce line in Bazette(RRy3p2l6)

2. She said in Bazette that while they were tending to the .;::;
15.
 rabbits they had a show table that he would place her on

(RRv3p217). Later in her testimony, it is arguable that B.;-tnr

Williamsswas referring to this incident when she said "she

described it as he would take her pants off and her panties

off and place her on the table and put his mouth on her bad

spot.(RRv3p219)

3. She talked about going over to his brother's house Uncle

James, while they were away, and "it" would happen over there.;

(RRv3p2170

4. Never did she indicate what the "it" was and it is unclear .n

whether the "it" refers to the oral/genitals contact, the ••:. ...

child touching Petitioner penis, Petitioner touching the child

:">bad spot". (RRv3p216-17)

5. While B.Williams testified that she "knew" that when her daugh

ter said "bad spot", it referred to vagina and penis, when the

child testified, she wanted to use the term "bad spot" for ;•::•;••

breasts, vagina, butt and penis. (RRv4pl3-20,RRv6 state's Exh

ibit No.20 and 21)

6. In her written statement, B.Wi-lliams said that the child told

her she was touchied on her "private areas."(RRv6 State's EXh^

ibit No.23)

7. B.Williams said her daughter did not tell her how may times,

how many times at each location, or how old she was when "it"

happene^,(RRv3p217) .

To summarized, there was contradictory evidence as to each =

potential act of sexual abuse. The child herself provided no
16.
.. , evidence that anything occurred during the timeframe alleged.

By her own testimony, the incident she described happen while

she was in Kindergarten which was prior to September 1st of

2007. The testimony of Bailey does not establish any of the .-. :

alleged acts. Although the child indicated her father had tou-

.•; ched her in the area no one should touch, her marking on the

darwing indicate that he touched her on stomach and on her thrr

_ igh, not on her vagina as;alleged. Although B.William's state

ments and testimony provide some details and dates, it is un .-

clear when and where B.Williams claims the child is alleging

that specific acts happed. It is also in Petitioner's favor c. i

1 that at least one of her details is clearly wrong. The child's

testimony in court that when Petitioner touched her while she

was in Kindergarten, his hand was still'also undermines her .•

crreibility.(RRv4p26,31). The clearest evidence that anything

occurred during the time period alleged was the testimony and

statement of B.Williams regarding the child's statement that

Petitioner touch her on her bad spot/private areas when he

would go in to her room and kiss her goodnight. The problem is

that this allegation:concludes the possibility that the child

was referring to her breast when she said bad spot just as she

did in court. And the jury very well could have believed that

is exactly what she was saying. Further, they could have easi

ly believed that the child was making up the touching of the

.penis incident because of the "green stuff" statement, and : he

there was insufficient evidence that the genital mouth contact

occurred, if at all, during the timeframe alleged, certainly,

17-
in light of the evidence as a whole, the erroneous charge made it

significantly easier for the jury to convict Petitioner.

ARGUMENT OF COUNSEL

Admittedly, there is not much toar'gue with respect to argumen
ts. Counsel for the state did not mention the breasts and instead

focused on connecting the dots between the porn, the marital sex

life of the Petitioner, his special relationship with his daught

er and the;alleged abuse. The Defendant having testied that the e

whole story was false, their argument did not focus on dates spe

cific ;evidence for each incident;,: .but on the idea, understandably

, that it did not happen at all as that is really the only reason

able trial strategy in this type of case.

ENTIRE RECORD

When examining the entire record, there is something important

to "consider. This jury deliberated for seven (7) hours.(Clerk,s

Record[CR]3). They sent out a note saying they were hopelessly

deadlocked. (CR 92). Only after an Allen charge were:; they able to

reach a verdict.(CR90). This was not easy case involving overwhet

lming evidence. The jurors had to work very hard and think for a

long time to find the Defendant guilty. Considering the substant

ial error repeated, over:;and over in the charge, an error that. •!

went to the very basis of the case- what acts constitute the .

offense charged,, and considering the precarious stateof the evidr

ence, and considering the lengthy deliberations, the deadlocked

jury, and the necessity of an Allen Charge,cloariy,Petitioner was
egregiously harmed to the extent that he did not receive a fair

trial. )

