Henry, Willie Iii ( 2015 )

)
•.
To the Clerk of the Court of Criminal Apoeals: 8-25-15
Please find enclosed,,motion for leave to file nandaous, ceti-
tion for' '.!r it of ~1:3.ndar.,1s and "'!xhi b i ~:s . T? lease file T.Ti th t 'n.e court
and I also request that a copy of all exhibits be sent to the
Respondents. These' are my only copiss and ~ have no r..ray to m::>k,e,
cop~es of those doc~gents- I did send carbon copies of the rest.
Sincerely,
RECEIVED INl
~lOf CRIMINAL APPEALS
SEP 03 2015
This document contains so~e
pages that ar~ of p~or quality
®t the time of 1magmg.
IN THE COURT OF CRIMINAL APPEALS, TX.
IN RE 'WILLIE HENRY, III'
WILLIE HENRY, III §
RELATOR IN THE COURT OF CRIMINAL
§§ APPEALS OF TEXAS
vs.
§
252ND CRIMINAL DISTRICT COURT,§
JEFFERSON COUNTY, TEXAS;THE
STATE OF TEXAS, §
RESPONDENTS §
IN RE 'WILLIE HENRY, III'
MOTION FOR LEAVE TO FILE
TO THE SAID HONORABLE COURT;
Now comes Willie Henry, III, Relator files pro se, and ask
leave of court to file an original petition with the Court of
Criminal Appeals for a writ of mandamus, and would show the
Court the following;
I.
Jurisdiction
This Honorable Court has jurisdiction to review the order
and judgment from the 252nd District Court of Jefferson, coun
-ty, Texas under TX. Const. Art. V § V; TX. Govt. Code § 22.
221(b)(1). Mandamus is availbeto correct a trial court's
deprivation of Fundamental Constitutional Rights. A relator
who demonstrates that the order or judgment challenged is
void need not demonstrate that remedy by appeal is inadequate
Dunn v .. ligon,_430S.W .. 2d-704_ ".\.t.~. t__.C..~. ~ ~.03
II.
Extraordinary Case
This is an extraordinary case that requires the Court of
Criminal Appeals to exercise original jurisdiction because:
1. The deferred Adjudication order from cause no. 98575 is
1 of 4
void because the Relator was denied his right to trial by jury.fh
waiver was involuntarily and unintelligently given. Brady v. U.S.
39 7 U.S • 7lf 2 ~ ~ 2..Q_ S . CT . , llf 6 3 , 14 6 9 ~ _2 L .. Ed . ~ 7 47 ( T9i0T-
2.Relator was denied his Fundamental Right to Effective Assist-
ance of Counsel, where the trial court failed to inquire into
a conflict of interest which was before it.
3.Trial court abused its discretion when i~revoked probation
from a void order.
4.trial court abused its discnetion when it ruled without sup-
porting evidence. The plea nor the purported judicial confess~n
ion are valid due to IAC and ambiguity in plea agreement since
the vital SBI element was concealed from plea agreement.
III.
Ministerial Duty of Respondent
On the 1st day of October, 2007, The Honorable Judge Layne
Halker was the duly qualified and acting ju.dge of the 252nd Crim-
inal District Court of Jefferson County, TX. for cause no. 98575
styled, State of Texas v. Willie Henry,III, and entered an impro-
per and void order to wit:
1. On August 27,200~,the trial court received the plea agreement
with attached waivers and stipulations and ordered a PSI and
reset until Oct.1, 2007.In the report, it was made known that
there was a conflict of interest between defendant and his
\.
attorney. Triaililcounsel told dfendant that he could not have
representation in a jury trial without more money even though
defendant wanted jury trial. (R.R. v.5,p.14) (Relator's only
other copy of Psi was served previou~ly to parties and court)
Respondent had an independent duty to ensure a fair trial by
inquiring into the conflict of interest and a duty to protect the
defendant's right to trial by jury, but failed in that duty.
2.Respondent committed a fundamentally unfair act in accepting an
involuntary plea and inadmissible evidence of the judicial con-
fession, which was not intelligently entered, nor was it vol-
2 of 4
untarily given. Because the plea papers omit the essential el
-ement of serious bodily injury and that element was not con-
tained in the original indictment, the defendant was denied
actual notice of the accusations against him and the judicial
admission was mistakenly given since serious bodily injury
did not take place. The trier of fact could not have found
all of the essential elements to have been proven beyond a
reasonable doubt. V.T.C.A. § C.C.P.Art. 1.15; P.C.§2.01
3. Relator has been deprived of liberty without due process
of law which renders order and judgment void. _In re
- _Taylor, -130-S.W.3d-448;_U.S.C.A.1M,6;_Tx._Const._1§15
IV.
Petitioner has no Adequate Remedy by Appeal
1. My trial lawyer abandoned me immediately after the Oct.1
2007 sentencing. I addressed the issue in Habeas Corpus
in writ 73,015-01. (Do not have a copy) However, even
though my trial attorney states in his affidavit in the
proceeding that he had no further obligation to me, the
habeas court never addressed the issue and failed to grant
relief by out of time appeal. (This court has a copy of
that affidavit but I was not served one by attorney)
2.I have filed mandamus in the 9th Coa but argued wrong due
to the fact that I've had no actual assistance for a mean-
ingful review, which is supposed~ to be a Constitutional
Right, I've been barred from presenting another mandamus
to that COA. (09-13-00195-CR) May 8, 2013
3.Appeal lawyer after adjudication of guilt was ineffective
for raising IAC of trial counsel Only. -Issue is not a
claim that can be reviewed on direct appeal.(09-09-00029cr)
3 of ~
IT.
Motions and orders involved
The motions and orders involved are attached as exhibits
and are marked A through``---and made a part hhereof.
VI.
Prayer
Wherefore premises considered,Petitioner prays that leave
to file this petition be granted, that the same be set for
submission, and that Writ of Mandamus be issued by the Court
ordering that the order and judgment in cause no. 98575 set
aside and to declare the order void. In the alternative I
ask this Court to reset the time table to file for out of
time appeal and motion for new trial.
Re``ectfully Submitted,
\JJ ·&v, M.Q.N--e:::;--a - \7\o $.12_
Date 718 F.2d 1372 11
Donovan v. St., 68 s.W. 3d 633, 637-38 11
Ex rel Bill hill v. COA 5th district, 34 S.W.3d 924, 927 11
henderson v. Morgan,~ U.S.~' 96 S.CT., 2253 9
Hernandez v. ST., 127 S.H. 3d 768 8
Huynh v. ST., 833 S.\v. 2d 636 8
In re Taylor, 130 S.W.3d 448 3
In re Vernor, 94 S.W.3d 201 7
Michigan v. Jackson, 475 U.S. 633, 106 S.CT., 1404 11
Miller v. Champion, 161 F.3d 1249-50 12
Sanchez v. St., 543 S.W.2d 132 10' 12
Sanchez v. St., 32 S.W.3d 701 10
St. , v. Vasquez, 140 S.W.3d 758-59 2' 11
U.S. v. Abernathy, 83 F.3d 17, 19 9
U.S. v. Combs, 222 F.3d 353 8
U.S.c.A. _amends
5th, 6th, 14th
TX. _const.
1§10, 1~. 13, 1§15, 1§19
TX. _PenaL Code & C.C. P. 'f)·+·
1.05, 1.15, 2.03, 12.01, ~1Je,€+, 12.01{6), 12.05B, 11.07. 26.13
P.C. § 1.07(a)(46), 2.01, 22.02
TX Judicial Code of Conduct
Canon 2A, 3B(2), 3D(2)
Ll
STATEMENT OF THE CASE
This case is from the 252nd Criminal District Court, where
the Relator was granted 3 years deferred adjudication for the
offense of aggravated assault causing serious bodily injury to
Barbara Wherry-Dean. The court adjudicated guilt and sentenced
Relator to 18 years TD6J and he is serving that sentence in the
Wynne Unit, huntsville, TX.
Trial counsel abandonded relator after deferred adjudication
and failed to file motion for new trial during 30 days after the
deferred adjudication granted. After guilt was adjudicated, the
court appointed Doug Barlow for appeal but he too, failed to
file motion for new trial nor even speak or communicate with the
Relator after appointed. Relator's family hired Mr. hugh o'Fiel
after the 30 days passed to file motion for new trial and Mr.
O'Fiel, filed appeal in the 9th Coa, but on non reviewable issue
of ineffective assistance of counsel at trial and conviction was
affirmed instead of dismissed.
Relator filed habeas corpus under 11.07 but relief was denied
by courts. (Pro Se) Relator has also filed pro se for Mandamus
relief in the 9th COA but did not know how to describe the duty
which was ministerial and Mandamus was denied. Now he comes fil-
ing pro se in the CCA and does believe that he has now adequately
stated the ministerial duties of the court, and shows that the
order for deferred adjudication should be deemed void due to an
involuntary waiver to jury trial.
Jurisdiction
The Court of Criminal Appeals has jurisdiction over Criminal
Convictions iri Texas, granted by TX. Gov. Code § 22.221 and the
TX. Const. Art. V § V. ~·'·L·~· ~.~.~- ~ ~·03
NO.
IN THE COURT OF CRIMINAL APPEALS
IN RE WILLIE HENRY,III
WILLIE HENRY,III § IN THE COURT OF
RELATOR CRIMINAL APPEALS IN
vs. § AUSTIN, TEXAS
252ND CRIMINAL DISTRICT COURT, §
JEFFERSON COUNTY, STATE OF TX.
RESPONDENT §
IN RE 'WILLIE HENRY,III'
PETITION FOR WRIT OF MANDAMUS
To The Honorable Judges of Said Court:
Now comes Willie Henry, III, files pro se this application
for Writ of Mandamus and complaining of the 252nd criminal
district court of the state of Texas, jefferson County, respon-
dent, and would show the following:
I .
On the 1st day of October 2007, Honorable layne Walker was
the duly qualified and acting Judge of the 252nd Criminal Court
of Jefferson County, texas, and on said date in cause No. 98575
styled the State of Texas v. Willie Henry, III entered an impro-
per and void order to wit:
Respondent failed in its duty to protect defendant's Fundamen-
tal Constitutional rights to a fair and impartial trial by jury
and due process. He failed to properly admonish the Defendant of
his right to trial by jury, right to assistance of counsel at a
trial by jury, right against self-incrimination, and his right
to notice
The Reporter's record will show that at the time that the
Defendant's plea was entered, the trial court knew or should
have known that the Defendant's waiver to his Constitutional
Right of a trial by jury was involuntary and given unintelli-
gently due to counsel's refusal to allow Defendant to exer-
cise his Right to a trial by jury so that he could prove his
innocence. Although Respondent had evidence before him that
reasonably and fairly raised an issue of fact as to innocence
of the Defendant, of the offense of aggravated assault caus~
ing serious bodily injury~ and Respondent had a duty to with-
draw the nolo contendere plea on its own motion.
