ACCEPTED
06-15-00154-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/16/2015 3:48:31 PM
DEBBIE AUTREY
CLERK
NO. 06-15-00154-CR
FILED IN
************** 6th COURT OF APPEALS
TEXARKANA, TEXAS
10/19/2015 8:47:00 AM
IN THE COURT OF APPEALS DEBBIE AUTREY
Clerk
SIXTH APPELLATE DISTRICT OF TEXAS
TEXARKANA TEXAS
**********
ARTIS LADELL WILLIAMS,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
**********
Appealed from the 71st District Court
Harrison County, Texas
Trial Court No. 15-0053X
__________________________________________________________________
BRIEF OF APPELLANT
__________________________________________________________________
EBB B. MOBLEY
State Bar # 14238000
Attorney at Law
422 North Center St.-Lower Level
P. O. Box 2309
Longview, TX 75606
Telephone: (903) 757-3331
Facsimile: (903) 753-8289
ebbmob@aol.com
ATTORNEY FOR APPELLANT
NO.06-15-00154-CR
ARTIS LADELL WILLIAMS,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
__________________________________________________________________
IDENTITY OF PARTIES AND COUNSEL
Pursuant to T.R.A.P. 38.1(a)
__________________________________________________________________
Appellant: ARTIS LADELL WILLIAMS Gurney Unit - TDCJ-ID
Inmate #2023158 Palestine, Texas 75803
Appellant's CRAIG A. FLETCHER 110 South Bolivar #210
trial counsel: Attorney at Law Marshall, Texas 75670
State's trial SHAWN ERIC CONNALLY P.O. Box 776
counsel: MICHAEL NORTHCUTT JR. Marshall, Texas 75671
Assistant District Attorneys
Trial Judge: HON. BRAD MORIN 200 West Houston Street, Suite 219
71st District Judge Marshall, Texas 75670
Appellant's EBB B. MOBLEY P. O. Box 2309
counsel on appeal: Attorney at law Longview, TX 75606
State's counsel COKE SOLOMON P.O. Box 776
on appeal: Criminal District Attorney Marshall, Texas 75671
Page 1 of 11
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ISSUE NUMBER ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Did the trial court err in the manner of submission of the parole law
charge in the punishment charge to the jury?
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8
ISSUE NUMBER TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Did the trial court err in assessing payment of court appointed counsel
fees against the appellant, an indigent person?
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Page 2 of 11
INDEX OF AUTHORITIES
Cases
Almaza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (opinion on reh’g) . . . .7
Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex.Crim.App. 2011) . . . . . . . . . . . . . .9
Cates v. State, 402 S.W.3d 250, 252 (Tex.Crim.App. 2013) . . . . . . . . . . . . . . . . . . . . .10
Hill v. State, 30 S.W.3d 505, 509 (Tex.App. - Texarkana 2000, no pet.) . . . . . . . . . . . 8
Loun v. State, 273 S.W.3d 406 Tex.App. - Texarkana 2008, no pet.) . . . . . . . . . . . . . .7
Martin v. State, 405 S.W.3d 944, 946-47 (Tex.App. - Texarkana 2013, no pet.) . . . .10
Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App. 2010) . . . . . . . . . . . . . . . . . . 9,10
Rogers v. State, 38 S.W.3d 725 (Tex.App. - Texarkana 2001, pet. ref’d) . . . . . . . . . . .7
Skinner v. State, 956 S.W.2d 532, 544 (Tex.Crim.App. 1997) . . . . . . . . . . . . . . . . . . . .7
Villareal v. State, 205 S.W.3d 103 (Tex.App. - Texarkana 2006)
(pet. dismissed, untimely filed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Wilder v. State, No. 06-15-00091-CR, slip op. 9-22-15 . . . . . . . . . . . . . . . . . . . . . . . .10
Statutes
Code of Criminal Procedure Article 26.05(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Code of Criminal Procedure Article 37.07(4)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Code of Criminal Procedure Article 37.07(4)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Code of Criminal Procedure Article 37.07(4)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
All references to Texas statutes, rules, etc. are to the latest edition published by
West Publishing Company, unless otherwise indicated.