18.
 PRAYER FOR RELIEF -

WHEREFORE, PREMISES CONSIDERED, Mr.Williams Prayes this Court

Gant.-his Petition For Discretionary Review, and REVERSE and

REMAND for New Trial.

pfM/ bebentl) Btetrict of Cexaa at gtoiarillo

No. 07-14r00128-CR

MICHAEL DAVID WILLIAMS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 13th District Court
Navarro County, Texas
Trial Court No. D34.123-CR, Honorable James E. Lagomarsino, Presiding

January 29, 2015

MEMORANDUM OPINION

Before QUINN, C J., and HANCOCK and PIRTLE, JJ.

Michael Williams, appellant, appeals his conviction for continuous sexual abuse

of a child. Through two issues, he contends that the trial court erred in its charge to the

jury and for assessing attorney's fees without evidence of appellant's ability to pay. The

State concedes the accuracy of both issues but asserts that neither require reversal of

the judgment. We agree with the State, modify the judgment, and affirm it as modified.
 Background

Appellant was indicted for the following:

[Appellant] ... did then and there, during a period that was 30 or more
days in duration, to-wit: from on or about January 1, 2008 through
January 30, 2010, when [appellant] was 17 years of age or older,
commit two or more acts of sexual abuse against a child younger than
14 years of age, namely, indecency with a child by engaging in sexual
contact with [A.W.] by touching the genitals of [A.W.] with the intent to
arouse or gratify the sexual desire of [appellant], indecency with a child
by causing [A.W.] to engage in sexual contact by causing [A.W.] to touch
the genitals of [appellant] with the intent to arouse or gratify the sexual
desire of [appellant], and aggravated sexual assault by intentionally or
knowingly causing the sexual organ of [A.W.] to contact the mouth of
[appellant]. . . .

Appellant received a jury trial and the jury was charged as follows:

Accusation

The state accuses [appellant] of having committed the offense of
continuous sexual abuse of a young child or young children. Specifically,
the accusation is that [appellant] from on or about January 1, 2008
through January 30, 2010, when [appellant] was 17 years of age or older,
commit two or more acts of sexual abuse against a child younger than 14
years of age, namely indecency with a child by engaging in sexual
contact with [A.W.] by touching the genitals of [A.W.] with the intent to
arouse or gratify the sexual desire of [appellant], indecency with a child
by causing [A.W.] to engage in sexual contact by causing [A.W.] to touch
the genitals of [appellant] with the intent to arouse or gratify the sexual
desire of [appellant], and aggravated sexual assault by intentionally or
knowingly causing the sexual organ of [A.W.] to contact the mouth of
[appellant].

Under the heading, Relevant Statutes, the trial court included the

following:

Indecency with a child is an act of sexual abuse if the state proves,
beyond a reasonable doubt, three elements. The elements are that—

1. [appellant] engaged in sexual contact with another person by—
 a. any touching of the anus, breast, or any part of the
genitals of the person; or
b. any touching of any part of the body of the person
with the anus, breast, or any part of the genitals of
[appellant]. . .

Then in the paragraph entitled Application of Law to Facts, the trial

court charged the jury on the following:

You must determine whether the state has proved, beyond a reasonable
doubt, four elements. The elements are that -

1. [appellant] . . . from . . . January 1, 2008 through January 30, 2010,
when [appellant] was 17 years of age or older, commit two or more acts
of sexual abuse against a child younger than 14 years of age, namely,
indecency with a child by engaging in sexual contact with [A.W.] by
touching the genitals of [A.W.] with the intent to arouse or gratify the
sexual desire of [appellant], indecency with a child by causing [A.W.] to
engage in sexual contact by causing [A.W.] to touch the genitals of
[appellant] with the intent to arouse or gratify the sexual desire of
[appellant], and aggravated sexual assault by intentionally or knowingly
causing the sexual organ of [A.W.] to contact the mouth of [appellant].