The Respondent's failure to perform its independent duty to
inquire into an obvious conflict of interest which was be-
fore the ,trial court resulted in the Defendant being ~mpelled
into a plea agreement and waivers of Federal and State Consti
-tutional Rights which he did not want to waive.
II.
Said order of Respondent was improper and void for the fol
-lowing reasons:
An involuntary waiver of the right to a jury trial renders
a judgment void. Caldwell.v .. Thaler 1 _770.F •. Supp •. 2d 1 849;
State.v •. Yasquez 1 _140.S.W .. 3d 1 .758~59
III.
The acts required of the Respondent are ministerial in
nature and are not subject to the discretion of the Respond-
ent. Namely: Protect Defendant's Fundamental Constitutional
Rights and properly admonish defendant to make sure that the
plea is really voluntarily and knowingly entered.Y.T.A.C.C.P.
art •. 26.13 The trial court must properly admonish defendant
concerning consequences of plea and must determine voluntari-
ness of the plea and such responsibility cannot be shifted to
counsel.Waivers also must be voluntary and given intelligent~
ly, to comply with due process. U.S.C.A. amnds. 6,14;Tx. Cons
-titution arts. 1 § 15; 1§19
Relator has been deprived of liberty without due process of ~
law ~hich renders order and judgment void. _in_re-Taylor 1 -130
S.W.-3d, _448;_u.s.c.A. amend._14
IV.
Petitioner has no right of appeal from the actions of the
Respondent and has no adequate remedy at law other than a
Writ of Mandamus as prayed for herein.
1. My trial lawyer abandoned me after the original deferred
adjudication sentence. I filed this as ground in 11.07(73
015-01) trial counsel's affidavit stated that he had no
obligation to me after deferred adjudication, which is
not correct according to art. 26.04, but the habeas court
failed to address the ground. in which case, had they
addressed it, I could have then filed a motion for new
trial and had a full and fair hearing.
2. I have filed mandamus in the Ninth court of Appeals but
argued Hrong because I've had no assistance at all, and
now that court says that I can't bring another petition.
(09-13-00195-CR) may 8, 2013
3. Appeal lawyer after adjudication of guilt was ineffective
for raising IAC at trial which could not be raised on an
appeal. He didn't raise these important issues, nor did he
at any time contact me or file a motion for new trial.
v.
The motions and orders involved are marked as Exhibits A thro
-ugh_ --~--- __ and are attached hereto and made a part hereof.
Wherefore premises considered, Petitioner prays that leave
to file this petition be granted, that the same be set for
3
submission, and that a Writ of Mandamus be issued by the Court
ordering and directing the Respondent to set aside order and
judgment of conviction, and declaring it as void and a nullity.
In the alternative I ask this Court to reset the time table
to file for out of time appeal and file motion for a new trial 0'
1rJillie Henry
- - - -~ = ~Lo ~\S- --
Date
#1550834
810 FM 2821
Huntsville, TX. 773~q
ISSUES PRESENTED
The Trial court neglected its duty pursuant to TX. C.C.p. art.
2.03~b); art. 1.05, to ensure a fair trial and protect the
Fundamental Rights of the accused even after a conflict of
interest was brought to the court's attention in the PSI.
Relator brought to the attention of the court that he was
now indigent Oat the stage of jury trial.) and that counsel
refused to allow him to go to trial by jury if he didn't
come up with more money. 1Reporter's Record V. 5, P.14)
That neglect of duty caused the following:
1. An involuntary waiver to trial by jury tvoids order)
2. Deprivation of Fundamental Right to Counsel
3. Acceptance of an involuntary nolo plea to an offense
which the vital element of serious bodily injury was
concealed from him in the plea papers and was added to
the indictment after the plea papers were already signed,
depriving Relator of his Fundamental Due Process Right
to ..,~-true and adequate notice of accusations.
4. Admittance into evidence, an inadmissible judicial con-
fession which was given by mistake. It omitted the
~ssential element necessary for conviction.
~Does not support finding of guilt. C.C.P. art. 1.15)
5. Violations of the Tx. Const. Arts. 1§15; 1§10;1§3;1§19;
U.S.C.A. Amends. 5, 6,14
STATEMENT OF FACTS
In the July term of 2005, the grand jury indicted Willie
Henry, III, for the offense of sexual assault (P.C. § 22.011(E)
and Mr. Audwin Samuel was retained as defense counsel, given a
list of defense witnesses and contact information which he nev~
er attempted to contact. According to the records of the clerk,
a re-indictment was issued in September, 20DG, but Henry was
not informed. (Exhibit f\-'b,q) In August 2007, when getting to
the courthouse Mr. Samuelinforms his client that they are set
to pick a jury the next morning of August 28, 2007. Then he
informs Henry that if he can't come up with another $3,500.00
5
if he wants a jury trial, then he will have to agree to a plea
deal for the lesser-included offense. After making phone calls to
try to raise the money but failing, he was told he has no choice
but to sign a plea deal. Henry asked his attorney to try to get
the trial reset so he could come up ~ith the money and Mr. Samuel
told him that he would go ask but that henry could not come in
the courtroom with him. A few moments later, counsel returned but
told him that the Judge refused to reset.
Henry was told by his attorney to not say anything to the Judg
but only answer what the Judge asks, or this Judge will just
sentence you to the max of 20 years. Therefore, Henry tells the
interviewer during the PSI what had taken place between his attar
-ney and himself. (Ran out of mon,y but wanted a jury trial and
that he was innocent of charges) R.R. v. 5,p.14 and PSI
The case was reset for sentencing on Oct. 1,2007 and the court
accepted the plea agreement and sentenced him to 3 years deferred
adjudication without inquiring about voluntariness of waivers or
into conflict of interest. (Exhibit ) R.R. v.3
In 2009 , on January 12th, probation was revoked and guilt
adjudicated and defendant sentenced to 18 years TDCJ- Institu-
tional Division. R.R. v. 5,p. 17
Aurguments to Support Claim
The Respomdent on October 1,2007, issued an order for a
deferred adjudication pursuant to a plea bargain agreement
which contained involuntary waiver to a trial by jury. The
trial court knew or should have known that the waiver to a
trial by jury was given involuntarily by the defendant.
See: Exhibit-~,Q__~\(._5,'·~1nd PSI which this court has a copy.
The trial cou~t had a mandatory duty to inquire into a
conflict of interest but did not. Due to this failure to per~
form its mandatory duty, the defendant was forced to forego
his right to a jury trial, which is a Fundamental Right under
Due Process. This Honorable Court has the power under the
TX. Constitution Art. V.§V to issue mandamus to correct the
trial court's deprivation of fundamental constitutional right
In_re_Vernor,-94-S.W. 3d,_201
Although the trial court knew, as is evidenced by the repor
-ter's transcript in Vol. 5, P. 14, that the only reason that
defendant entered the plea and bargain agreement was because
he became indigent at the point and stage of trial by jury.
Mr. Samuel refused to allow a jury trial if he wasn't giVen
more money immediately. He (Mr. Samuel) did not tell defen-
dant that he had other options, such as asking the court to
appoint counsel for a jury trial. Had defendant been inform~
ed of that right, instead of being told that he had no choice
if he didn't have the additional money, defendant would not
have waived his right to trial by jury. This is an obvious
conflict of interest that the Respondents knew about.
"While guaranteeing defendant's right to attorneys of their
choosing, Sixth Amendment also entitles defendants to rep-
resentation by an attorney unfettered by any conflict of inte
-rest .... Even when a defendant is willing to waive a conflict
of interest, acourt_has.an_independent.duty.to.balance_the_,·
right_to_counsel.of.choice.with_the.broader_interests_of_judf
~cial_integrity,.and.is.required.to_take __ action.to.protect
defendant!s_Sixth.Amendment.right.to_effective.assistance of.
counsel, unless after inquiry, the court believes that a con-
flict of interest is unlikely to arise.
U.S. v._Combs,.222.F.3d,-353
In this present case before the court, the defendant did
not want to waive the conflict of interest, but rather, was
told he had no choice. he thought that's the way the law
works, therefore he brought it up in the PSI hoping the court
would do something about it. Now he has found out that that
was a choice to be made by himself and not dictated by trial
Not only did Mr. Samu~l disallow the defendant the right
to a jury trial but he also gave mis-information which made
the waiver involuntary and unintelligently given.
1. Mr. Samuel told defendant that the offense of aggravated
assault was the lesser-included offense of sexual assault.
that information was incorrect. The State actually asked
that the original indictment be amended after the plea
agreement was already signed. That amendment substantially
charged another offense other than the grand jury charge.
When a charge has been substantially amended from the
charges contained in the original indictment, and the
statute of limitations has expired, then it is barred.
Hernandez_v._ST.,.127-S.W.-3d 1 .768;_V.T.A.C.C.P._art._12 ..
. 01; .12.05B In this case, aggravated assault had a 3 year
limitation, art.12.01(6). The indictment alleges offense in
May 2000, but the date of amendment is August, 27, 2007.
Had that been revealed at_the time then defendant would not
have entered the plea deal or plea.
2. The plea agreement did not contain the vital element of
serious bodily injury. (Did not occur). By the State
failing to disclose _that necessarry elment and chose to
rather conceal it, defendant was denied true notice of
the allegations against him. By not informing of the ele-
ment before the plea hearing, defendant was prejudiced by
being denied his opportunity to present a defense and to
make the State prove Serious Bodily injury, which it could
not have proven since it didn't transpire nor was it com-
plained of by the alleged victim. the State acted arbitra-
rily and unreasonably by waiting until after the agreement
was signed to then add an element to the charging instru-
ment without any warning whatsoever . . U.S •. v._Abernathy,
83_F.3d.17,19.(1996);_Henderson_v .. Morgan,_ ... U.S •. _ .. ,_96
s._CT •. 2253 The defendant in this present case did not have
a true understanding of the nature of the accusations against
him because nobody explained to him that serious bodily inj-
ury means''·· .injury that creates a ~ubstantial risk of death
or that causes death, serious permanent disfigurement, or
protracted loss or impairment of the function of any bodily
member or organ. V.T.C.A. Penal Code §1.07(a)(46).None of
these things happened but without this court ordering an
evidentiary hearing the only thing which can be shown is the
elements of SBI were not entered into evidence. The alleg-
ed judicial confession omits the SBI element. A judicial
admission that omits an element is not sufficient and a
judicial admission must be clear and unequivocal, contained
in the live pleading and not given by mistake. It is clear
that the defendant was not aware of the SBI element before
the plea hearing since it was not contained in the original
'live pleading' nor was it brought to his attention in the
plea papers. The judicial confession is invalid to support
the conviction.
