Laroyce Demond Allen v. State ( 2016 )

IN THE COURT OF APPEALS
SIXTH JUDICIAL DISTRICT OF TEXAS
FILED IN
6th COURT OF APPEALS
AT TEXARKANA TEXARKANA, TEXAS
10/7/2016 9:59:00 AM
DEBBIE AUTREY
Clerk
LAROYCE DEMOND ALLEN §
Appellant §
§
VS. § No. 06-16-00142-CR
§
STATE OF TEXAS §
Appellee §
ANDERS BRIEF
APPEALED FROM CAUSE NO. CR 15-164 IN THE FOURTH JUDICIAL
DISTRICT COURT OF RUSK COUNTY, TEXAS
ORAL ARGUMENT IS NOT REQUESTED
CLAY THOMAS, P.C.
ATTORNEY FOR APPELLANT
3548 NE STALLINGS DRIVE
NACOGDOCHES, TEXAS 75965
936.715.7144
877.899.0382 (FACSIMILE)
STATE OF TEXAS BAR CARD
NUMBER 24088520
clay.thomas@claythomaspc.com
THE PARTIES INVOLVED
MR. LAROYCE DEMOND ALLEN APPELLANT
TDCJ No. 02078253
Joe F. Gurney Unit
1385 FM 3328
Palestine, Texas 75803
MR. CLAY DEAN THOMAS ATTORNEY FOR APPELLANT
3548 NE Stallings Drive (APPEAL)
Nacogdoches, Texas 75965
MR. JEFFREY SANDERS ATTORNEY FOR APPELLANT
120 South Broadway (TRIAL)
Suite 112
Tyler, Texas 75702
MR. MICHAEL ELWOOD DISTRICT ATTORNEY
JIMERSON RUSK COUNTY, TEXAS
115 North Main Street
Henderson, Texas 75652
MR. ZACHARY JAMES WAVRUSA ASSISTANT DISTRICT ATTORNEY
115 North Main Street RUSK COUNTY, TEXAS
Henderson, Texas 75652
JUDGE JAMES CLAY GOSSETT JUDGE PRESIDING
115 North Main Street 4 JUDICIAL DISTRICT COURT OF
Henderson, Texas 75652 RUSK COUNTY, TEXAS
Contents
JURISDICTION OF THE COURT .................................................................... 1
STATEMENT OF THE CASE ........................................................................... 1
STATEMENT OF FACTS .................................................................................. 2
ISSUES PRESENTED FOR REVIEW .............................................................. 5
ARGUMENT AND AUTHORITIES............................................................... 6
GROUND OF ERROR ........................................................................................ 7
ISSUES PRESENTED FOR REVIEW .............................................................. 7
1. The Indictment Is Sufficient As A Matter Of Law ................................... 7
2. There Were No Improper Adverse Pretrial Rulings Affecting The
Course Of The Trial. ........................................................................................ 8
3. There Were No Adverse Improper Adverse Rulings During The Trial
On Objections Or Motions Had Been Improperly Made Such That They
Created An Adverse Effect On The Result Of The Trial. ............................ 11
4. There Were No Adverse Improper Rulings On Post-Trial Motions...... 14
5. Jury Selection Was Properly Conducted In Order That A Fair And
Impartial Jury Was Obtained. ....................................................................... 14
i
6. The Jury Instructions Were Properly Formulated. ................................ 14
7. The Evidence Was Sufficiently Adduced At Trial To The Offense Upon
Which The Conviction Was Based................................................................. 16
8. There Was No Failure By Trial Counsel To Object To Fundamental
Error. ............................................................................................................... 18
9. There Were No Improper Adverse Rulings During The Punishment
Phase On Objections Or Motions. ................................................................. 18
10. The Sentence Was In The Applicable Range Of Punishment. ............ 19
11. The Written Judgment Accurately Reflects The Sentence Imposed
And Credit Was Properly Applied. ............................................................... 19
12. Based Upon The Record, Appellant Did Not Receive Ineffective
Assistance Of Trial Counsel. .......................................................................... 19
CONCLUSION .................................................................................................. 20
PRAYER ............................................................................................................ 20
CERTIFICATE OF COMPLIANCE ............................................................... 21