Page 3 of 11
STATEMENT OF THE CASE
This is an appeal from a conviction for possession of methamphetamine and
possession of cocaine. ARTIS LADELL WILLIAMS was tried and convicted after his
open plea of guilty in the 71st District Court in Harrison County, Texas. He was then
sentenced by a jury to 10 years imprisonment for possession of methamphetamine and
15 years imprisonment for possession of cocaine, with the sentences to run
concurrently. CR-154.
For clarity, THE STATE OF TEXAS will be referred to as "the State", and
ARTIS LADELL WILLIAMS will be referred to as "Defendant" or "Appellant."
ISSUES PRESENTED
ISSUE NUMBER ONE
Did the trial court err in the manner of submission of the parole law charge in the
punishment charge to the jury?
ISSUE NUMBER TWO
Did the trial court err in assessing payment of court appointed counsel fees
against the appellant, an indigent person?
Page 4 of 11
STATEMENT OF FACTS
A Harrison County grand jury indicted ARTIS LADELL WILLIAMS on
February 26, 2015, for two counts of possession of drugs. CR-8.
Count I alleged possession of methamphetamine in an amount of more than
one gram but less than four grams, a third degree felony.
Count II alleged possession of cocaine in an amount more than four grams but
less than 200 grams, a second degree felony.
Trial commenced on September 8, 2015, with voir dire. The defendant entered
a plea of “not guilty.” 6 RR 12.
After testimony of two State witnesses, some 2 ½ hours into the trial, the
defendant changed his plea to “guilty” on each count after admonishments by the trial
judge. 6 RR 72-74.
The punishment phase of the trial started on September 9, 2015. The State
offered certified copies of ten different misdemeanor offenses. 8 RR SX 61-72. The
defendant called six witnesses to support his application for community supervision
from the jury. During its deliberations the jury sent out a note inquiring whether
sentences would run concurrently or consecutively. CR-138. The trial judge
declined to directly respond to the note and referred the jury back to the charge. CR-
139. In its verdict the jury did not assess community supervision. Rather the jury
assessed 10 years for possession of methamphetamine and 15 years for possession of
cocaine. CR145-146.
The defendant appeals his sentences and the assessment of court-appointed
counsel fees.
Page 5 of 11
ISSUE NUMBER ONE
Did the trial court err in the manner of submission of the parole law charge in
the punishment charge to the jury?
SUMMARY OF THE ARGUMENT
The trial court’s submission of a modified instruction on parole law confused
the jury and allowed it to speculate on the effect of parole law on the total length of
time of incarceration of the defendant.
ARGUMENT AND AUTHORITIES
The punishment charge at issue begins: As to Count I and II: under the law .
. . . . CR-142. The punishment charge was phrased in terms of Code of Criminal
Procedure Article 37.07(4)(c), as Count I involved a third degree felony and Count
II, a second degree felony. The defendant made no objection to combining the two
counts for one parole law instruction. 7 RR 89. The statute provides that . . . “the
court shall ( emphasis added) charge the jury in writing as follows: . . . .” in Sections
4(a),(b), and (c) of Art. 37.07. There is no provision for the trial judge to edit, alter,
modify or consolidate the charge in any way.
The State’s opening argument on punishment called for a 10 year sentence for
each count. 7 RR 93. No mention was made of parole.
Defense argument on punishment made no mention of parole, and involved
a plea for probation in terms of “a second chance.” 7 RR 97-98.
In closing argument on punishment the State’s attorney faulted the defendant
for not accepting responsibility and asked for a 10 year and a 15 year sentence. 7 RR
105. No mention was made of parole.
Page 6 of 11
The jury retired for deliberation, and eventually sent out a note inquiring
whether the sentences would run concurrently or consecutively. CR-38. The trial
court did not directly answer the note. He simply referred the jury to the charge as
given. CR-139, 7 RR 107. The defendant made no objection to the response or the
summary procedure used to respond to the jury note.
The punishment verdicts included a 10 year sentence for possession of
methamphetamine and a 15 year sentence for possession of cocaine. Probation was
specifically rejected for each count. CR 145-146.
STANDARD OF REVIEW
Since Appellant did not object to the punishment charge nor the judge’s
response to the jury note, his appellate complaint may be sustained only if he can
show egregious harm, i.e., harm so great that he was denied a fair and impartial trial.