3. The trial court had a duty to withdraw the nolo plea on
its own motion because there is nothing at all entered
into evidence to prove the alleged victim suffered any
serious bodily injury. C.C.P.art. 1.15; Sanchez v. St.,32
S.W. 3d, 701; Sanchez v. St., 543 S.W. 2d, 132
4. Had the trial court just did its job and admonished the
the defendant all of this could and would have been avoid~
ed because d~fendant would have elected to go to trial by
jury. He was not aware that entering the plea bargain
waived his right to make the State prove the allegations.
It was his understanding that the judge would look at the
evidence in a fair manner and that the State had to offer
proof beyond a reasonable doubt. It would have been impos-
sible for the State to prove SBI. It is against all the
principles of justice to hold a person knowing that he was
forced to admit to something that did not transpire. When
the plea, waivers, and plea agreement were not knowingly,
l>
voluntarily, and intelligently entered a-nd- are inadmissible.
as evidence and violates due process.
\D
5. The waivers in this case were signed without a recommend-
ed punishment to be imposed if guilt was adjudicated and
are not voluntarily entered. Had trial counsel not aban-
doned his client after the deferred adjudication order the
defendant would have elected (if properly informed) to
file a motion to adjudicate guilt and file motion for a
new trial within 30 days. Because trial counsel abandoned
defendant, as attested to in his affidavit (73,015-01) he
has been denied any meaningful review on appeal and denied
counsel during the time to file a motion for a new trial.
6. The Respondent was prohibited from accepting the nolo plea
which it knew or should have knor.rn was involuntary.(£..)(. \f.5 P-\4)
"the Constitution forbids acceptance of a guilty(nolo)
plea to a criminal offense unless that plea is entered
both voluntarily and knowingly." Diaz v. Martin, 718 F.
2d, 1372 (5th cir)
7. Relator believes he has shown that the waiver(s) were not
voluntary nor intelligent. Where that is the case, the
Courts of appeals have stated that the judgment is renderea
void. State v. Vasquez, 140 S.w.3d, 758,59; Michigan v.
Jackson, 475 U.S. 633, 106 S. CT. 1404; U.S.C.A. amend. 6;
Tx. Const. art. 1 § 15 Vacating a void order is a minister
-ial duty. Ex rel Bill~Hill v. COA 5th district, 34 S.W.3d
924, 927 Relator believes he is entitled to vacation of
order and entitled to remand to the trial court to answer
original indictment.
\\
SUMMARY
the trial court shifted its responsibility to ensure a fair
trial entirely to counsel, (R.R. v.2,p2)asking if counsel explain
-ed the admonishments which were not signed in open court; but
fails to admonish and ensure that defendant understood his right
to jury trial if desired, right against self-incrimination~which
there was no explicit waiver contained in plea papers), and chose
not to inquire if the plea was truly given because defendant was
in fact guilty.
Once the trial court received the PSI it should have withdrawn
the plea on its own motion. Sancbez ~St.~ 5~3 S.W. 2d, 132
then the trial court was obligated to conduct inquiry into what
it should have reasonably inferred may have been a conflict of
interest after reading in the report that defendant denied commit
-ing the offense but ran out of money to pay counsel for repre-
sentation for a jury trial. When the defendant was asked if he
entered his plea on his own free choice, (R.R. v.2,p.2), that
answer was based upon misinformation relayed to him by his att-
orney and the failure to apprise him of the SBI element namely:
1.that he had to have more mon~y to exercise the right to jury
trial.
2.That the nolo plea was not in any way admitting guilt
3.That the plea deal charged him with alesser-included offense
of sexual assault as alleged in the grand jury indictment in
cause no.86400(never told he was reindicted on(98575~
4.The failure to apprise defendant of the SBI element from or by
any source pr~or to the plea hearing. Miller v_ Champion~ 161
F.3d 12~9~50
Relator contends that after receiving and reviewing the PSI,
any reasonable trier of fact would necessarily have a question
as to the voluntariliness of the constitutionally waived rights
\~
and the actuai voluntariliness of the plea, which would warrant a
further inquiry by the Respondent. C.C.P. arts§ 1.05, 2.03; TX.
Code of Judicial Conduct Canon 2A, 3B(2) ,3D~2); U.S.C.A. 6, 14
Because the purported judicial admission omits the SBI element
and that element was not included in the grand jury's original in
-dictment, which was the 'live pleading' at the time that the
admission was signed, the Respondent could not have found the
d~fendant guilty of committing every essential element of p.C §
22.02 aggravated assault with SBi beyond a reasonable doubt. P.C.
§ 2.01; U.S.c.A. amend. 14; C.C.P. art.§ 1.15 the trial court
had no factual basis for the acceptance of the plea. fffiire is
nothing in the record to support a finding of SBI as defined in
TX. P.c. § 1.07 (a)(46). As a crucial matter of fact, if this
Honorable Court will order the Suate to turn over the complaint
of the alleged victim, mrs. Barbara Wherry-dean, it ~ill find
that no such claim of SBI was made under oath, and will show
Prosecutorial misconduct by Mr. Perry Thomas by charging the
defendant with an offense that he knew was not supported by
probable cause or by oath from complainant.
PRAYER
WHEREFORE PREmiSIS CONSIDERED, ~ETITIONER PRAYS THAT LEAVE TO
FitE BE GRANTED, THAT THE SAME IS SET FOR SUBMISSION, AND THAT A
~RIT OF MANDAMBS BE ISSUED BY THE COURT ORDERING AND DIRECTING
THE ORDER AND JUDGMENT BE SET ASIDE AND DECLARED A NULLITY. 6R TO
RESET THE TIME TABLE TO FILE FOR OUT OF TIME APPEAL AND MOTION
FOR NEW TRIA)_,.
-\))~Ju__ Mn~-
SIGNATURE 1'ro SR__,
-%~- a\Q ~ _\S_ -
DATE
\3
Certification under r.App. oro. 52.3
I Willie Henry, III, do ce~tify that I have read the oetition
9nd certify under the penalty of perjury that all factu9l state-
cents are supported by competent evidence in the appendix or in
the record.
Certificate of Service
I i)illie Henry, III, do certify that on this the_ . d\u~ day of
August, 2015 9 true and correct copy of the above and foregoing
Motion for leave to file and petition with copy of the unsworn
decl~rabion was .s~rved on the District Attorney's office, Jeff~r­
son County, 1001 Pearl St., Beaumont, Tx., by u.S. Postal mail.
_\0&9;~&~-
'Jillie Henry
Pro Se
INMATE_AEFIDAVIT_OF_UNSWOBN_DECLARATION
My name is Willie Henry, III, and I am over the age of 18 years
of age and I am competent to give the following statements. I am
currently incarcerated at the Wynne Unit Pr&son, Huntsville, TX.
My TDC # is 1550834. I am being held illegally.
In September around the 1st, I retained Mr. Audwin Samuel to
represent me in cause no. 86400 from Jefferson County, Texas, in
the 252nd district court.
1. I told my attorney that I was not guilty when he discussed the
indictment in cause no. 86400.
2. I told him that I wanted a trial by jury and he gave me a fee
of $1,500.00, and later went up to $1,900.00. 1
3. I was never told about the reindictment under 98575. See the
exhibits attached to 'the affidavit as proof that I never saw
nor signed any of the resetting sheets and that as late as May
2007, in his motion to withdraw, he was still using 86400 no.
which the clerk of the court had to correct.
4. Afirer. the motion to withdraw was filed ( Hhich he didn't send
me a copy until the weekend before the hearing; he decided
not to *ithdraw because I gave him what he said I owed him.
5. On the scheduled date of trial, he told me 'that I had to
pay him another $3,500.00 immediately or I could not have
a trial by jury as I requested. But I was told that I coilild
not say anything to the judge about it. So, I told the PSI
interviewer.
6. I asked about bringing witnesses in my favor but was told
the judge is not going to allow me any witnesses.
7. I was told that aggravated assault was the lesser-included
offense of sexual assault under P.C. § 22.011(E)
8. No one nor anything apprised me of the serious bodily ~lement
of aggravated assaul-t. Had I knovm and was given a choice I
would not have agreed to enter the agreement or plea.
9. I was never warned about my right to not give evidence against
myself.
10. ~vhenI signed the form stating that I was or had, commit ted
every element alleged in the charging instrument, that did
not include, nor was it meant to include serious bodily injury,
because the only indictment ever discussed with me was the in-
dictment that was labeled as count II. (attached to this affida-
vit/unsworn declaration)
11. The courtroom was locked and closed to anyone entering ex-
cept my attorney, myself, reporter for court, and district
attorney. it was not a public trial at all.
12. I did not understand that I did not have to wa~ve my consti-
tutional rights just because I became indigent. I never wishe
to do so at all but was tolfi I had no choice without money.
Every statement contained herein is trua and correct and given
by my personal knowledge. I have read the petition and certify
that all factual statements are supported by competent evidence
in the appendix or record. I declare under the penalty of perjury
that the statement~ are true and signed by me this-the 25th day
of August, 2015.
(,;.,
COUNT II
THE GRAND JURORS for the County of Jefferson, State
aforesaid, duly .organized as such at the July Term, A. D.,
2005, of the Criminal District Court of Jefferson County, in
said County and State, upon oath in said Court present that
WILLIE HENRY, III, hereafter styled the Defendant, on or about
the 1st day of May, Two Thousand, and anterior to the
presentment of this indictment, in the County of Jefferson and
State of Texas, did then and there sexually assault BARBARA
WHERRY DEAN, hereafter styled the Complainant, by
intentionally and knowingly causing the penetration of the
female sexual organ of the Complainant by inserting his sexual
organ, and the Defendant was a clergyman who caused the
Complainant to submit and participate by exploiting the
Complainant's emotional dependency on the clergyman in the
clergyman's professional character as spiritual advisor,
AGAINST THE PEACE AND DIGNITY OF THE STATE.
qgsr:;
N0.86486
·STATE OF TEXAS § IN TleSTRICTCOURT
§
vs. § OF
§
WILLIE HENRY Ill § JEFFERSON COUNTY, TEXAS
MOTION TO WITHDRAW AS:COUNSEL
TO THE HONORABLE JUDGE OF SAID COURT:
Audwin M. Samuel, Movant, brings this Motion to Withdraw as Counsel and in support
thereof shows:
1. Movant is attorney of record for WILLIE HENRY Ill, and was employed to represent
Defendant.
2. Reasons to withdraw include: a. the client has not completed his contractual
obligation in this matter.
3. This withdraw is not sought only for delay, but that Defendant may retain counsel of
his choice and may justice be served.