CERTIFICATE OF SERVICE ......................................................................... 21
ii
Cases
Hernandez v, State, 726 S.W.2d 53 (Tex. Crim. App. 1986) ..................................20
Holland v. State, 761 S.W.2d 307 (Tex. Crim. App. 1988) ....................................20
Meza v. State of Texas, 206 S.W.3d 684 (Tex. Crim. App. 2006) ............................6
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) 20,
21
Wright v. State, 28 S.W.3d 526 (Tex. Crim. App. 2000) ....................................8, 16
Statutes
Tex. Code Crim. Proc. Ann. art. 12.01 ......................................................................8
Tex. Code Crim. Proc. Ann. art. 21.02 ......................................................................7
Tex. Code Crim. Proc. Ann. art. 36.14 ....................................................................14
Tex. Penal Code Ann. § 12.32(a).............................................................................18
Tex. Penal Code Ann. § 12.32(b) ............................................................................18
Tex. Penal Code Ann. § 22.011 ...............................................................................18
Tex. Penal Code Ann. § 22.011(a)(2) ........................................................................8
Rules
Tex. R. App. P. 22......................................................................................................1
iii
Tex. R. App. P. 38......................................................................................................5
Tex. R. App. P. 9.4(i)(1) ..........................................................................................21
Constitutional Provisions
Tex. Const. art. V, § 6 ................................................................................................1
iv
IN THE COURT OF APPEALS
SIXTH JUDICIAL DISTRICT OF TEXAS
AT TEXARKANA
LAROYCE DEMOND ALLEN §
Appellant §
§
VS. § No. 06-16-00142-CR
§
STATE OF TEXAS §
Appellee §
TO THE HONORABLE COURT OF APPEALS
ANDERS BRIEF
JURISDICTION OF THE COURT
This is an Anders appeal from a final judgment of conviction and sentence
entered on June 24, 2016 by the 4th Judicial District Court of Rusk County, Texas.
Appellant was found guilty in a jury trial for Sexual Assault of a Child. (4 R.R. 99)
The Court of Appeals has jurisdiction over this matter in accordance with Rule 22
of the Texas Rules of Appellate Procedure and Article 5, § 6 of the Constitution of
the State of Texas.
STATEMENT OF THE CASE
The Appellant was charged by indictment with Sexual Assault of a Child. (3
R.R. 7) (1 C.R. 5) The Appellant entered a plea of not guilty (3 R.R. 8) and a jury
1
trial was had beginning on June 23, 2016. On June 24, 2016, the jury returned a
verdict of guilty. (4 R.R. 99) On that day, the trial then proceeded into the
punishment phase before the jury. The jury assessed punishment to be twenty years
in the Texas Department of Criminal Justice – Institutional Division. (4 R.R. 125)
The trial court certified that the Appellant had the right to appeal. (1 C.R. 98)
Appellant timely filed notice of appeal on 20 July 2016. (1 C.R. 101) The record of
the case consists of five volumes of Transcript and one volume provided by the
District Clerk. Reference to the Transcript will be (Volume Number, R.R., Page
Number) For example, the 1st Volume page 30 will be referenced (1 R.R. 30).
Clerk’s Record will be referenced likewise by C.R.
STATEMENT OF FACTS
In the early morning hours on June 10, 2015, Herbert Adams discovered that
his granddaughter, XXXX, was not asleep in her bed in the home he shared with his
daughter Petrice Adams, her husband, Laroyce Allen, and Petrice’s younger
daughter, H. (3 R.R. 72) Upon discovery of the missing grandchild, Herbert Adams
awakened Petrice Adams and Laroyce Allen to inform them that XXXX was not in
the residence. After a brief search of the home and the grounds, the parties
discovered a Jeep owned by Herbert Adams was missing. (3 R.R. 72)
Throughout the early morning hours, a search was conducted for XXXX.
