Nicholas Edward Ayers v. State ( 2015 )

ACCEPTED
06-15-00157-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
11/24/2015 12:12:03 PM
DEBBIE AUTREY
CLERK
NO. 06-15-00157-CR
IN THE COURT OF APPEALS FOR THE FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
SIXTH APPELLATE DISTRICT OF TEXAS11/24/2015 12:12:03 PM
DEBBIE AUTREY
Clerk
AT TEXARKANA, TEXAS
NICHOLAS EDWARD AYERS, Appellant
VS.
THE STATE OF TEXAS, Appellee
Trial Court Cause No. F14576 In
the 276th Judicial District Court
Marion County, Texas
STATE’S APPELLATE BRIEF
Submitted by:
Angela Smoak
Marion County Attorney
102 West Austin, Room 201
Jefferson, Texas 75657
(903) 665-2611
Fax: (903) 665-3348
State Bar #00797466
angela.smoak@co.marion.tx.us
TABLE OF CONTENTS
TABLE OF CONTENTS ………………………………………………….. i
INDEX OF AUTHORITIES ……………………………………………… ii
STATEMENT OF THE CASE …………………………………………… 1
STATEMENT OF FACTS ………………………………………………… 1
REPLY TO APPELLANT’S ISSUE NO. ONE ……………………….. 2
STATE’S PUNISHMENT ARGUMENT WAS NOT
FUNDAMENTAL ERROR REQUIRING REVERSAL OF
APPELLANT’S CONVICTION IN THAT THE PARTIES
AGREED FOR THE COURT TO REVIEW THE
COMPLAINED OF MATERIAL AND THE TRIAL COURT
IS PRESUMED TO DISREGARD ANY IMPROPER
ARGUMENT, IF ANY EXISTS.
REPLY TO APPELLANT’S ISSUE NO. TWO ……………………… 4
APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF
COUNSEL AND THE CONVICTION SHOULD BE
AFFIRMED.
CONCLUSION AND PRAYER ………………………………………….. 6
CERTIFICATE OF SERVICE ……………………………………………. 6
CERTIFICATE OF COMPLIANCE ……………………………………… 6
i
INDEX OF AUTHORITIES
CASES:
Lopez v. State, 725 S.W.2d 487, 489
(Tex. App. – Corpus Christi 1987, no pet.) …………………….. 3
Stone v. State, 751 S.W.2d 579, 582
(Tex. App. – Houston [1st Dist] 1988, pet ref’d) ……………… 5
Vaughn v. State, 888 S.W.2d 62, 72
(Tex. App. – Houston [1st Dist] 1994, p.d.r. granted
and affirmed, 931 S.W.2d 564, 1996) ……………………………... 4
Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App. 2002) …………….. 3
ii
STATEMENT OF THE CASE
Appellant was tried in a bench trial on two cases of Indecency with a
Child, being the instant case and Appellate Cause No. 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. [2RR 1-33] Evidence on the
pleas was heard on August 27, 2015. [3RR 1-58] The court found Appellant
guilty on each case and assessed an eighteen year sentence in the
Institutional Division of the Texas Department of Criminal Justice on each
case on August 27, 2015 to run concurrently. [3RR 65-66] Appellant gave
timely notice of appeal on September 23, 2013. [CR 98] Counsel was
appointed to represent Appellant on September 21, 2015. [CR 97]
STATEMENT OF FACTS
The State called seven witnesses and Appellant did not testify but
called one witness.
The Court, upon request by both parties, reviewed letters and
statements on file with the Court. [3RR 4]
Martha Dykes and Kimberly Lara testified to the predicate for the
admission into evidence of a DVD in each of the two cases of the Child
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Advocacy Center interview of the child named in each indictment. [3RR 8-
13]
Lauren Whitehead, employed at the jail with 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. [3RR 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.
Appellant called his step-father, Virgil T. Allen, who testified as a
character witness for him.
REPLY TO APPELLANT’S ISSUE NO. ONE
APPELLANT’S ISSUE NO. ONE
Is the State’s punishment argument outside the evidence
fundamental error requiring reversal of Appellant’s conviction?