4. The last known address of WILLIE HENRY Ill, 6000 Faye Circle, The Colony, TX
75056.
5. A copy of this motion has been hand delivered to Defendant, who was thereby
notified in writing of his right to object to this motion.
6. The pending settings in this case is August 27, 2007 for Trial.
7. Movant prays that the Court enter an order permitting Movant to withdraw as attorney
of record for WILLIE HENRY Ill
Respectfully submitted,
·
.. ~ .._·_ ·:.
The Law Office of
····-
Audwin M. Samuel & Associates
c·::7': 505 Milam, Suite 100
LLJ ~--~- c·~- - Beaumont, TX 777 1
~< ~::
L'-- - .. . !":-.: (409) 8 -4111 l
.· -· ;~:~:~
·- ··<
f- ..
. ~J
~..... ~. ',•... -.. .....
By:-:tt::l'Ul!!!!.~v:-J``b--------
-Lt.- ':) '\
DW
.· ~ Audwin M muel
State Bar No. 00791595
fel_wtdr.mtn 10
I agree with this Motion an~ do not oppose Audwin M. Samuel's withdrawal as attorney of
record in this case.
by:
WILLIE HENRY Ill
NOTICE TO CLIENT
This is to notify you that this Motion for Withdrawal of Counsel is set for hearing at the
time and place stated herein. You do not have to agree to this motion and if you contest the
withdrawal of Audwin M. Samuel as attorney in this cause, you should appear at the hearing. If
you do not oppose Audwin M. Samuel's withdrawal as attorney of record in this case, you may
appear in court and inform the judge that you agree with this Motion. Included above is a list of
the pending settings and deadlines in your case, which you will have to keep even if the motion
is granted by the co1 !rt.
BY``~
· A in M. Samuel L
STATE BAR NUMBER: 00791595
NOTICE OF HEARING
The above motion is set for jury trial on. _ _ _ _ _ _ _ at _ _ , in the courtroom of
the _ _ _ _ _ _ _ _ _ _ _ Court, 1001 Pearl Street, Beaumont, Texas.
Signed on _ _ _ __
Judge or Clerk
fel_wtdr.mtn 11 2
CERTIFICATE OF SERVICE
This is to certify that on May 1f, 2007 a true and correct copy of the above and
foregoing document was served on the District Attorney's Office, Jefferson County, 1001 Pearl
Street, Beaumont, Texas, by hand delivery.
fel_wtdr.mtn 12 3
STATE OF TEXAS § IN THE 252ND DISTRICT COURT
§
vs. § OF
§
WILLIE HENRY Ill § JEFFERSON COUNTY, TEXAS
ORDER ON MOTION TO WITHDRAW AS COUNCIL
On _ _ _ _ _ , 2007, the Court heard defendant's motion to withdraw and it is
THEREFORE ( ) GRANTED/ ( ) DENIED~
Signed O n - - - - - - - -
Judge Presiding
13
fel_wtdr.mtn 4
~
Jun~22-07 04:11P Law ~-f of Audwin Samuel 409 ~38 2220 P.Ol
The Law Office oj'
.Audwin M. Sa1nuel &. Associates
505 Milam APenuc
Reaumont, Texas 77701
(409) 8.1.'1-4111
Fctx: (409) 838-2220
FAX TRANSMISSION COVER SHEET
Date: June 22, 2007
1 at
cEIL ED
~ o'clock f'
To: 2S2"' District Court M
Fax: 409-835-8656 JUN 2 2 2007
LOLITA. RAMos
Rc: Cause No. 985 75 STR/ T COURT OF JEFFERSON CO., TEXAS
BY
DEPUTY
From: Audwin Samuel
j -·--,
YOU S'HOULD .RECEIVE 1 . PAGE(S), INCLUDING THIS
COVI:.'R SHHFT. IF YOU DO .NOT RECEIVE ALL TI IL' PAGE),
PLJ!ASH CAIJ, (409) 833-411 I
This is to give notice that. I am passing on the hearin.g. that is set for 6-''.5-
Q.? and that I no longer wish to withdraw front the ~bove mentioned
cause. Thank you.
The infonnation contained on the following pagc(s) is CONFIDENTIAl,
and intended only for the individual named above. Any other use,
dissemination, or copying of this communication is strictly prohibited and
is a tortuous interference with our confid~ntial business relationships. If
this document was crroncouslv sent to vou please notify us immedi:H.dy
~ " -
at the phone m.nnber listed below and then destroy this docurnent.
Thank you. ( 409) 833-4 J l J
ORIGINAL WILL _ _ I WILL NOT X BE M.AILEJ).
1U
t{252ND c )CRIMINAL ( )DRUG 3 .~ 'RUG • 0~,, \\.)"'
: ., `` DISTRICT COURT OF tiEFPEfiiON COUNTY, TEXAS
No(sLgj 51[ __. ---·--·--- ~late vs1J J{L L_& flj-Jll=-
Date:___ 9:L~--
( ) Designation of Attorney
( ).Arraignment/Announcement Diiiiidinl ________________ --------
( ) Hearing of Pre-Trial Motions
( ) Plea or Disposi1ion
'fury lllat/ Court trial
( ) Probation Revocation Hearing/Plea
( } Probation Revocation Announcement
P"rtftiNima-------·- --------------
( ) Post Conviction Motions
( ) Sentenctng
( ) Bond Proceedings
( } Habeas Co~p~.~t.
( ) . __l_t3
..-101-Jtor---:"'(1) (2) (3)
~Pr~o- ---
-------------------·-- __ ___________ ...., . ......,.. ___ __
._...________________________ _
---------------------· --. ------.. -------------------------------------------
NODCE Of RQmJNQ
THIS CASE I& RESET UNTIL . ~ J.f2__20Qtaliil ~.1
~· 0
. AM M
_( ) not reached/continued from Trial Docket
::::;_____._JI~/!J~([j_~fJ!J!:!if_l!_([r!l __ ~&_'f_Q2~---
-----:-----·------·- · · · . ---· -·-··=r-----q+---------------·-----------
-----·-------·-·····~·- ·····-· ·-· ····-····-··j___.____lJ_t___..:___________··----··-----
-----·---·-·-·--·-····--· -· -·· ...... _____ . ___________ ...._ _________________ ------------- .
7
Court Offtclal
~ f?ll\ 'f-tz5ZND , ,CRIMINAL 1 JOIIUG ~ 1 )Dh"G •
. DISTRICT COURT OF JIIIPIRION COUNTY, TEXAS
No(sL __ q~S_-£_________ lttale .,•. ___L!_i_l,k__ ``
Date: Q-(0-Q::,
----·-------· ·-·----
_ ( ) Designation of Attorney
( ) ArraignmenvAnnou~ment oeiif*'l_________________ ---·----
( ) Hearing of Pre-Trial Motions
·(,r.'• Disposition
.Jr:f...Jury trial/ Court trial
( ) Probation Revocation Hearing/Plea
( ) Probation Revocation Announcement Piift't-Nime _________ ----------:----
( ) Post Conviction ·Motions
( ) Sentenctng
( ) Bond Proceedings
t j Habeaa ColpUt
i )
.. --Pr~O-IItci~D--:-(1-:-)~(2~)-:::(3::-)
tiL
---------------------- -~-------------.- ____ __. __ ____________________________
.
-------------·-·-----·-····-------~--------.- ...------.-.-..----------------·-------
Ncmq Of B"'!T!W!
rHIS CASE IS RESET UNTIL ~- __l__:i__mo] 0 ~J
) not reached/continued from
::nJRT JCTES:
9-\ ~ ~Trial Docket - AM M
---·------ ... ···-·-- ----··-- . ·~-----··--···---···- ..----.. ·----------------------------------···
-~ ·----- --- ------·· ····-··- ··--- _____ ___________ .......,
.., ______________ ____ _ .-,
------------·--···. ·---·-·---·-·····-···-··----·-------........-----------··---------
-------------· _.. . . · ---·--------p:=-------------------. .J ·- 8
~52ND ( )CRIMINAL ( )DRUG 3 ( )DRUG •
OfSTRJCT COURT OF JEI'P!RIOH COUNTY,· TEQ.S
No(sL __ CJt~5J?_______
Date: -c' ~·\~-0]
-----~-------------
( ) Designation of Anorney
( ) ArraignmenVAnnouncement
-----------------------·--------
DefecldMt
( } Hearing of Pre-Trial Motions
or Disposi11on
~ury triaL! Court trial
( ) robalion Revocation Hearing/Plea
( ) Probation Revocation Announcement
( } Post Conviction Motions
( ) Sentencing
{ ) Bond Proceedings
( ) Habeas Corput
( )
ProHcenor (1) (2) (3)
-------------~---------------------~-------.;__
--------------·-----· ~-- ....
_________________________
______________________ ____________________
.,;.... ________ _;..
NODCi Qf BQI'IIWA
THIS CASE IS RESET
----·------- . -...:__ ---· ------------------------------···
------·--··--···------------ ..
--------- ------· ····· ··- ---- -·---------------------·--------~_..;,------
.------------·-- ···-·-- ---···- -- ·-·- ·-·-·-- ---·----------~--------------·----
----------·--·-·---· -· -··-· ··-·-·--··------------------------ ------------- 9.
~
\><'\ )fJ252ND ( )CRIMINAL ( ')DRUG ~ ( )DRUG •
DISTRICT COURT OF JEPPIAION COUNTY, TEXAS
NoCsL _ _ q~S Q_ _____ $1ale va.~±\.o:nT
Date: ___ k_~1~'2____ ·
( ) Deslgnauon of Anorney
( ) ArralgnmenVAnnouncement
---------------· ---------·----
~ Hearing of Pre-Trial Molions Daflndlnl
( } Plea or Disposition
( ) Jury triaL' Court trial
( ) Probation Revocation Hearing/Plea
( ) Probation Revocation Announcement PrintN&me ___________________
( ) Post Conviction Motions
( ) Sentenctng
{ ) Bond Proceedings
( ) Habeas ColpUt.
( ) ~__L[-1:_
PfOIIQftor (1) (2) (3)
------------------ . -----------------------------------------------------
--------------·-----· . __ ... _______________________ ________________________
.:__...
NQDCE Of BJUDlHQ
THIS CASE IS RESET UNTll ~ \CQ
~ ) not reached/continued from - - - - - - - Trial Docket
10QioJj.'fJ .
COURT rct'ES;
========~=======~::=rn``````======-. ~==
.-----------·----·---·-· · - . .-·-·- - -e
``-- ~ .
-to~d~:o~-------
---------·--·-·---·--··-- _______.___lc_~------~------ ------------- 14
~
( )252ND ( )CRIMINAL ( )DRUG 3 ( )DRUG •
DISTRICT COURT OF JEFPEAIOH COUNTY, TEXAS
No(s) ·
.
q<6SIS
--------------·-----
Date: ______tQ..:.