Petrice Adams and Laroyce Allen located the Jeep soon thereafter and lay in wait
2
for the return of XXXX. (4 R.R. 23) After several hours, Petrice Adams was taken
home by her husband so that she could prepare her younger child for school. Upon
Laroyce Adams’ return to the earlier location of the Jeep, he discovered that it had
been moved. (4 R.R. 24) Retrieving his wife, they both searched neighborhoods and
contacted family friends in an attempt to find XXXX.
During this period, they discovered the home of Davonte Wilson, a young
man whose parents worked at night. The couple knocked on the door of the home
but were unable to receive a response. Soon thereafter, neighborhood boys
volunteered to contact XXXX and Mr. Wilson. Subsequently, XXXX left the Wilson
home and entered the vehicle with the couple. (4 R.R. 25)
Upon return to the home of Herbert Adams, Laroyce Allen began to strip the
closet and drawers of XXXX’s room, dumping the contents of those on the floor,
telling her to clean it up as punishment. (4 R.R. 27) In the trial, there was conflicting
testimony as to what party (whether Herbert Adams or Petrice Adams) was first told
the reasons for XXXX’s behavior, but all testimony indicated XXXX had accused
Laroyce Allen of sexually assaulting his stepdaughter. (3 R.R. 74) (3 R.R. 178-179)
At some instance on that afternoon, Herbert Adams was given a letter that XXXX
claimed to have been given to her by Laroyce Allen. (3 R.R. 75) (5 R.R. State’s
Exhibit 4) The letter was purported to describe past sexual acts between Laroyce
Allen and XXXX and suggested a quid pro quo arrangement whereby Laroyce Allen
3
would continue financial remuneration for sexual acts. (3 R.R. 106) (3 R.R. 138)
Upon receipt of the letter, he asked Petrice Adams for any other writings from her
husband to use as exemplars.
Complaint was made to law enforcement authorities and the matter was
investigated by the Rusk County Sheriff’s Department. During the investigation and
search of the bedroom closet of Laroyce Allen, a yellow notebook filled with
writings written by Laroyce to his wife was discovered. (5 R.R. State’s Exhibit 5)
These were taken into evidence. Contemporaneous to the search, a purported
contract for sexual services was also found among the belongings in the Allen’s
bedroom. (3 R.R. 53) (3 R.R. 111-114) (5 R.R. State’s Exhibit 6)
Shortly thereafter, XXXX was examined by SANE Nurse Susan Camazine.
On June 11, 2015, an affidavit regarding the sexual assault was sworn by Ben
Reynolds, the lead investigator. On June 12, 2015, a warrant was issued for the arrest
of Laroyce Demond Allen for Sexual Assault. On August 4, 2015, Laroyce Demond
Allen was indicted for the sexual assault of a child younger than 17 years of age. (1
C.R. 5)
On the 28th day of August, 2015, the Honorable R. Darryll Bennett was
appointed as counsel for Mr. Allen. (1 C.R. 17) On August 31, 2015, Mr. Bennett’s
counsel was discharged and the honorable Joe Shumate was appointed as Mr.
Allen’s counsel. (1 C.R. 21) On September 3, 2015, Mr. Shumate made a Motion to
4
Withdraw as Counsel citing a conflict of interest with another case. (1 C.R. 22-23)
On September 8, 2015, the court ordered a Substitution of Counsel and the
Honorable Jeff Sanders was appointed as Mr. Allen’s counsel. (1 C.R. 24)
ISSUES PRESENTED FOR REVIEW
The following issues are presented for appellate review [see Texas R. App. P.
38].The undersigned counsel’s review of the record and law reveals no matters of
reversible error or issues that can be advanced in good faith. Thus, the questions
raised in this Anders appeal pertain to the following issues:
(1) Whether the indictment was sufficient as a matter of law.
(2) Whether any adverse pretrial rulings affecting the course of the trial were
improper.
(3) Whether any adverse rulings during the trial on objections or motions had
been improperly made such that they created an adverse effect on the result of
the trial.
(4) Whether there were any adverse rulings on post-trial motions.
(5) Whether jury selection was properly conducted in order that a fair and
impartial jury may have been obtained.
(6) Whether jury instructions were properly formulated.
5
(7) Whether the evidence was sufficiently adduced at trial to the offense upon
which the conviction was based.
