PD-1288-15
PD-1288-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/28/2015 4:22:05 PM
Accepted 9/30/2015 2:30:25 PM
IN TITE ABEL ACOSTA
CLERK
COURT OF CIITMINAL APPEALS OF TEXAS
THOMAS SMALLWOOD, JR. S
APPELLANT s
$
V. s No.
s
$
THE STATE OF TEXAS, $
APPELLEE $
s$s
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
$s$
MICHAEI- LOGAN WARE
300 Burnett Street
Suite 160
Fort WorthoTX 76102
Telephone: 817/ 338 - 4100
September 30, 2015 Telecopier: 817/ 698- 0000
Texas State Bar Number:20864200
ATTORNEY FOR APPELLANT
IDIIN TI TIES O F I'AILTI ES AN_D--C*8!T{S]'L,
Ap¡rellant: 'l"homas Jefferson Srnallwood Jr.
Represented by: Michael Logan War.e (on appeal)
300 Burnett Street
Suite 160
Folt Worth, TXl6102
Appellee: The State of Texas
Represented by: Sharen Wilson, Criminal Distríct Aftorney
Debra A. Windsor, Assistant District Atton.rey (or.r
appeal)
401 W. Belknap
Fort Worth, TX16196
Trial Judge: The Honorable George William Gallagher-
Presiding Judge
396th Judicial District Court
Tarrant County, Texas
TAIìI,E OF CONTENTS
PAGE
INDEXOFAUTI{ORITIES. ..... iv
STATEMENT IIËGARDING ORAI- ARGUMENT I
STATEMENT OI" THE CASE . I
STA]'EMENT OIì PROCEDURAI- I]ISTORY 2
GROUNDS FOR REVIEV/ 2
ARGUMENT SUPPORTING GROUNDS FOR REVIEW J
CONCLUSION 21
CERTIFICATE OF COMPLIANCE 22
CERTIFICATE OF SERVICE 22
COURT OF APPEALS' OPINION (April 30, 20l s). . .. . APPENDTX A
COURT OF APPEALS ORDER DENYING MOTION FOR REHEARING
6,2015
(August .. ...
APPENDIX
COURT OF APPEALS OPINION SUBSTITUTING THI] APRIL 30,2015
OPINION (August 6,2015 . ...
APPENDIX C
COURT OF APPEALS ORDER DENYING MOTION FOIT RIìIIEARING
(August28,2015 .... AppENDtX D
INDEX OF AIJTHORITIES
Cases
Ansari v. State, 20l 5 Tex.App.LEXIS Sl g2 (Tex.App.-San Antoni o 20l 5) . . . . . 5
Anguish v. State,99l S.W.2d 883 (Tex.App.-llouston [1,t Dist]
1999, pet. refd) . .. .. 19_20
Blount v. State, 542 S.W.2d 164 (Tex.Crim .App. 1976) . . 17_20
Devínev. Srate,786 S.W.2d 268 (Tex.Crim.App. 1989) .. .. . 20
F'rancisv.StaÍe,36S.W.3d121(Tex.Cr.im.App.2000) ...... 5
I{entandez v. Sta t e, 20 I 3 Tex.App.LEXIS 929 I ('Iex.App. -Waco,
Ju1y25,2013)2000) .... t9
Jacksonv. Vírgínia,443 U.S.307 (1979) .......... 5
McDowell v. State,235 S.W.3d 294 (Tex.App.-Texarkana 2007,no pet.) . . . . . 20
Potíer v. Sratu, 2012 Tex.App.LEXlS 9473 (Tex.App.-Houston [1't Dist],
Nov. 15,2012,pet. dismissed(unpublished) .......20
Ramirez v. StaÍe,336 S.W.3d 846 (Tex.App.-Amarillo 2011,per..ref d) . . . . tS_tS
Smithv. State,949 S.W.2d333 (Tex.App.-Tyler 1996,pet.ref d) . ... .......20
Codes. Articles" Other
BlacklawDictionary,4'r'Edition .........17
TexasPenal Codeg22.021(a)(Z)(a)(ii) .... t5
Texas Penal Code 622.02l (aX2XAXiv) ... . 15
STAI.II]MTNTI-T-EGALì.D_LNGORAT,AIIGUMENT
'I'his case involves
cotnplex issues of fact and law.'l'he undersigned counsel believes
fhis CouI't's understancling of the relevant làctual and legal issues could be substantially
enhanced by oral argurnent. Appellanf requests oral argument.