/: -Jf3-0l
___ ·-··-----
( ) Designation of Anorney
( ) ArraignmenVAnnouncement ·
I) Hearing of Pre-Trial Motions ·jY\--r--J
~')JPlea or Disposi1ion .
( ) Jury triaV Court trial
( ) Probation Revocation Hearing/Plea
( ) Probation Revocation Announcement
Print N&ml ________ -~-----------
( ) Post Conviction Motions
( ) Sentencing
{ ) Bond Prooeedlngs
( ) Habeas Corput.
( )
-------4``-
PI'olec&ftor (1) (2} (3)
______________________________________________________ ______________ _ _:_
--------------·-----·~--------------------------..:...----------------------------
NOTICE Qf fliii'IDHQ
THIS CASE IS RESET UNTIL ~· as 10§/ ~\3:)
( ) not reachedlcontinueo from -~G~--,!...l'6-=----o-=)J~- Trial Ooc;ket
COURT NOTES;
----·------------ ---- ------·---·--···...:. ____________ ~------------------------------···
--------- ------- . - ·- ----- -·---------------------- ------------
.-------------·- ··--·-- -~-·-·· -·- ·-- ·-·---- ---------------------------------
---------·--· -·--·-· -· ---- . -· ---·--------------------------- ------------- .
15
Court OCficial
' .
.. . \' \ .. ·
-':
~52ND ( )CRIMINAL ( )DRUG ~ ( )DRUG 4
OJSTRJCT COURT OF JEFF!AIOH COUNTV, TEXAS
No{s}_ __ qC6 5]_2_________ aaate va.
Date :__ £L:)l:Q]___ _
· ( ) Designation of Attorney
·....
( ) ArraignmenVAnnouncement
( } Hearing of Pre-Trial Motions
( ) Plea or Disposition
( ) Jury triaV Court trial
( ) Probation Revocation Hearing/Plea· .
( ') Prooatlon Revocation Announcement
( } Post Conviction Motions
·'Jfoentenclllg
i {Bond Proceedings
/( ·} Habeas Corput
! ( ) ______
-----,..
~(1)(2} (3)
-------------·-·----~-----------------------~----·-------:--------------
--------------·-----·~--------------------------..:....-------------------------
NQDCE Of BIIIJIWQ
TI'IIS CASE IS RESET UNTIL { ) t +{ .•;.l
( ) not reached/continued from Trial Docket
:::::____ ---- ---- ________________________ltla__C · _11// 7SO· 0 e
--------- ------~ . -··- ---- -·-~------------- -----------------2 f/'f} .
___ --·--
-~-----.:........ ---· ... -·- -~---- ---------------·-----. __ __________ _
-· -·-- ·-·- ;_
18
--------·--------· -· --·-·- -·-·-· --··------------------------- ------------- .
Court Olfic!ai
. .cb . ~-.
Li.~-,'6,~ ~
\ b\
.. 0
252ND DISTRICT C01JRT OF JEFFERSON COUNTY, TEXAS
No: 98575 State of Texas vs. HENRY, Willie Ill
Date: /0 -(-0 7 Offense:
AGGRAVATED ASSAULT
DEFERRED ADJUDICATION ORDER
TERM: THREE {3) Years
In the b~st interests of so?iety. and the defendant, after hearing evidence, the Court finds that it
substantiates the defendants gwlt; defers further proceedings without enterina an adjudication of guiit
for the te.rm ...shown. ~bove; and places the defendant under the 5 ~1 pervision '"'of the Jefferson County
Com~umty SuperviSion and corrections Department (JCCSCD), s·ubiect to your obeying the fol'ow1·ng
conditions: · · •
1. Commit no offense against the laws of thi`` State or of any ot11er state or of the United
States. ·
2. Avoid injurious or vicious habits.
3. Do not associate with any ~isreputable person or be present at any location where a
criminal act is being committed.
4. Report as directed by your' Community Supervision Officer and obey all rules and
regulations of the JCCSCD. .
5. Permit your Community Supervision Officer to visit you at home or elsewhere without
restriction.
6. Work faithfully at suitable employment, attend educational programs, and/or perform
Community Service Restitution for a total of not less than forty (40) hours weekly and
provide verification of such. '
7. Do not leave Jefferson County without the permission of your Community Supervision
Officer.
8. Properly support all of your dependents.
9. Immediately report to your Community StJpervision Officer any ·Change of address,
employment, or marital status; any arrest; and the source and amount of all income.
10. Do not use or possess any drug, except under the order of your doctor.
11. Do not become intoxicated or be under the ir.fluence of any intoxicating substance.
1.2. Attend rehabilitation, treatment, residential programs, and counseling as directed by your
Community Supervision Officer, pay for s.aid treatments as directed, and provide verification
of such.
13. Do not enter any bar, tavern, lounge, or sirr:ilar place.
14. Perform 800 hours of Community Service Restitution (CSR), a minimum of fifty percent
(50%) to be served within the first year of receiving community service, to be served at a
location t.o be determined later by the Court and the supervising jurisdiction. .
15. Be inside your home every day between 10:00 P.M,.and 6:00A.M., except for employment
purposes. ·
16. Abstain from the use of all intoxicating substances, including alcohol, in any form and at all
times.
17. Submit to alcohol and/or prug screening at the direction of the Jefferson County Community
Supervision and Corrections Department (JCC~iCD) or supervising jurisdiction.
18. Have no contact with the vlctim(s), either in person, by telephone, via mail, electronic
mailing, or through a third party: Barbara Wherry and Aqua Wherry .
23
.. -.{
19.
Submit to a Sex Offender ~ssessme~t.and pay the requirecffee($3"50.00):, as direbted'b .
J~1ffebrs?n Coun~y Commun1ty Superv1s1on and Corrections Department (JCCSCb)· ' which
WII e Included 1n the defendant's monthly installment.
20.
Transfer this case to Denton County, Texas for courtesy supervision. .The defehdant. is
ordered to obey all rules ~nd .regulations of the supervision jurisdiction.
21. Pay the amounts shown tn th1s order in the manner set out in this order.
You are hereby ordered to pay the following amounts:
Fine $ 750.00
Supervision Fees $ 60.00 /mo.
Court Cost $ 200.00
PSI Fee $ 350.00 Attorney Fee $ .;().
Crime Stoppers $ 50.00 (B)
Sex Offender Assessment Fee $ 350.00
Pay these sums in a monthly amount of$ 110.00
Follow all Special Conditions imposed in writing.
The Court authorizes your Community Supervision, Officer to modify conditions of community
supervision and to transfer you to any community supervision program or residential facility deemed
appropriate based upon your risk to the community and the level of your rehabilitation needs. If you do
not agree to the modification in writing, the Community Supervision Officer will refer the case to the
Court so that a hearing may be conducted."
Court Comments:
Judge Presiding
1have received a copy of this order. I agree to follow all ~ondition.s lmpo~e~. upon me and I know that
this community supervision can be revoked for any viola~ton. l.wtll. :em.atn 1n the legal c~stod~ of ~he
District Court of Jefferson County, Texas and 1 hereby wa1ve extradttlon lfl:am charged w1th a v1olat1on
and am arrested in another state.
Defendant
24
·-"
---
Sripulations. Waivc:rs c\: Judicial Admission
Cnm"·' nm·. ilic dclcndant. ,IDin(;d b)· 1111 counsel. ;JtHJ :\:.:Jt:::s tiut lundast;Jnd tk: forcgo111~·. ;Jcin~•.:nJ;•rihJilad~. If counsel ,,.,,s :~ppoin1cd. I g11l' ur Jnd \I'Jii'C am·1ir11c pr01'Jdcd 10 r.tc h· /;r,,·
``· prcp:frc fe`` lrt;:i_ I <1111 lcn;,li\ ~alisficd ,,·itlltilc rcprcscni
::11 Cl\ It' m·: b1 l;t\1. 1\'hcthn ot' forn;. subsL:.lrJ~C or pm~cdurc. Joined oy Ill) attornc1 _.I giYc up m1 ngh1 :c,
:• 1::r-' :r: 1ili:; ::;s:: :1nd :tn· fJ 0.ill 1c t/1:.: appc:nan-:c. :.:on:·ronwlion and ::ross cxamin:Jiion of th~ 11 1tn<::,scs
~(·n<.~til 1c' o~;il :; 1C 11riw:n s:ipulations and :1grcc that tiler ma:· ix: considc;c;d a> c\·ici::ncc in rm c;:s·~- i
i;;JI":..' rc:uJ ·.IJ..: cit:::<:"'!; insln;m;;:nl and :m anorn~y i:a.; c:-;pl:~incd i1 10 n1:.: and I COI!llnillcd c;J;:h :rnd :.:1·crY
~i:.:lll::ll! ;rlit!l.:.:d I 1.;r1·c trr Ill\' rig/11 ie; confidcnlii.!li!y oflhc prr.: or pn: 1c ;u:J :it:ll\crrb;;c! 10 hclorc llH h_1· Ilie D::fcmtu:l on Ihis dale. I hcrt:h' :.:cni!·_, ti:ili ik ihutni'PI'IIIi
':!Jr1wn b·.::i("1H' and 'JT\ !h(' docke1. siH!C! ~ndior coznnlltni!~· su~rvision (ildcr is i.h:H.o:' tile d~!~n~!,iiH ::~ dr.:,
E~IL ED
•~ 1
1
c 'r)n--'·
;· ;
````-- ! • u,.t. _.;..;·-:--=-----
: ' ,,
.~.us 2. ! ?ou:··
Ddrll(!ant\ Post Col!l'it:tion \Vain:n
'ill:.:; n:·'" !!I~ ::ki~ntLirJ! IOI!l('.C lw iii' cour:scl. ;rnd in IIT!ltll:! ;:nd inori2n Coun \I lior; /-or .6.;rcsr. or ]l!d:;_;IJ~:n! ,_,: "iut:::~·oi
LOLITA RAMOS
DISTRICT CLERK
APPEAL
CAUSE NO. 98575
THE STATE OF TEXAS * IN THE 252ND
* COURT OF
vs * JEFFERSON COUNTY, TEXAS
WILLIE HENRY III
CLERK'S CERTIFICATE
I, LOLITA RAMOS, Clerk of the District Courts of Jefferson County, Texas, Do hereby certify that
the documents contained in this record to which this certification is attached are all of the documents
specified by Texas rules of appellate procedure 34.5 (A) and all other documents timely requested by all
parties to this proceeding under Texas rules of appellate procedure 34.5 (A).