(8) Whether there was any failure by trial counsel to object to fundamental error.
(9) Whether there were any improper adverse rulings during the punishment
phase on objections or motions.
(10) Whether the sentence was in the applicable range of punishment.
(11) Whether the written judgment accurately reflects the sentence imposed
and whether any credit was properly applied.
(12) Based upon the record, whether Appellant received ineffective
assistance of trial counsel.
ARGUMENT AND AUTHORITIES
This brief is an Anders brief in support of appellate counsel’s motion to
withdraw. In compliance with the Anders procedure, as set forth in Meza v. State of
Texas, 206 S.W.3d 684 (Tex. Crim. App. 2006), appellate counsel has filed the
following:
1. Motion to Withdraw.
2. Notice of filing of Anders brief, which includes a copy of the letter to
the Appellant informing him that:
a. Counsel has provided him with a copy of the brief.
b. Counsel has informed Appellant the right to review the record.
6
c. Counsel has informed Appellant of the right to file a brief or
other response in his own behalf, and
d. Counsel has informed Appellant of the right to pursue a petition
for discretionary review in the Texas Court of Criminal Appeals,
should the court of appeals deny him relief on appeal.
GROUND OF ERROR
NO ARGUABLE ISSUES OF REVERSIBLE ERROR EXIST IN THE CASE
ISSUES PRESENTED FOR REVIEW
1. The Indictment Is Sufficient As A Matter Of Law
Tex. Code Crim. Proc. Ann. art. 21.02 codifies the requisites for an indictment
in the State of Texas. The indictment in this matter states it is “In the name and
authority of The State of Texas”; that the Grand Jurors are empaneled in Rusk
County, Texas which is the same county in which the District Court sits; and
appears to be the act of that grand jury in Rusk County. The indictment identified
the Defendant by his proper name, Laroyce Demond Allen and alleges that the
offense occurred in Rusk County, Texas. The indictment alleges the offense took
place on or about the 15th day of June, 2015, a date anterior to the indictment and
not so remote that the prosecution of the offense would be barred by limitation.
The indictment states that Laroyce Demond Allen did intentionally and
7
knowingly cause the penetration of the mouth of Jane Smith (pseudonym), a child
younger than 17 years of age, by his sexual organ. Clearly the language is worded
in plain and intelligible words. The indictment concludes with “against the peace
and dignity of the State” and is signed by the Foreman of the Grand Jury. (1 C.R.
5)
Although the Appellant was already in custody on June 15, 2015, “[T]he ‘on
or about’ language of an indictment allows the state to prove a date other than the
one alleged as long as the date proven is anterior to the presentment of the
indictment and within the statutory limitation period. Wright v. State, 28 S.W.3d
526, 532 (Tex. Crim. App. 2000). There is no limitation for a sexual assault under
Section 22.011(a)(2) of the Tex. Penal Code Ann. See Tex. Code Crim. Proc.
Ann. art. 12.01.
Thus, there exists no deficiency in the form or content of the indictment in
this matter.
2. There Were No Improper Adverse Pretrial Rulings Affecting The
Course Of The Trial.
During voir dire, Appellant’s counsel attempted to elicit juror expectations as to
what type of evidence they may anticipate hearing in a trial. The Prosecutor objected
and a bench conference was had:
MR. JIMERSON: I object. These are commitment questions. They're a little
bit unorthodox, because he's soliciting from the juror what they're going to
8
demand, but he's committing them to the facts. We're going to have to have
DNA to get a conviction and these other things. It's just an outstandingly
clever commitment question is the State's position. We object to it.
MR. SANDERS: I don't think -- I'm just asking what they might expect to
hear.
THE COURT: I'll sustain the objection on that. (2 R.R. 74-75)
While an attorney cannot attempt to bind or commit a prospective juror to a
verdict based on a hypothetical set of facts, this abstract matter though easily stated,
has been problematic in its application. Case law has not always been clear and
consistent but a few common principles are apparent. Commitment questions are
those that commit a prospective juror to resolve, or to refrain from resolving, an issue
a certain way after learning a particular fact. Often, such questions ask for a "yes" or
"no" answer, in which one or both of the possible answers commits the jury to
resolving an issue a certain way.
