ACCEPTED
06-15-00157-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
11/3/2015 10:40:55 AM
DEBBIE AUTREY
CLERK
NO. 06-15-00157-CR
IN THE COURT OF APPEALS FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
SIXTH APPELLATE DISTRICT OF TEXAS
11/3/2015 10:40:55 AM
DEBBIE AUTREY
AT TEXARKANA, TEXAS Clerk
NICHOLAS EDWARD AYERS,
Appellant
VS.
THE STATE OF TEXAS,
Appel lee
Appealed from the 2761h Judicial District Court
Marion County, Texas
Trial Court Cause No. F14576
BRIEF OF APPELLANT
Submitted by:
James P. Finstrom
Counsel for Appellant
P.O. Box 276
Jefferson, Texas 75657
903-665-7111
Fax: 903-665-7167
State Bar #07038000
APPELLANT DOES REQUEST ORAL ARGUMENT
IDENTITY OF PARTIES AND COUNSEL
Pursuant to T.R.A.P. 38.1(a)
Appellant: Nicholas Edward Ayers
Institutional Division of Texas Department
of Criminal Justice
Joe F. Gurney Unit
1835 FM 3328
Tennessee Colony, Texas 75803
Counsel for Appellant at trial:
Hon. Rick Berry
111 West Austin Street
Marshall, Texas 75670
Counsel for Appellant on appeal:
Hon. James P. Finstrom
P.O. Box 276
Jefferson, Texas 75657
State's Counsel at trial and on appeal:
Hon. Angela Smoak, County Attorney
102 West Austin Street
Jefferson, Texas 75657
Trial Judge:
Hon. Robert Rolston, Judge,
2761h Judicial District Court
Marion County, Texas
2
TABLE OF CONTENTS
Pursuant to T.R.A.P. 38.1(b)
Page
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 5
STATEMENT OF THE CASE 6
ISSUES PRESENTED 6
ISSUE NO. 1: THE STATE COMMITTED FUNDAMENTAL
ERROR BY MAKING A PUNISHMENT ARGUMENT
OUTSIDE THE EVIDENCE.
ISSUE NO. 2: APPELLANT DID NOT RECEIVE EFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE COUNSEL
DID NOT OBJECT TO THE STATE'S PUNISHMENT
ARGUMENT WHICH WAS LARGELY OUTSIDE THE
EVIDENCE.
STATEMENT OF FACTS 7
ISSUE NO. ONE (Restated) 8
IS THE STATE'S PUNISHMENT ARGUMENT OUTSIDE
THE EVIDENCE FUNDAMENTAL ERROR?
SUMMARY OF THE ARGUMENT 8
ARGUMENT 8
3
ISSUE NO. TWO (Restated) 10
DID APPELLANT RECEIVE EFFECTIVE ASSISTANCE OF
COUNSEL WHEN COUNSEL DID NOT OBJECT TO THE
ARGUMENT MADE THE BASIS OF ISSUE NO. ONE IN THIS
CASE?
SUMMARY OF THE ARGUMENT 10
ARGUMENT 10
PRAYER 11
CERTIFICATE OF SERVICE 12
CERTIFICATE OF COMPLIANCE 13
4
INDEX OF AUTHORITIES
Pursuant to T.R.A.P. 38.1(c)
Cases: Page
Johnson v. State, 233 S.W.3d 109
(Tex.App. Houston 14th Dist. 2007, no hist.) 9
Peak V. State, 57 S.W.3d 14 8
(Tex.App. Houston 14th Dist. 2001)
Vaughn v. State 888 S.W.2d 62
(Tex.App. -- Houston 1st Dist. 1994, p.d.r. granted
and affirmed, 931 S.W.2d 564 (Tex.Crim.App.
1996) 11
Washington v. State.16 S.W.3d 70 8
(Tex.App. Houston 1st Dist. 2000, p.d.r. ref'd.)
Williams v. State, S.W.3d 11
2015 WL 5158449 (2015)
Wilson v. State, 938 S.W.2d 57 (Tex.Crim.App. 2002) 8, 9
Statutes:
Article 62.051(a), Code of Criminal Procedure 12
Other Materials:
Tex. Jur 3d, Criminal Procedure: Trial, Sec. 480 8
All references to Texas statutes, rules, etc. are to the latest
edition published by West Publishing Company, unless otherwise
noted.