Given under my hand and seal of office in Jefferson County, Texas, this day
Name of Clerk: Debbie Folse
Title of Clerk: Deputy Clerk
70
VERNON'S TX. C.C.P.
Art. § 2.03(b)
It is the duty of the trial court, the attorney representing th
accused, the attorney representing the state and all peace off-
icers to so conduct themselves as to insure a fair trial for
both the State and the defendant, not impair the presumption
of innocence, and at the same time afford the public the ben-
efits of a free press.
Art. § 1.15
No person can be convicted of a felony ... and in no event shall
a person charged be convicted upon his plea without sufficient
evidence to support the same ....
Art. § 38.23
no evidence obtained by an office~ or other person in viola-
tion of any provisions of law or constitution of State or
United States shall be admitted in evidence against the accused
on the trial of any criminal case.
Art. § 2.01
Each District Attorney shall ... it shall be the primary duty of
all prosecuting attorneys ... not to convict, but to see that
justice is done ....
STATE_BAB_BULES
Rule 1 .01~7) )
Perhaps no professional shortcoming is more widely resented
than procrastination. A client's interests often can be adver-
sely affected by the passage of time or th change of conditions
in extreme instances, as when a lawyer overlooks a statute of
limitations, the client's legal position may be destroyed.
Rule 1.02
A lawyer shall abide by a client's decisions;
(a)(3) In a criminal case, after consultation with the lawyer
as to plea to be entered, whether to waive jury trial, and
whether the client will testify.
Rule 1.06
Conflict of interest prohibited
Rule 3.09 (a)
The prosecutor in a criminal case sh~ll; refrain from prosecu-
ting or threatening to prosecute a charge that he the prosecu-
tor knows is not supported by probable cause;
FEDERAL.CONSTITUTIONAL.AMENDMENTS
Amendment IV
The right of the pople to be secure in their persons, ... shall no
be violated,amd no warrants shall issue, but upon probable cause
supported by oath or affirmation ...
Amendment V
No person shall be held to answer for a capital, or otherwise
infamous crime ... nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life, lib-
erty, or proper~y, without due process of law; ...
Amendment VI
In all criminal prosecutions,the accusd shall enjoy the right
to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed, .. and
to be informed of the nature and cause of the accusation ... and
to have the Assistance of counsel for his defence.
Amendment XIV
All persons born or naturalized in the United States, .. nor shall
any State deprive any person of life, liberty, or property, with
-out due process of law; nor deny to any person within its juris
-diction the equal protection of the la~s-
TX ``~titon
TX. Constitution
Art. 1§10 - In all criminal prosecutions the accused shall have a
speedy and public trial by an impartial jury. he shall have the
right to demand the nature and cause of the accusation against
him, and to have a copy thereof. He shall not be compelled to
give evidence against himself, and shall have the right of being
heard by himself or counsel, or both, ...
Art. 1§15- The right of trial by jury shall remain inviolate ....
Art. 1§19- No citizen of this State shall be derived of life,
liberty, property, privileges or immunities, or in
any manner disfranchised, except by the due course
of the law of the land.
TX .. Penal.Code
V.T.c.A._§ 2.01
All persons are presume6 to be innocent and no person may be
convicted of an offense unless each element is proved beyond
a reasonable doubt.
V.T.C.A. § 1.07ta)(46)
Serious bodily injury means bodily injury that creates a sub-
stantial risk of death or that causes death, serious permanent
disfigurement, or protracted loss or impairment of the function
of any bodily member or organ.
1 REPORTER'S RECORD
2 VOLUME 1 OF 6
3 TRIAL COURT £AUSE NO. 98575
4
5 THE STATE OF TEXAS * IN THE 252ND DISTRICT
*
6 *
vs. * COURT OF
7 *
*
8 WILLIE HENRY III * JEFFERSON COUNTY, TEXAS
9
'10 * * * * * * * * * * * * * * * * * * * *
MASTER INDEX
11 * * * * * * * * * * * * * * * * * * * *
12
13 On the 27TH day of AUGUST, 2007, the following
14 proceedings came on to be heard in the above-entitled
15 and numbered cause before the Honorable Layne Walker,
16 Judge Presiding, held in Beaumont, Jefferson County,
17 Texas:
18
19 Proceedings reported by Machine Shorthand.
20
21
22
23
···~i 24
25
2
1 THE STATE OF TEXAS:
2 COUNTY OF JEFFERSON:
3
I, Jami Anderson, previous Official Court Reporter in and
4 for the 252nd Criminal District Court of Jefferson County,
State of Texas, do hereby certify that the above and
5 foregoing contains a true and correct transcription of all
portions of evidence and other proceedings requested in
6 writing by counsel for the parties to be included in this
volume of the Reporter's Record, in the above-styled and
7 numbered cause, all of which occurred in open court or in
chambers and were reported by me.
8
I further certify that this Reporter's Record of the
9 proceedings truly and correctly reflects the exhibits, if
any, admitted by the respective parties.
10
I further certify that the total cost for the preparation
11 of this Reporter's Record, Vols. 2 and 3, is
$-------------and was paid/will be paid by
12 ---------------------------- I
13 WITNESS MY O~FICIAL HAND this the -------- day of
------------------- J =~ 0 0 9 •
14
15
16
17
18 JAM! ANDERSON, Texas CSR 3225
Expiration Date: 12/31/10
19 Certified Shorthand Reporter
6852 Howe, Apt. C
20 Groves, Texas 77619
21
22
23
24
''- 25
...
1
• . :,,·..
1
2
REPORTER'S RECORD
VOLUME 4 OF 6
3 TRIAL COURT CAUSE NO. 98575
4
5 THE STATE OF TEXAS * IN THE 252ND DISTRICT
*
6 *
vs. * COURT OF
7 *
*
8 WILLIE HENRY III * JEFFERSON COUNTY, TEXAS
9
10 * * * * * * * * * * * * * * * * * * * *
MOTION TO REVOKE PROBATION
1.1 PLEA OF TRUE
....
* * * * * * * * * * * * * * * * * * * *
12
13
14 On the 8TH day of DECEMBER, 2008, the following
15 proceedings came on to be heard in the above-entitled
16 and numbered cause before the Honorable Layne Walker,
17 Judge Presiding, held in Beaumont, Jefferson County,
18 Texas:
19
20 Proceedings reported by Machine Shorthand.
21
22
23
24
25
SUMMER TANNER, CSR, RPR
252nd·District Court
2
• 1
2
3 FOR THE STATE:
A P P E A R A N C E S
4 Mr. Perry Thomas
SBOT NO. 19849120
5 Assistant District Attorney.
1001 Pearl, 3rd Floor
6 Beaumont, Texas 77701
7 FOR THE DEFENDANT:
8 Mr. Kevin Laine
SBOT NO. 00798313
9 Attorney at Law
1104 Orleans
10 Beaumontr Texas 77701
11
..
12
• 13
14
15
16
17
18
19
20
21
22
23
24
• 25
SUMMER TANNER, CSR, RPR
252nd Districi Court
..
3
• 1
2
3
VOLUME 4
MOTION TO REVOKE.PROBATION
PLEA OF TRUE
4 PAGE
5 Case Called 4
6 Defendant Pleads to Counts 4
7 Case reset 5
8 Reporter's Certificate 6
9
10
11
12
• 13
14
15
16
17
18
19
20
21
22
23
24
• 25
SUMMER TANNER, CSR, RPR
252nd District Court
4
• 1
2
3 Willie Henry.
THE COURT:
Kevin Laine?
Cause No. 98575 on
12/8/08
4 MR. LAINE: Yes, sir. He's in custody.
5· THE COURT: Good morning, sir. Are you
-
6 Willie Henry III?
7 THE DEFENDANT: Yes, sir. How you doing,
8 Your Honor?
9 THE COURT: Doing good~ Thank you. I
10 have a motion to revoke your unadjudicated probation.
11 Will he waive.the formal reading?
12 MR. LAINE: He will, Your Honor.
• 13 THE COURT: This motion states that on the
14 1st day of October of 2007, that you were placed on
15 probation for the offense of aggravated assault. I
16 found the evidence to be sufficient to find you guilty,
17 deferred the finding, placed you on probation for a
18 three-year period.
19 Count 1 alleges that you failed to
20 avoid injurious or vicious habits by making threatening
21 and/or harassing phone calls on or about the 20th day
22 of Ju 1 y of 2 0 0 8 . Is that true or not true?
23 THE DEFENDANT: True, Your Honor.
24 THE COURT: Count 2 alleges you failed to
• 25 provide verification of performing your community
SUMMER TANNER, CSR, RPR
252nd District Court
5
• 1
2
3
service hours . Is that true or not true?
THE DEFENDANT:
THE COURT:
True, Your Honor.
Have you entered into your
4 pleas of 11
true 11 to Counts 1 and 2 freely and
5 voluntarily?
6 THE DEFENDANT: Yes, sir.
7 THE COURT: Okay. I'm going to accept
8 your plea. I will reset your case for sentencing on
9 January 12th at 9:30. I'm going to get -an updated
10 report. Anything you want me to know -that's good about
11 you, make sure that you get that to Mr. Laine; and he
12 will get that to me. And I believe you .have a document
• 13 there that you've already executed .
14 Court Certification.
15 .not a plea bargain agreement.
That's the Trial
That certification states this is
Whatever decision I
.16 make, you can feel free to appeal me if you want to;
17 okay?
18 THE DEFENDANT: Yes, sir.
19 MR. LAINE: Thank you, Your Honor.
20 THE DEFENDANT: Thank you.
21
22
23
24
• 25
SUMMER TANNER, CSR, RPR
252nd District Court
6
• 1
2
3
THE STATE OF TEXAS)
COUNTY OF JEFFERSON)
REPORTER'S CERTIFICATE
4 I, Summer Tanner, Official Certified Shorthand
5 Reporter in and for the State of Texas, do hereby
6 certify that the above and foregoing contains a true
7 and correct transcription of all portions of evidence
8 and other proceedings requested in writing by counsel
9 for the parties to be included in this volume of the
10 Reporter's Record, in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
• 13'
14
I further certify that this Reporter's Record of
the proceedings truly and correctly reflecis the
15 exhibits, if any, admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is
18 $ __ 1&~-7~---- and was paid by ~[~j~-``-
19 WITNESS MY OFFICIAL HAND this is the
20 _______U~----- day of -``------' 2009.