Therefore, in the context of voir dire, a query regarding the expectations of a
juror informs both the prosecution or defense of any bias. This is the very essence
of voir dire – to speak the truth. Expectations brought into a trial by a juror are hardly
those of commitment. Rather, voir dire assists both parties. For instance, if the juror
expectation properly notified a prosecutor that these particular jurors expected to
receive information regarding the presence or absence of DNA, he is well-informed
such that he may challenge the juror for cause in order to determine whether that
9
bias is improper. In fact, the statement, “We're going to have to have DNA to get a
conviction and these other things,” expresses only the need to deal with the
expectations of the juror during trial. This is certainly no different than all juror’s
wish to hear, see, and examine any other evidence prior to determine what weight it
should be given.
The overruling of such an objection may be ill-advised and perhaps improper,
but there appears to have been little harm in the ruling. In reality, there was also little
harm in the question. This is particularly true given the testimony offered by Susan
Camazine, the State’s sexual assault nurse witness who testified that she did not take
swabs for DNA because the DNA would likely have been degraded after an elapse
of 96 hours and that the information related to her was that the last sexual activity
occurred prior to that 96-hour window. (3 R.R. 95-96)
Commitment matters continued to be a source of objection during voir dire.
During Appellant’s voir dire the following exchange occurred:
Q. Okay. Okay. All right. And not just for those of y'all who just raised your
cards, but just generally, if there's a situation where somebody gets in
trouble, is it common to try to deflect attention to something else? Mr.
Maines, somebody gets where they're a teenager or whoever --
MR. JIMERSON: Objection, Your Honor. May we approach?
THE COURT: Yes.
MR. JIMERSON: I object to the commitment question. He's just outright
trying the case on voir dire. That's just clearly a statement of the defense that
10
she got in trouble for something else, so she came up with this story. It's just
trying the case in voir dire. And if we're going to do that, the State should
have the same opportunity. It's a commitment question. That's my objection.
MR. SANDERS: I don't believe it's a commitment question at all, because it
simply asked about their experience, how people respond to getting in
trouble. I don't think it commits a jury.
THE COURT: It is too close. I'll sustain the objection.
Here, the court’s sustaining of the objection was appropriate. Appellant’s counsel
could have elicited the very same information by rephrasing the question.
A review of the two objections during voir dire indicates there were no instances
in which the Appellant was harmed or irrevocably prejudiced by those rulings.
3. There Were No Adverse Improper Adverse Rulings During The Trial On
Objections Or Motions Had Been Improperly Made Such That They
Created An Adverse Effect On The Result Of The Trial.
During trial testimony, three objections were made by the Appellant’s regarding
the introduction of physical evidence. Each of these objections were made on the
ground of authentication and improper predicate. All of the evidentiary objections
were properly overruled. The following exchange is an exemplar of the objections:
Q. (BY MR. WAVRUSA) Can you open that envelope for us and
examine its contents, please?
A. That's all that was in it.
Q. Can you take a look at that? Do you recognize that?
A. I do, sir.
Q. What do you recognize it to be?
11
A. This is the letter that was provided to Deputy Wright during the
initial investigation from the grandfather of the reported victim party.
Q. And is it in the same or substantially the same condition as it was in
when it was received by the Sheriff's Office?
A. Yes, sir, with the exception of the stuff the laboratory did to it.
MR. WAVRUSA: Your Honor, we would offer this letter as State's
Exhibit No. 5 -- 4, excuse me.
MR. SANDERS: I would object on the grounds of hearsay to the content,
as well as I don't believe it's been properly authenticated or a proper
predicate has been laid to establish that that was the letter provided to
the Sheriff's Office.
THE COURT: I'll overrule the objection. 4 will be received. (3 R.R. 43)
Objections to testimony were also properly ruled upon. During the course of the
trial, four objections were made for hearsay, two for eliciting speculative answers
from the witness, and three for the positing of leading questions.