5
STATEMENT OF THE CASE
Pursuant to T.R.A.P. 38.1(d)
Appellant was tried in a bench trial on two cases of indecency
with a child, being the instant case and Appellate Cause Number 06-
15-00156-CR, on his plea of guilty to the indictment in each case.
Appellant's pleas of guilty in each case were entered on August 5,
2015. (2 RR 1-33) Evidence on the pleas was heard on August 27,
2015. (3 RR 1-58) The court found Appellant guilty on each case
and assessed an eighteen (18) year sentence in the Institutional
Division of the Texas Department of Criminal Justice on each case on
August 27, 2015 to run concurrently. (3 RR 65-66) Appellant gave
timely notice of appeal September 23, 2015. (CR 98) Counsel was
appointed to represent Appellant on appeal on September 21, 2015.
(RR 97)
ISSUES PRESENTED
Pursuant to T.R.A.P. 38.1(e)
ISSUE NO 1: IS THE STATE'S PUNISHMENT ARGUMENT
OUTSIDE THE EVIDENCE FUNDAMENTAL ERROR REQUIRING
REVERSAL OF APPELLANT'S CONVICTION?
ISSUE NO. 2: DID APPELLANT RECEIVE EFFECTIVE
ASSISTANCE OF COUNSEL WHEN COUNSEL DID NOT OBJECT
TO THE ARGUMENT MADE THE BASIS OF ISSUE NO. 1 IN THIS
CASE.
6
STATEMENT OF FACTS
Pursuant to T. R.A. P. 38.1 (f)
The State called seven witnesses and Appellant did not testify
but called one witness.
Martha Dyles and Kimberly Lara testified to the predicate for
the admission into evidence of a DVD in each of the two cases of the
Child Advocacy Center interview of the child named in each
indictment. (3 RR 8-13)
Lauren Whitehead, who was employed with the jail at the
Marion County Sheriff's Department, testified that Appellant had
possession of contraband in his cell block during his confinement in
jail consisting of peach hooch which smelled like alcohol, a Tramadol
pill, paper clips which had been made into needles, and ear phones
with a yellow substance in them. (3 RR 14-16)
Vera Humphrey, Trelena Ives, Christi McWilliams, and Taylor
Quinn McWilliams testified to the circumstances surrounding the
outcry by the child victim in each of the two cases. (3 RR 18-34)
Appellant called his step-father, Virgil T. Allen, who testified as
a character witness for him.
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ISSUE NO. ONE (Restated)
IS THE STATE'S PUNISHMENT ARGUMENT OUTSIDE THE
EVIDENCE FUNDAMENTAL ERROR REQUIRING REVERSAL OF
APPELLANT'S CONVICTION?
SUMMARY OF THE ARGUMENT
Pursuant to T. R.A. P. 38.1 (g)
Counsel for the State made a very strong punishment conduct
about matters outside the evidence and record in this cause which
should not be deemed harmless error and requires reversal of
Appellant's conviction.
ARGUMENT
Pursuant to T.R.A.P. 38.1(h)
Issue No. 1
Proper jury argument is delineated into four categories: (1)
summation of the evidence; (2) reasonable deductions from the
evidence; (3) responsive arguments; and (4) pleas for law
enforcement. Tex. Jur 3d, Criminal Procedure: Trial Sec. 480.
Appellate courts should not hesitate to reverse when it appears that
the State has departed from one of these areas in argument and has
engaged in conduct calculated to deny the accused a fair and
impartial trial. Wilson v. State, 938 S.W.2d 57 (Tex.Crim.App. 2002);
Washington v. State.16 S.W.3d 70 (Tex.App. Houston 1st Dist. 2000,
p.d.r. ref'd.); Peak v. State, 57 S.W.3d 14 (Tex.App. Houston 14th
8
Dist. 2001 ). The test to consider whether improper argument
constitutes reversible error is whether the argument violates a statute;
injects new and harmful facts into the case; or is extreme or
manifestly improper, harmful, and prejudicial to the rights of the
accused. Wilson v. State, supra. The applicable standard of review
is whether, in light of the record as a whole, there is a reasonable
possibility that the improper argument was so prejudicial as to deprive
the defendant of a fair and impartial trial. Johnson v. State, 233
S.W.3d 109 (Tex.App. Houston 141h Dist. 2007, no hist.)