STATEMENT OF THE CASE
Appellant pled not guilty to all counts of an eighteen count indictment, alleging
sexual assault and aggravated sexual assault, on various dates against the same
complainant.r Prior to jury selection, the State waived nine of the eighteen counts.
The remaining nine counts consisted ofthlee counts ofsexual assault and six counts
of aggravated sexual assault. The six aggravated counts alleged six discrete sexual
assaults purpolting to have occurred on various dates from August 2012 through
Novernber 2012. The agglavating eìernent of each of the six discrete aggravated
counts is alleged in identical statutory language, threatening to cause imrninent "death
or serious bodily".
The three discrete non-aggravated counts are alleged to have each occurred in
the niddle of tl.ris tirne period, in October 2012.
On Octobe¡ 24,2013, the jury convicted Appellant on all nine discr.ete counts
rThis was, in
fact, a reindictment. l'he original indictruent was fil'teen counts and contained no
"aggravating" language. Iloth indictments contained one counl ofindecency with a child which
was waived by the state (Clerk's Tr. at pp. 6-9 &. 12-14).
On October' 25,2013, the tlial couú sentenced Appellant to six lìfìy-year sentences,
on the aggravated counts, and three twenty-year sentences on the non-aggravated
counts. All sentences to lun concul.rently. Appellant tirnely appealed.
STATEMENT OF PROCEDURAL IIISTORY
ln an opinion, designated forpublication, handed down on April 30, 2015, the
Fort vy'orth court of Appeals affirmed Appellant's convictions on all nine counts.
Smallwood, Jr. y. State,20l5 Tex.App.LEXIS 4457 (Tex.App.ìior1 Worlh April 30,
2015). Appellanl liled a timely Motion for Rehearing. Or.r August 6,2015,the Court
of Appeals withdlew its original opinion and issued a new published opinion, again
affilrring all nine of Appellant's convictions. Smallwood, Jr. v. State, 2015
Tex.App.LEXIS 825 3 (Tex.App.Fort'ùy'oúh August 6, 20 1 5).
Appellant's tirnely Motion for.Rehearing on the Court's second published
opinion was denied on August 28,2015. This petition was then timely filed with the
Clerk of the Court of Criminal Appeals, to wit on September 28,Z0lS.
GROUND FOR REVIE\il
GROUND FOR REVIEW
THE COURT OF APPEALS REVERSIBLY ERRED IN I]OLDING
THAT THE EVIDENCE WAS LEGALLY SUFF'ICIENT TO
SUPPOIìT.'I.HIT ALLEGËD AGGIIAVATING ELEMENT IN EACIT
OF THE SIX DISCRETE AGGRAVATED SEXUAL ASSAULT
COUNTS.
REASONS F'OIì GRAN'I'ING IìEVIEW
In holding that the evidence was legally sufficient to suppod the alleged
aggravating elernent in each of the six disclete aggravated sexual assault counts, the
court of Appeals decided on irnpoftant question of state law in a way that conflicts
with the applicable decisions ofthe courl of criminal Appeals and the Suplerne court
of the United States as well as the Texas and the United States Constitution.
ARGUMENT SUPPORTING GTTOUND FOR IìEVIEW
Appellant was indicted on six discr.ete counts of aggravated sexual assault
alleged to have been committed against the same fifleen year old complainant
(Appellant's step-daughter). The indictment alleged specific "on or about" dates for
each of the six disclete counts. The lÌrst date alleged was in August 2012 andfhelast
was in November 2012. The indictment also alleged three discrete unaggravated
sexual assault counts, against the same complainant, which were alleged to have
occurred in the middle of this time period, in October 2012.
The six discrete aggravated counts each contained identical aggravating
language, which read as follows:
And the defendant by acts ol'words placed Alicia Carpenter in fear.that
death or selious bodily injury would be imminently inflicted or.r Alioia
Carpentel or Krista Carpenter.
(Clerk's'l'r. at pp. 6-B).
l'-irst, the State's evidence was legally insuffìcient to connect any of the
purported thleats attributed to Appellant to any of the six discrete counts of
aggravated sexual assault alleged in the indictr¡ent. "fhe court ofAppeals erroneously
analyzed,this evidentiary deficiency in its legal sufficiency analysis on rehealing by
stating:
'I"he unique facts
of this case lequile us to look at the threats as
continuing duling the comtnission of the assaults ovel. an extended
period of time.