Three of the hearsay objections provided little true need for consideration by the
court. However, there was some concern regarding the following exchange which
took place during the testimony of Letrevia Jackson, a caseworker for Child
Protective Services:
Q. Okay. Was there any reason why she wasn't allowed to stay with her
maternal grandfather, Herbert Adams?
A. Child Protective Services was concerned that -- MR. JIMERSON:
Objection, Your Honor. May we approach?
THE COURT: Yes.
(Conference at the Bench:)
MR. JIMERSON: I'm going to object that this is all hearsay, and we have
dug into the basis of this, and there's no truth to it. And I don't know
whether I would be
12
able to get it disproven, because I don't know if my witness is still here.
I need Petrice Adams. But it's just blatant hearsay.
MR. SANDERS: As far as the allegation, I think there were allegations
about the grandfather, Herbert Adams, sexually assaulting the mother,
Petrice. There are allegations that Herbert Adams, the grandfather, had
sexually assaulted Petrice when she was younger. And that's why my
understanding, that's why XXXXXXXXX wasn't allowed to stay with
him and actually was only allowed supervised visits with him. And I
think that the reason we're getting into that is relevant is because it just
shows another reason why – that it wasn't Laroyce that did this. If
anything happened, there's another possible suspect right there based on
that history and based on how the events took place, as far as him getting
the letters, these letters, and taking them to law enforcement and kind of
initiating this investigation.
MR. JIMERSON: I understand his argument for relevance, but it's just
blatant hearsay, which we've been going into hearsay and hearsay and
hearsay. I've been letting it go, but this is serious. I've got both the parties
supposed to be a part of that, Mr. Adams and Petrice, and I represent to
the Court -- and I believe Mr. Sanders appreciates -- both of them are
going to deny any such allegation.
THE COURT: I'll sustain the objection as to the specific allegations. I'll
let you say that or you can elicit testimony that she was not allowed or
didn't live there or had restricted visitation, but that will be the extent of
it. (4 R.R. 7-9)
An allegation that testimony may be hearsay because the District
Attorney has investigated a matter is not what makes it hearsay. Rather, a
party who asserts the matter for the truth of the allegation is subject to the
hearsay rule, its exceptions, and its limitations. An affirmation of investigation
by the District Attorney which states the matter lacks evidence should be
tested if necessary. That is the very purpose of a trial - the test of allegations.
13
The trial court here prevented the testimony on the specific allegations but
allowed at least some leeway as to testimony whereby the limitations on
visitation might be elicited. It is a potential harm but Appellant’s counsel
failed to even elicit those facts in subsequent testimony. Therefore, the
abandonment of the trial strategy largely waives any complaint regarding the
matter.
4. There Were No Adverse Improper Rulings On Post-Trial Motions.
There exists on the record no adverse post-trial rulings by the trial court.
5. Jury Selection Was Properly Conducted In Order That A Fair And
Impartial Jury Was Obtained.
A full and complete review of the jury selection recorded in 2 R.R. was
made with no indication that the jury selection would have been improper or
that a fair and impartial jury might not have been accomplished.
6. The Jury Instructions Were Properly Formulated.
Tex. Code Crim. Proc. Ann. art. 36.14 provides that prior to the charge being
read to the jury, the defendant or his counsel shall have reasonable time to
examine the same and he shall present his objections thereto in writing, distinctly
specifying each ground of objection. Here, the trial court held a hearing outside
the presence of the jury after closing and before final arguments of counsel. Each
14
party was offered the opportunity to object to the Jury Charge and both parties
offered no objection. (4 R.R. 111)
Art. 36.14 provides that in each felony case tried in a court of record the judge
shall, before argument begins, deliver to the jury a written charge distinctly
setting forth the law applicable to the case; not expressing any opinion as to the
weight of the evidence, not summing up testimony, discussing the facts or using
any argument in his charge calculated to arouse sympathy or excite the passions
of the jury. The charge was properly read to the jury. (4 R.R. 112)
In order for the charge to be constitutionally effective, the jury charge must
be properly formulated. In a properly formulated charge, there must be a
statement of general principles of jurisprudence regarding the foundational
matters of a fair and impartial trial, a discussion of the accusation, relevant
statutes burden of proof and the application of the law to facts. Jurors must also
be well-informed of the rules that control their deliberation.