The first and second alleged acts of sexual abuse are that [appellant]
engaged in indecency with a child. Indecency with a child is an act of
sexual abuse if the state proves, beyond a reasonable doubt, three
elements. The elements are that—

a. [appellant] engaged in sexual contact with [A.W.] by—

(1) any touching of the anus, breast, or any part of the
genitals of [A.W.]; or

(2) any touching of any part of the body of [A.W.] with the
anus, breast, or any part of the genitals of [appellant]. . . .

The jury convicted appellant of the charged offense. He now appeals the

conviction and the award of attorney's fees.
 The Law—Jury Charge

Appellant contends that the jury charge was wrong because it improperly

included touching of the "breast" as a way for him to be convicted of continuous

sexual abuse. The complaint, however, was not raised at trial. The State

agrees that the inclusion was error, but because it was not raised below, it would

require proof of egregious harm to warrant reversal. We overrule the issue.

Because the error was not first asserted below, we may reverse the

judgment only if it caused appellant to suffer egregious harm. Ngo v. State, 175

S.W.3d 738, 743-44 (Tex. Crim. App.2005) (stating that when the defendant fails

to preserve error at trial, the record must demonstrate "egregious harm" to

warrant reversal). To rise to that level, the harm must affect the very basis of

the case, deprive the defendant of a valuable right, vitally affect the defensive

theory, or make a case for conviction clearly and significantly more persuasive.

Id. at 750. In other words, it must be of the ilk that denied the appellant a fair

and impartial trial. Id. at 752. In determining whether the harm rose to such a

level here, we review 1) the entire charge, 2) the state of the evidence, including

the contested issues and the weight of the probative evidence, 3) the arguments

of counsel, and 4) any other relevant information revealed by the record. Id. at

750 n. 48.

While it is true that the jury charge mentioned the touching of breasts as a

form of indecency, the application paragraph actually described the indecent

acts of which appellant was accused as the touching of genitals, "namely,

indecency with a child by engaging in sexual contact with [A.W.] by touching the
genitals of [A.W.] with the intent to arouse or gratify the sexual desire of

[appellant], indecency with a child by causing [A.W.] to engage in sexual contact

by causing [A.W.] to touch the genitals of appellant. (Emphasis added). And

because we must presume that jurors follow the court's instructions, Thrift v.

State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005), we can conclude that the

jury was not free to simply pick and choose the type of indecent act upon which

conviction could be founded.

To the foregoing, we add the evidence of guilt. Evidence of record

indicates that appellant touched the child's breasts. Yet, ample evidence also

revealed that he touched her genitalia and anus and he had her touch his penis.

And, it cannot be said that an improper means of convicting appellant was

somehow improperly interjected via the evidence of breast touching; this is so

because extraneous bad acts like that were admissible to illustrate or explain the

nature of the relationship between the child and appellant. See Tex. Code Crim.

Proc ann. art. 38.37 (West Supp. 2014-2015). Simply put, the jury had before

it more than enough evidence upon which to conclude, beyond reasonable

doubt, that the indecency committed by appellant involved the touching of

genitalia.

Furthermore, both the State and appellant focused upon the touching of

genitalia (as opposed to the touching of the child's breasts) in their closing

arguments. And, while the State also alluded to appellant touching his

daughter's breasts, it was done in passing, with little repetition, and in the

context of all the bad acts which his daughter accused him of committing.
 Again, for there to be egregious harm, the error had to affect the very

basis of his case, deprive him of a valuable right, or vitally affected a defensive

theory. Considering the jury charge as a whole, the contested evidence, and

closing arguments of counsel, we conclude that any harm appellant may have

experienced due to the inaccurate charge was not of that ilk. It did not and does

not rise to the level of depriving him of a fair and impartial trial.

Attorney's Fees

In his second issue, appellant contends the trial court erred by ordering

him to pay attorney's fees. The State agrees and requests that we modify the

judgment by removing the obligation. The latter is the appropriate way to correct

the mistake. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013).

Thus, we sustain the issue and modify the judgment to redact from it the

obligation imposed on appellant to pay attorney's fees arising from the services

provided by his appointed counsel.

The judgment is affirmed as modified.

Per Curiam

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