21
22 -- ~--------
23 Summer Tanner, RPR
Texas CSR #8208
24 Expiration Date: 12/31/10
•
Official Court Reporter
25 Jefferson County, Texas
Beaumont, Texas 77701
SUMMER TANNER, CSR, RPR
252nd District Court
1
1 REPORTER'S RECORD
2 VOLUME 5 OF 6
-;.::
·- .-· 3 TRIAL COURT CAUSE NO. 98575
4
5 THE STATE OF TEXAS * IN THE 252ND 'DISTRICT
*
6 *
vs. *' COURT OF
7 *
*
8 WILLIE HENRY III * JEFFERSON COUNTY, TEXAS
9
10 * * * * * * * * * * * * * * * * * * * *
MOTION TO REVOKE PROBATION
11 SENTENCING
* * * * * * * * * * * * * * * * * * * *
12
13
14 On the 12TH day of JANUARY, 2009, the following
15 ~proceedings came on to be heard in the above-entitled
16 and numbered cause before the Honorable Layne Walker,
17 Judge Presiding, held in Beaumont, Jefferson County,
18 Texas:
19
20 Proceedings reported by Machine Shorthand.
21
22
23
24
25
SUMMER TANNER, CSR, RPR
\ 252nd District Court .O. . . . \.)_ ~·o::~.·.
CQ)
·:-~ -. :, . u
..... , .
·' :~:'·
2
1
·~ 2
A P P E A R A N C E S
3 FOR THE STATE:
4 Mr. Perry Thomas
SBOT NO. 19849120
5 Assistant District .Attorney
1001 Pearl, 3rd Floor
6 Beaumont, Texas 77701
7 FOR THE DEFENDANT:
8 Mr. Kevin Laine
SBOT NO. 00798313
9 Attorney at Law
1104 Orleans Street
10 Beaumont, Texas 77701
11
12
• 13
14
15
16
17
18
19
20
21
22
23
24
\
• 25
SUMMER TANNER, CSR, RPR
252nd District Court
3
1 VOLUME 5
2 MOTION TO REVOKE PROBATION
3 SENTENCING
4 PAGE
5 Case Called 4
6 Defendant's Comments 4
7 State's Comments 6
8 Case Recalled 9
9 Audio Played to Court 9
10 Defendant's Comments 14
11 State's Comments 15
12 Defendant Sentenced 17
13 Reporter's Certificate 18
14
15
16
17
18
19
20
21
22
23
24
25
SUMMER TANNER, CSR, RPR
252nd District Court
4
1 1/12/09
2 THE COURT: 98575 on Willie Ray Henry.
3 THE DEFENDANT: Good morning/ Your Honor.
4 THE COURT: Good morning. How are· you?
5 THE DEFENDANT: I • m doing good.
6 THE COURT: Are you Willie Ray Henry?
7 THE DEFENDANT: Yes 1 sir.
8 THE COURT: Okay. Mr. Laine~· do you have
9 any comments?
10 MR. LAINE: Yes 1 Your Honor. Mr. Henry•s
11 case was transferred to Denton County. He had a sex
12 offender assessment. That assessment concluded with
13 classes that he was required to go to. He began his
14 reporting to the probation department once a month and
15 then twice a month with home visits every other Monday.
16 Once he got there/ he went to the end of April class
17 for the offender -- he went to the May 8th class/ then
18 he went to his May 16th class there. That class was
19 with the victim well 1 with Courtney Smith 1 who is
20 the counselor. May 16th they said we are going to
21 pause your classes for a polygraph which is part of
22 the program
23 THE COURT: Let me interrupt you. Is
24 Courtney Smith here?
25 MR. THOMAS: The probation officer from
SUMMER TANNER. I CSR I RPR
252nd District Court
5
1 Denton County?
2 THE COURT: Yes.
3 MR. THOMAS: No. They -- they are willing
4 to come if the Court would want to hear
5 THE COURT: No. I was just wondering. I
6 didn't mean to interrupt you.
7 MR. LAINE: So, May 16th was hi~ last
8 class with Ms. Smith. Then he had to go get a
9 polygraph. The polygrap.h was taken, I think, the
10 30th of May. Right after -- I'm sorry to put this in
11 chronological order, Your Honor; but it kind of leads
12 up to how this outburst came about. May 30th is when
13 he took the polygraph. His probation officer here said
14 report back -- report back to his classes. He had
15 called -- and we got the phone records, Your Honor,
16 just because we wanted the Court to know he really
17 was -- he's been reporting every time that the officer
18 has wanted to know where he was. They knew where he
19 was.
20 He had actually reported and called
21 after he had the polygraph. He called the 2nd of July,
22 the 3rd of July, the 14th of July, the 16th of July,
23 five times on the 20th of July. What was happening
24 was, I think Ms. Smith was busy with her classes and
25 wasn't getting back with -- with Mr. Henry. And
SUMMER TANNER, CSR, RPR
252nd District Court
6
1 Mr. Henry was steady calling Brian back here; and Brian
2 was saying, you are lying. You are not calling her.
3 You are not getting back with the results of the
4 polygraph from Ms. Smith.
5 Well, Ms. Smith, at the very
6 beginning of their relationship, their counselling, she
7 said, I am a "B" and I am always going to be a "B" and
8 that•s how you have to take me.
9 Well, on July 20th, he left messages
10 and said, I know you said you are going to be a· "B" and
11 I think you are a "B, " because you are going to get
12 your -- you are getting me in trouble with my probation
13 officer down in Beaumont because he thinks I am lying.
14 I took the polygraph. I am trying to get you the
15 results so I can steady go back to my classe~.
16 So, Your Honor, what he said on those
17 recordings is totally inappropriate. He had surgery to
18 his hand, and he was on medication prescribed. And
19 he shouldn • t. have called her a "B" the number of times
'
20 he did. He•s been in jail for three months, Your
21 Honor. We would ask you sanction him, make him stay
22 another three months in jail. There•s no new offenses.
23 He is a medium risk, according to the report.
24 THE COURT: Okay. Mr. Thomas?
25 MR. THOMAS: Judge, I don•t know if
SUMMER TANNER, CSR, RPR
252nd District Court
7
1 Mr. Diaz was able to e-mail the calls to the Court or
2 not. 'I have them on a CD, if the Court wants to hear
3 them. I had an opportunity to hear the calls he
4 THE COURT: I want to play them.
5 MR. THOMAS: If you will give me a break,
6 I will get a player down here; and I will I play them
7 for you.
8 THE COURT: You bet. Before we get to
9 that point, what will I hear? Whenever I hear these
10 CDs, what am I going to hear?
11 THE DEFENDANT: I know, Your Honor, I us~d
12 the "B" word.
13 THE COURT: Okay.
14 THE DEFENDANT: I did tell her to quit
15 lying on me.
16 THE COURT: Okay.
17 THE DEFENDANT: And 1n all honesty, I
18 really don't remember the entire conversation. What
19 l;appened was
20 THE COURT: Had you been drinking or
21 smoking or anything?
22 THE DEFENDANT: No. I was on the
23 hydrocod(Jne ancl.. -~YJ;"it:.a.
24 THE COURT: Uh-huh.
25 THE DEFENDANT: And I actually don't
SUMMER TANNER, CSR, RPR
252nd District Court
8
1 remember the conversation. My wife, who is here today,
2 walked in and told me what comments I made. And
3 immediately when she made me aware of it, I did call
4 Ms. Courtney -- I forgot her last name. I did call
5 Ms. Courtney back, and I did apologize to her --
6 THE COURT: Uh-huh.
7 THE DEFENDANT: -- and ask her --
8 THE COURT: So, I'm going to hear that you
9 called her the "B" word. I will hear that you did
10 what?
11 THE DEFENDANT: Told her to stop lying on
12 me. And my wife just told me I used quite a bit of
13 profanity, which anyone who knows me know I don't use
14 profanity whatsoever.
15 THE COURT: Am I going to hear any hatred?
16 THE DEFENDANT: I -- honestly,
17 Judge Walker, I'm not I -don't
~ -....
know. I don't
-· ··----
18 remem:q~_r anything
--------------·-
,~--·--·- -----.....
--·---------~------
19 THE COURT: Okay.
20 THE DEFENDANT: that was said. But my
21 wife did tell me it was awful, and that's why I picked
22 up the phone and apologized to her.
23 THE COURT: If you would, would you
24 call -- use this phone right here and tell somebody to
25 bring something down. I look forward to hearing it;
SUMMER TANNER, CSR, RPR
252nd District Court
9
1 okay? If it will be what you say, then i t ' s not going
2 to be that big of a deal.
3 (PAUSE IN PROCEEDINGS)
4 THE COURT: All right. I want to hear
5 that tape. Recall on 98575 on Willie Ray Henry. We
6 are ready -- hang on. Before I get started, I am going
7 to hear the "B" word, I am going to hear some fussing.
8 THE DEFENDANT: Some profanity, my wife
9 told me.
10 THE COURT: Profanity?
11 THE DEFENDANT: Yes, sir. Again, I can't
12 really -- I don't remember. I was on the· medication.
----------------~-----·---·-------------·
13 THE COURT: Okay.
14 THE DEFENDANT:
\
My wife is here.
J
She can
15 probably tell you better than I can.
16 THE COURT: No. Your wife isn't the one
17 going to the p~nit;:er:``-Cl.FX. Let's go ahead.
18 COURT REPORTER: Do you want this on the
19 record?
20 THE COURT: No.
21 (AUDIO PLAYED TO COURT)
22 THE COURT: Wayne, I need them back in the
23 back to :De quiet.
24 (AUDIO PLAYED TO COURT)
25 THE COURT: All right. So, we did use the
SUMMER TANNER, CSR, RPR
252nd District Court
10
1 11
B 11 word and a few other things; right?
2 THE DEFENDANT: Yes, sir.
3 THE COURT: And that was your probation
4 officer?
5 THE DEFENDANT: That was the ~ounselor's
6 office.
7 THE COURT: Courtney Smith and then
8 Brian --
9 THE DEFENDANT: Is the Denton County
10 probation officer~
11 THE COURT: Right. Mr.
12 THE DEFENDANT: May I -- sorry. Go --
13 THE COURT: No. Go right ahead.
14 THE DEFENDANT: I sound -- I admit it
15 sounds awful. That's exactly what my wife had told me,
16 that it was pretty bad. I did call back apologizing
17 and asking for him that week, Your Honor. I'm trying
18 not to take up much time, but to lead up --
19 THE COURT: Man, you take whatever time
20 you need. This is your life.
21 THE DEFENDANT: That conversation lead up
22 when -- it was a lot of frustration, because when I
23 walked into Courtney's office for that second meeting,
24 she addressed me and she just told me point-blank,
25 Willie, I 'm a 11
B, 11
call me a "B. '·' I really don't care.
SUMMER TANNER, CSR, RPR
252nd District Court
11
1 You're a lying 11
SOB. 11
2 And she used other profanity -- which
3 I shouldn't have allowed myself to stoop to the same
4 level, and I was wrong. I do·apologize to you and this
5 Court, as well --
6 THE COURT: Let me ask --
7 THE DEFENDANT: what I did to
8 Ms .. Courtney
9 THE COURT: you a question: Did you
10 only do two years in college study in psychology, or do
11 you have more psychological training than that?