The trial court’s charge fairly met each of these matters. The trial court’s
general principles discussed the indictment, the presumption of innocence, the
burden of proof, the jury’s role as factfinder, matters of evidence, the use of
exhibits, trial testimony and the verdict. The Accusation section of the charged
discussed the actual accusation against the defendant, the standards applicable in
15
Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000) regarding the dating
of the offense, and the presentation of the indictment. The relevant statutes were
presented accurately and in such plain and concise wording such that they would
be unlikely to be misinterpreted by a juror. The burden of proof and definitions
were adequately and accurately stated. The application of law to the facts was
well-addressed with the elements that must be proved being concisely stated and
the standard of agreement governing any final decision by the jury. The lesser
included offense was well-defined for the jury in plain and concise language.
Lastly, the rules controlling those deliberations were more than adequately
enumerated such that any juror might be expected to understand them. (1 C.R.
77-84)
Due to the aforementioned conformity with standards generally accepted by
Texas courts, the jury instructions were properly formulated.
7. The Evidence Was Sufficiently Adduced At Trial To The Offense Upon
Which The Conviction Was Based.
The physical evidence and testimony at trial were sufficient to support a
conviction of the defendant. The State offered multiple examples of documents
purported to have been written by the defendant. (5 R.R. Exhibits 1-7) The source
of the original location of these documents was provided by Jonathan Rhodes, an
16
investigator employed by the Rusk County Sheriff’s Department. (3 R.R. 34-35)
His testimony was uncontroverted.
Testimony was given by Sarah Pryor, an employee of the Questioned
Documents Section of the Texas Department of Public Safety Crime Laboratory.
Ms. Pryor testified that the questioned documents were tested through the use of
known exemplars such that a determination as to the author of writings could be
determined within a strong probability and that, in her expert opinion, the
defendant was the author. (3 R. R. 115) She further testified that the laboratory
utilized oblique fiberoptic side lighting, a technique utilized the determine the
source of latent writing impressions, if in existence. Her testimony was also
uncontroverted.
The State produced Herbert Adams whose testimony added the context to the
chronological actions of the various parties prior to their contact with law
enforcement authorities. The events testified by Mr. Adams were generally
uncontroverted.
The State further produced Halasia Petrice Adams, the defendant’s wife, who
gained the original outcry from XXXX, her daughter. (3 R.R. 166) While there
is some confusion as to the exact timeline of actions due to the somewhat
17
conflicting testimony given by Herbert Adams and Halasia Petrice Adams, there
can be little doubt their testimony was effective.
The State also produced the victim, XXXX, for testimony. The testimony of
XXXX was very much at odds with the testimony of Herbert Adams and Halasia
Petrice Adams regarding a prior event concerning her “sneaking out” of the house
and taking her grandmother’s car to do so. However, her testimony as to the
actions of Laroyce Allen were unequivocal.
The jury is allowed to weight the testimony and evidence produced at the time
of trial. It is their province to determine the credibility of witnesses and it would
appear the evidence provided was of reasonable quality upon which a conviction
could be made.
8. There Was No Failure By Trial Counsel To Object To Fundamental
Error.
A complete and exhaustive review of the Reporter’s Record and the Clerk’s
Record has been performed and has revealed no failure by trial counsel to object
to fundamental error.
9. There Were No Improper Adverse Rulings During The Punishment
Phase On Objections Or Motions.
The record is devoid of any adverse ruling to the defendant during the
punishment phase.
18
10.The Sentence Was In The Applicable Range Of Punishment.
Tex. Penal Code Ann. § 22.011 provides an offense under this section is a
felony of the second degree. Tex. Penal Code Ann. § 12.32(a) provides an
individual adjudged guilty of a felony of the second degree shall be punished by
imprisonment in the Texas Department of Criminal Justice for any term not more
than 20 years or less than 2 years. Tex. Penal Code Ann. § 12.32(b) further
provides that in addition to imprisonment, an individual adjudged guilty of a
felony of the second degree may be punished by a fine not to exceed $10,000.