The State's argument in this case was almost entirely totally
outside the record and based on a letter Appellant had written to the
Court which was not offered or admitted into evidence in this cause.
No objection was made to the argument, but it should be considered
as fundamental error because of the nature of the argument, referring
to Appellant as a person "who has an addiction to pornography" (3
CR 59), and that "he never says he's sorry" (3 CR 61 ), and "he tells
the Court that he didn't see a reaction from the children, so it must be
okay" (3 CR 60), and that "he even mentions my very own mother in
this letter to the Court." (3 CR 60). The harm can been seen in the
length of the sentence given Appellant by the Court. Appellant's
9
conviction should be reversed because the argument appears to
have been asking for serious punishment for matters outside the
record. The letter is in the clerk's record at CR36, because it was
filed by the Clerk although it was not admitted as evidence in the
case. The argument is a very strong argument and should not be
considered harmless error.
ISSUE NO. TWO
(Restated)
DID APPELLANT RECEIVE EFFECTIVE ASSISTANCE OF
COUNSEL WHEN COUNSEL DID NOT OBJECT TO THE
ARGUMENT MADE THE BASIS OF ISSUE NO. ONE IN THIS
CASE.
SUMMARY OF THE ARGUMENT
Pursuant to T. R.A. P. 38.1 (g)
Issue No. 2
Appellant's trial counsel did not object to the argument outside
the evidence made the basis for the argument in Issue No. 1 and
Appellant did not receive effective assistance of counsel.
ARGUMENT
Appellant's counsel at trial did not object to the State's
argument made the basis of Issue No. 1 above. Appellant can
conceive of no trial strategy in this case that would justify trial
counsel's failure to object to the argument.
10
This Court recently dealt with the issue of fundamental or
egregious error in a criminal trial and the failure of counsel to object
to the error in Williams v. State, S.W.3d , 2015 WL
5158449 (2015). In Williams, this Court held that an appellate court
will not reverse based on an unpreserved claim of charge error
unless the defendant suffered harm so egregious that he was denied
a fair and impartial trial because the error affected the very basis of
the case or deprived the defendant of a valuable right or vitally affect
a defensive theory. While the factual background of charge error
may differ from argument error, Appellant urges that the error
presented in his case affect the very basis of the punishment given
him by the trial court. Where trial counsel fails to object to the
State's argument, Appellant urges that it is clear that the trial court
would have committed error in refusing to sustain an objection to the
argument that is clearly outside the record and prejudicial to
Appellant. See Vaughn v. State 888 S.W.2d 62 (Tex.App. -- Houston
151 Dist. 1994, p.d.r. granted and affirmed, 931 S.W.2d 564 (1996)
PRAYER
Upon the issues presented, Appellant, Nicholas Edward Ayers
prays that this Court reverse the judgment of the trial court and
11
remand the case to the trial court for a new punishment hearing, and
for such other and further relief to which he may be entitled.
Respectfully submitted,
ls/James P. Finstrom
James P. Finstrom
Counsel for Appellant
202 S. Marshall,
P.O. Box 276
Jefferson, Texas 75657
903-665-7111
Fax: 903-665-7167
Texas Bar #07038000
CERTIFICATE OF SERVICE
I certify that I have delivered a true copy of this brief to Hon.
Angela Smoak, counsel for the State, and to Appellant by United
States mail, first class postage prepaid, at the Joe F. Gurney Unit,
1385 FM 3328, Tennessee Colony, Texas 75803, on this 3rd day of
November, 2015.
ls/James P. Finstrom
James P. Finstrom
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CERTIFICATE OF COMPLIANCE
I certify that Appellant's Brief filed electronically on this 3rd day
of November, 2015 complies with Tex. R. App. P. 9.4(i)(2)(B). This
Brief contains 1, 731 words.
/s/ James P. Finstrom
James P. Finstrom
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