12 THE DEFENDANT: I was in my third year at
13 UTA.
14 THE COURT: So, you had three years of
15 studying psychology?
16 THE DEFENDANT: Yes, sir.
17 THE COURT: And then you said you were a
18 minister?
19 THE DEFENDANT: Yes, sir.
20 THE COURT: Okay. And the offense that
21 you are here for is aggravated assault, and that was --
22 the child was how old?
23 MR. THOMAS: It was an adult.
24 THE COURT: I mean -- I'm sorry.
25 MR. LAINE: Your Honor, I believe he was
SUMMER TANNER, CSR, RPR
252nd District Court
12
1 32, and she was 39.
2 THE COURT: I'm sorry. Yeah. You said
3 that you should be allowed to have concubines like King
4 David in the Old Testament.
5 THE DEFENDANT: That was not true. Your
6 Honor, to my knowledge, King David didn't even have
7 concubines. Solomon did-- which I've never taught on
8 King Solomon. What -- that is a little more
9 complicated than it seems. And I had no idea, Your
10 Honor -- I never .gg_t____a report of what I was alleged to
11 have done until I went to take the polygraph in May of
12 2007 (sic).
13 When I saw what I was accused of, it
14 did bother me because that's not how it happened. I
15 did have an affair, which was in Alabama in '99. She
16 then got her moved in with my wife and I -- moved to
17 Texas, moved in with us here in Beaumont. Upon her
18 moving, I did have intercourse with her one more time.
19 THE COURT: Okay.
20 THE DEFENDANT: She then joined the
21 church. After she joined the church is when I cut the
22 relationship off. She did get upset. She went to my
23 wife actually -- because I did tell my wife about it
24 when it happened. She went to my wife and asked my
25 wife if I could impregnate her because God told her I
SUMMER TANNER, CSR, RPR
252nd District Court
.L3
1 was supposed to be her husband. At that point, my wife
2 asked her to move out the house.
3 THE COURT: Uh-huh.
4 THE DEFENDANT: She asked me did she have
5 to move.
6 I said, yes, if that's what she~told
7 you.
8 Then she told me, if it's the last
9 thing I do, I will get you. I will find a way to get
10 you, and you will never find me.
11 And that was how -- that was the last
12 time I saw her. One of things that bothered me in the
13 report, as well, when I read it, was the other
G 14 accusations on her daughter. And she got up in church,
15 as well, as made accusations
16 THE COURT: On the 16-year-old daughter?
17 THE DEFENDANT: Yes.
18 THE COURT: They say you impregnated her?
19 THE DEFENDANT: Right. She also made
20 accusations -- which I didn't see that report. She got
21 up in the church that she went to and told them I had
22 relations with my 22-year-old daughter at that time.
23 She was only -- she had never met her, but she told
24 everybody I did and that's why she wasn't with me,
25 which was not the case.
0 She was just living with her
SUMMER TANNER, CSR, RPR
252nd District Court
13
1 was supposed to be her husband. At that point, my wife
2 asked her to move out the house.
3 THE COURT: Uh-huh.
'
4 THE DEFENDANT: She asked me did she have
5 to move.
6 I said, yes, if that's what she told
7 you.
8 Then she told me, if i t ' s the last
9 thing I do, I will get you. I will find a way to get
10 you, and you will never find me.
11 And that was how -- that was the last
12 time I saw her. One of things that bothered me in the
13 report, as well, when I read it, was the other
14 accusations on her daughter. And she got up in church,
15 as well, as made accusations
16 THE COURT: On the 16-year-old daughter?
17 THE DEFENDANT: Yes.
18 THE COURT: They say you impregnated her?
19 THE DEFENDANT: Right. She also made
20 accusations -- which I didn't see that report. She got
21 up in the church that she ·went to and told them I had
22 relations with my 22-year-old daughter at that time.
23 She was only -- she had never met her, but she told
24 everybody I did and that's why she wasn't with me,
25 which was not the case. She was just living with her
SUMMER TANNER, CSR, RPR
252nd District Court
14
1 mother at that time.
2 MR. LAINE: Your Honor, just as far as
3 this accusation, which is despicable, clearly he did
4 it. Clearly he has accepted responsibility.for that.
5 THE COURT: Well, that's what I am trying
6 to get down to is that -- at the time you said the only
7 reason that you pled guilty was because you ran out of
8 money to pay your attornev. You said the victims made
9 the story up.
10 THE DEFENDANT: Right. And I was going to
11 go -- I was going to go to trial, but Mr. Samuel told
12 me I had to come up with another $3500.
13 THE COURT: But now you're standing here
14 telling me that you did do this and you are guilty
15 and --
16 THE DEFENDANT: Of -- what happened, I
17 didn't -- what he told me I was -- I was found guilty
I
18 of is being a pastor and manipulating a relationship,
19 and that's not how i t - -
20 THE COURT: That's pretty much why I am
21 spending so much time with you is just to pretty much
22 show on the record how manipulative you are.
23 THE DEFENDANT: Okay.
24 MR. LAINE: Your Honor, I -- as far as the
25 accusation that he's in violation of probation -- what
SUMMER TANNER, CSR, RPR
252nd District Court
1 he did was despicable. He -- he did call about four or
0 2 five times before. If it ~s a new offense, as far as
3 harassment, a misdemeanor, it would car.ry 180 days
4 THE COURT: No. It goes much deeper than
5 that.
6 MR. LAINE: Well, Your Honor, I think -- I
7 think that there is some -- something should be said
8 that. he was on medication at the time.
9 THE COURT: That's not what he said.
10 THE DEFENDANT: Yes, sir.
11 THE COURT: That's not at all what he
12 said. What he said was he hadn't been smoking, he
13 hadn't been drinking. He's just as sober -- he had 12
0 14 witnesses, the whole nine yards.
15 THE DEFENDANT: And
16 THE COURT: And I think that the real
17 truth is is that's more than manipulation. And after
18 it was all said and done, you thought, oh, my God, what
19 if she recorded all this and this Judge hears this.
20 THE DEFENDANT: Honest --
21 THE COURT: Anyway, I've heard enough.
22 Mr. Thomas, what are your comments?
23 MR. THOMAS: Judge, there's another area
24 that interests me about how manipulative he is, is that
25
G when he makes his first phone call to the counselor in
SUMMER TANNER, CSR, RPR
252nd District Court
.lt)
1 Denton County, he says, you know, I need anger
0 2 management. I'm mad, and the reason why is because I
3 need anger management.
4 Well, he's quite under control today
5 in this courtroom in front of you. He can turn it on,
6 turn it off when he wants to when it's convenient
7 for him. And if he wants to be mad at somebody, he
8 will; and if he wants to be nice, he can. That
9 indicates to me he's in complete control of his
10 emotions. And, again, it's just another way to
11 manipulate this system and this Court. State
12 recommends revocation in the case with appropriate
0 13 amount of pen time.
14 MR. LAINE: Your Honor, all these calls
15 were made on the same day. H~ had medication when he
16 made the calls, and he. said he doesn't recall what he
17 said. We have provisions in law to give him leniency
18 for that or, at least, some consideration.
19 THE COURT: I think that's if I believe
20 that he was, in fact, on medication, which I do not. I
21 quite honestly don't believe a word --
22 MR. LAINE: Your Honor --
23 THE COURT: he's saying.
24 MR. LAINE: I have a list of
0 25 medications and his prescriptions.
SUMMER TANNER, CSR, RPR
252nd District Court
17
1 THE COURT: Th~t's all right. I don't
think that proves whether he was on them or not.
In your case, Mr. Henry, I find the
evidence to be sufficient to find Count 1 and 2 to be
true. They are true. I hereby revoke your
unadjudicated probation. I now find you.guilty of the
7 offense of aggravated assault. You are therefore
8 guilty of the offense. I assess your punishment at
18 years' confinement in the Institutional Division.
1 You will receive credit for any and all time that you
1 are entitled to by law. Again, I've handed you the
1 certification stating that this is not a plea bargain
-·
-....
agreement. You feel free to appeal my decision. Have
1 a good day.
SUMMER TANNER, CSR, RPR
252nd District Court
• 1
2
3
THE STATE OF TEXAS)
COUNTY OF JEFFERSON)
REPORTER'S CERTIFICATE
4 I I Summer Tanner, Official Certified Shorthand
5 Reporter in and for the State of Texas, do hereby
6 certify that the above and foregoing contains a true
7 and correct transcription of all portions of evidence
8 and other proceedings requested in writing by counsel
9 for the parties to be included in this volume of the
10 Reporter's Record, in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me .
• 13
14
I further certify that this Reporter's Record of
the proceedings truly and correctly reflects the
15 exhibits, if any, admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is
18 $ _j_~q'-]2______ and was paid by JtiliklVL_hllrL~-
19 WITNESS MY OFFICIAL HAND this is the
20 ----~--------day of ___ JCt``-~----' 2009.
-~-~---------
21
22
23 Summer Tanner, RPR
Texas CSR #8208
24 Expiration Date: 12/31/10
·- 25
Official Court Reporter
Jefferson County, Texas
Beaumont, Texas 77701
SUMMER TANNER, CSR, RPR
252nd District Court
)
In The
FILED
JUL 2 5 2012
Court ofAppeals CAROL ANNE HARLEY
CLERK OF THE COURT
NINTH COURT OF APPEALS
Ninth District of Texas at Beaumont .
NO. 09-12-00309-CR
IN RE WILLIE HENRY, III
Original Proceeding
MEMORANDUM OPINION
Relator Willie Henry, III filed a petition for writ of mandamus with this Court.
Henry's petition apparently seeks to attack the judgment in his underlying criminal case,
alleging (1) the trial court lacked jurisdiction and (2) the evidence was insufficient
thereby rendering the judgment void. The judgment Henry complains of and the attached
exhibits pertain to trial cause number 98575, which was previously appealed to this Court
and affirmed. See Henry v. State, No. 09-09-00029-CR, 2009 WL 2044819 (Tex. App.-
Beaumont July 15, 2009, no pet.) (mem. op., not designated for publication).
Relator has not demonstrated that he is clearly entitled to mandamus relief from
this Court. See State ex rei. Hal v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924,
927 (Tex. Crim. App. 2001) (To demonstrate entitlement to a writ of mandamus, a relator
1
must establish that the trial court failed to perform a ministerial duty, and that relator has
no other adequate legal remedy.). Accordingly, we deny relief on the petition for writ of
mandamus.
PETITION DENIED.
PER CURIAM
Opinion Delivered July 25, 2012
Before McKeithen, C.J., Kreger and Horton, JJ.
2