STATE’S REPLY
STATE’S PUNISHMENT ARGUMENT WAS NOT
FUNDAMENTAL ERROR REQUIRING REVERSAL OF
APPELLANT’S CONVICTION IN THAT THE PARTIES
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AGREED FOR THE COURT TO REVIEW THE COMPLAINED
OF MATERIAL AND THE TRIAL COURT IS PRESUMED TO
DISREGARD ANY IMPROPER ARGUMENT, IF ANY
EXISTS.
ARGUMENT AND AUTHORITIES
Appellant asserts that the State’s argument was outside the record and
based on a letter written by Appellant to the Court which was not offered or
admitted into evidence. Said letter is contained in the clerk’s record at CR
36 and was filed by Appellant one day prior to the punishment hearing in
this matter. At the same time, Appellant filed character statements from a
number of individuals, located in the clerk’s record at CR 67-89. Both parties
agreed for the Court to review the letter and statements. [3RR 4]
To support his argument, Appellant cites Wilson v. State, 938 S.W.2d
57 (Tex. Crim. App. 2002). However, it should be noted that Wilson involves
a jury trial, not a bench trial, and specifically speaks to categories of proper
JURY argument. (emphasis added).
In the matter before this Court, the trial court was determining
punishment subsequent to a plea of guilty. As such, the trial court was
capable of disregarding any improper argument, if any existed, and is
presumed to have done so. See Lopez v. State, 725 S.W.2d 487, 489 (Tex.
App. – Corpus Christi 1987, no pet.)
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Furthermore, the argument was not improper as both parties agreed
on the record for the court to review the letters and statements referenced
by the State in its argument. [3RR 4]
Therefore, the conviction should be affirmed.
REPLY TO APPELLANT’S ISSUE NO. TWO
APPELLANT’S ISSUE NO. TWO
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.
STATE’S REPLY
APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF
COUNSEL AND THE CONVICTION SHOULD BE AFFIRMED.
ARGUMENT AND AUTHORITIES
The test for evaluating a claim of ineffective assistance of counsel at
the punishment phase of a noncapital offense is: (1) whether counsel was
reasonably likely to render effective assistance, and (2) whether counsel
reasonably rendered effective assistance. Vaughn v. State, 888 S.W.2d 62,
72 (Tex. App. – Houston [1st Dist] 1994, p.d.r. granted and affirmed, 931
S.W.2d 564, 1996) The attorney’s assistance is determined by the totality of
the representation. Id. Furthermore, the Appellant is required to not only
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show some act of ineffective assistance, but also some harm which resulted
from counsel’s alleged ineptitude. Id at 73, citing Stone v. State, 751 S.W.2d
579, 582 (Tex. App. – Houston [1st Dist] 1988, pet ref’d)
Appellant complains of counsel’s failure to object to the State’s
argument which referenced the letter written by Appellant. However, it was
agreed by the parties for the Court to review the very same letter, filed by
Appellant with the Court one day prior to the punishment trial. [3RR 4, CR
36] The State would not have had access to such letter without the filing of
same and it was a conscious decision by Appellant to provide such letter to
the Court.
The State indicated in argument that the letter was testimony without
risk of cross examination. [3RR 58] To avoid such risk is indeed a well
thought out trial strategy and not ineffective assistance.
Since the trial in this matter was not a jury trial and the Court is
presumed to have disregarded any improper argument, then no harm can
be shown as a result of counsel’s failure to object. As such, the Appellant
fails to meet his burden and the conviction should be affirmed.
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PRAYER
Wherefore, upon the issues presented, the State prays that the
judgment of the trial court be in all things affirmed.
Respectfully submitted,
s/Angela Smoak_______
Angela Smoak
Marion County Attorney
102 West Austin, Room 201
Jefferson, Texas 75657
(903) 665-2611
Fax: (903) 665-3348
State Bar #00797466
angela.smoak@co.marion.tx.us
CERTIFICATE OF SERVICE
I hereby certify that a copy of the State’s Appellant Brief was hand
delivered to counsel for Appellant, James P. Finstrom, on the 24th day of
November, 2015.
s/Angela Smoak
CERTIFICATE OF COMPLIANCE
I hereby certify that Appellee’s Brief filed electronically on this the 25th
day of November, 2015 complies with Tex. R. App. P. 9.4(i)(2)(B) and
contains 0000 words.
s/Angela Smoak
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