See Skinner v. State, 956 S.W.2d 532, 544 (Tex.Crim.App. 1997). Almaza v. State,
686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (opinion on reh’g). A punishment
charge that modified the statutory parole law charge was found to be in error that
resulted in some harm. Rogers v. State, 38 S.W.3d 725 (Tex.App. - Texarkana 2001,
pet. ref’d); Loun v. State, 273 S.W.3d 406 Tex.App. - Texarkana 2008, no pet.).
It is apparent that the jury was concerned with the application of the parole law.
But the answer of the judge provided no guidance. The jury then assessed the
maximum sentence ( 10 years) on Count I and a substantial sentence (15 years) on
Count II. It seems reasonable to conclude that in the absence of a substantive
response to its note regarding parole, the jury continued to consider parole during its
assessment of punishment.
Because the jury obviously had been considering the parole law on the
defendant’s punishment, because the record fails to demonstrate that the trial court
Page 7 of 11
followed the proper procedural steps in responding to the jury note, and because the
jury assessed maximum and substantial sentences, the trial court’s erroneous
submission of a modified parole instruction resulted in some harm. See Villareal
v. State, 205 S.W.3d 103 (Tex.App. - Texarkana 2006) (pet. dismissed, untimely
filed); Hill v. State, 30 S.W.3d 505, 509 (Tex.App. - Texarkana 2000, no pet.).
The judgment should be reversed and the case remanded for a new trial on
punishment.
Page 8 of 11
ISSUE NUMBER TWO
Did the trial court err in assessing payment of court appointed counsel fees
against the appellant, an indigent person?
SUMMARY OF THE ARGUMENT
No evidence in the record supports assessment of court appointed counsel
fees against ARTIS LADELL WILLIAMS, an otherwise indigent person.
ARGUMENT AND AUTHORITIES
The judgment at bar reflects assessment of $4211.25 in attorney fees against
appellant. CR-154. Appellant at all times has been represented by court appointed
counsel for both trial and appeal.
Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court
has the authority to order the reimbursement of court appointed attorney fees only if
“the court determines that a defendant has financial resources that enable him to
offset in part or in whole the costs of the legal services provided, including any
expenses and costs.” The defendant’s financial resources and ability to pay are
explicit critical elements in the trial court’s determination of the propriety of ordering
reimbursement of costs and fees of legal services provided. Armstrong v. State, 340
S.W.3d 759, 765-66 (Tex.Crim.App. 2011) (quoting Mayer v. State, 309 S.W.3d 552,
556 (Tex.Crim.App. 2010).
There is no evidence in the record at bar that appellant’s indigent status
changed from the time of the initial appointment of trial counsel through the
punishment phase of trial. Code of Criminal Procedure Art. §26.05(g) requires a
Page 9 of 11
present determination of financial resources and does not allow speculation about
possible future resources. See Cates v. State, 402 S.W.3d 250, 252 (Tex.Crim.App.
2013); see also Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App. 2010); Martin
v. State, 405 S.W.3d 944, 946-47 (Tex.App.-Texarkana 2013, no pet.), and Wilder v.
State, No. 06-15-00091-CR, slip op. 9-22-15.
The trial court judgment should be modified to delete the assessment of
appointed counsel fees.
Page 10 of 11
PRAYER
Upon the issues presented, it is submitted that this case should be reversed and
remanded for a new trial on punishment; alternatively, the judgment should be
modified to delete any assessment of attorney fees.
Respectfully submitted,
EBB B. MOBLEY
Attorney at Law
422 North Center St - Lower Level.
P. O. Box 2309
Longview, TX 75606
Telephone: (903) 757-3331
Facsimile: (903) 753-8289
ebbmob@aol.com
/s/ Ebb B. Mobley
EBB B. MOBLEY
State Bar # 14238000
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I certify that this brief contains 1792 words according to the computer
program used to prepare the document.
/s/ Ebb B. Mobley
EBB B. MOBLEY
CERTIFICATE OF SERVICE
A copy of this brief was provided to Coke Solomon, Harrison County District
Attorney, P.O. Box 776, Marshall, Texas 75671 on the 16th day of October, 2015, by
e-file.
/s/ Ebb B. Mobley
EBB B. MOBLEY
Page 11 of 11