The Verdict Form signed by the foreperson of the jury assessed the
punishment of 20 years and no fine. (1 C.R. 94) The assessment of this sentence
is clearly within statutory guidelines.
11.The Written Judgment Accurately Reflects The Sentence Imposed And
Credit Was Properly Applied.
The written judgment prepared and filed by the trial court correctly reflect the
judgment and credit for time served.(1 C.R. 95)
12.Based Upon The Record, Appellant Did Not Receive Ineffective
Assistance Of Trial Counsel.
In Holland v. State, 761 S.W.2d 307 (Tex. Crim. App. 1988), the Court of
Criminal Appeals stated the standard of review regarding the legal issue of
ineffectiveness of counsel. The Court of Criminal Appeals stated on page 314 of
the opinion the following:
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In Hernandez v, State, 726 S.W.2d 53 (Tex. Crim. App. 1986), this
Court adopted as the litmus test to determine the validity of an effective
assistance of counsel claim the standard handed down by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strickland, supra, the Supreme
Court held that in order to show ineffective assistance, a convicted
defendant must (1) show that his trial counsel’s performance was
deficient, in that counsel made such serious errors he was not
functioning effectively as counsel, and (2) show that the deficient
performance prejudiced the defense to such a degree that appellant was
deprived of a fair trial. In this context, “prejudice” is demonstrated
when the convicted defendant shows a reasonable probability that, but
for the counsel’s unprofessional errors, the result of the proceeding
would have been different. Id. 104 S.Ct. at 2068.
An exhaustive search has been made of the trial record through examination
of the transcripts provided by the Court Reporter and the record provided by the
District Clerk. As a result of this examination, it is clear that in the case at bar, trial
counsel’s performance was free of serious errors.
CONCLUSION
Reviewing the evidence in the light most favorable to the trial court’s rulings,
no abuse of the trial court’s discretion occurred.
PRAYER
WHEREFORE, PREMISES CONSIDERED, MOVANT, CLAY DEAN
THOMAS, counsel for Appellant, respectfully requests this Honorable Texarkana
Court of Appeals to:
1. Grant Clay Dean Thomas’ Motion To Withdraw As Appellant Counsel.
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2. Allow Appellant to review the record and file a brief or other response on
his behalf, should he so desire, and
3. Grant any and all other relief to which Appellant may be entitled.
Respectfully submitted,
CLAY THOMAS, P. C.
BY: /s/ Clay Dean Thomas
Clay Dean Thomas
Attorney for Appellant
3548 NE Stallings Drive
Nacogdoches, Texas 75965
Phone: (936) – 715 – 7144
Facsimile: (877) – 899 – 0382
clay.thomas@claythomaspc.com
State Bar Number: 24088520
CERTIFICATE OF COMPLIANCE
This is to certify that the sections covered by Texas Rule of Appellate
Procedure 9.4(i)(1) contain 5,496 words in 14-point type, excepting footnotes which
are in 12-point type. The total word count is 5,496.
/s/Clay Dean Thomas
Clay Dean Thomas
CERTIFICATE OF SERVICE
I, Clay Dean Thomas, attorney for Appellant, do hereby certify that a true and
correct copy of the above and foregoing Brief of Appellant has been delivered to the
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following parties through depositing by First Class Service through the United State
Postal Service on this, the 6th day of October, 2016.
MR. MICHAEL ELWOOD JIMERSON
District Attorney, Rusk County, Texas
115 North Main Street
Henderson, Texas 75652
MR. LAROYCE DEMOND ALLEN
TDCJ No. 02078253
Joe F. Gurney Unit
1385 FM 3328
Palestine, Texas 75803
/s/ Clay Dean Thomas
Clay Dean Thomas
CERTIFICATE OF APPELLATE COUNSEL
I hereby certify that the foregoing document was electronically filed to
the Clerk, Court of Appeals, Sixth District of Texas, 100 North State Line
Avenue, Suite 20, Texarkana, Texas 75501, on this the 6th day of October,
2016.
/s/ Clay Dean Thomas
Clay Dean Thomas
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