Slip Op. on Rehearing Below at I 1.
The Couft below, therefore, erloneously deemed it unnecessary to analyze fhe
six aggravated counts as six disclete crirnes in which each element, including the
aggravating element, must be pl'oven beyond a reasonable doubt, which the State
clearly failed to do. Rather, in order to find the evidence legally sufficient, the Court
below elroneously analyzed the evidence as ifthe indictment alleged a single criminal
episode, that continued "over an extended period of tirne," rather than six separate,
discrete crirnes, each one of which has essential statutoly elements, each element of
which must be proven beyond a reasonable doubt. The lower court's analysis, in
essence, deletes the te¡m "imrninently inllicted" f¡oln the indictrnent and thc statute
by detennining that those words have no significance. The lower court's analysis also,
in el.ítct, adds the term "satne crirnir.ral episode" where the legislature dicl not itrclucle
ir.
The legal sufficiency standard of.eview is highly defelencial and is viewed in
the light most favorable to the State. Jackson v. Virginia,443 U.S. 307 (lg7g).
l{owever, the State's evidence, in order to be legally sufficient, must not only rneet
the lelevant statute, it rnust be assigned to the specific allegations made in the
indictrnent. lf the indictmenl alleges multiple discrete offenses, the evidence must be
assigned to specific discrete counts, not simply to the "criminal episode.,, The
unanirnity cases make it clear that he proof of the elernents in a multi-count
indictment must be proven as to each individual discrete count. "An unanimousjury
verdict ensures that the jury agrees on factual elements underlying an offense-it is
nrore than lnere agreement on a violation of a statute." Francis v. State,36 S.W.3d
121, 125 (Tex.Crirn.App. 2000). See. also, Ansari v. State,20l5 Tex.App. LEXIS
8192 (Tex.App.-San Antonio 2015):
In Texas, the jury must "reach a unanilnous verdict about the specific
crime that the defendant comrnitted." Casio,353 S.W.3d at 771. This
rneans "the jury must agree upou a single and discrete incident that
would constitute the commission of the offense alleged."
Ansari, supra. at 8792.
The State's evidence is legally insufficient if they do not prove every element
ol'each cliscretc count, or ifthey p¡rove an offense different than the otie alleged in the
indictrnent, even ifthe oflense proven violates the sarxe statutoly plovision. Gollihar
v. State,46 S.W.3d 243 (Tex.Cr.im.App. 2001).
Although each ofthe nine counts in the case-at-bar. alleges a padicular "on or
about" date, it is clear frorn the State's evidence presented af trial, that the various
dates alleged in the indictrnent were chosen randomly and arbitrarily. V/ith the
exception of counts I and 2, the complainant's testimony describing the events is
extlemely sketchy and does not colrespond to any specifìc dates alleged. The State
does not have to prove the exact date an offense occurred, but in this case, the State's
evidence ofthe alleged aggravating element's in each of the six disclete aggravated
counts, does not correspond to any of the particular, discrete aggravated counts
alleged in the indictment. Therefole, the State, among other things, did not prove the
aggravating element in any of the discrete agglavated counts alleged, and the courl
below used the wtong analysis, by failing to tleat the counts as disc¡ete counts. The
purported threat that elevated each ofthe six aggravated counts had to be proven as
to each discrete count, not, as stated by the coult ofappeals "as continuing during the
cornmission of the assaults over ân extended peliod of time."
Tl.re State's key witness was their alleged cornplainant. ln lier testimony, she
described in some detail the first time she agleed to have sex with Appellant.
Although it is not clear, it is assun-red tl.rat the State intended the jury to infer that this
description applied to count(s) 1 and/or 2 of the indictment which wele alleged to
have occurred "on or about" August I0, 2012, the earliest date alleged in the
indictrnent. Accolding to the complainant, and viewing the evidence most favorably
to the State, these two disclete offenses (vaginal and oral assaults) took place at
Appellant's house in Grand Prairie, while complainant's twin brothers were asleep
in anothelroom. (R.Vol. 5 at 137).
The complainant described counts I andlor 2 as follows:
IPROSECUTOR]:Do you rernember the first night that sornething
happened with the defendant?
A. Yes. He said that _ to go there and just srnoke
weed with hirn. And then we did . . .
(R.Vol.5 at 136).
The cornplainant went