Samuel Moses Williams v. State ( 2015 )

ACCEPTED
06-15-00086-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
06-15-00086-CR through 06-15-00089-CR 7/14/2015 2:59:58 PM
DEBBIE AUTREY
CLERK
NO. 06-15-00086-CR
IN THE Sixth COURT OF APPEALS FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
OF TEXAS 7/14/2015 2:59:58 PM
At Texarkana DEBBIE AUTREY
Clerk
Samuel Moses Williams,
APPELLANT
V.
The State of Texas,
APPELLEE
APPELLANT'S BRIEF
On appeal from Cause Number 1421392—1421395
In the 8thDistrict Court
Hopkins County, Texas
Honorable Eddie Norhthcutt, Presiding
Charles E. Perry,
1101 Main Street, Commerce,
Texas 75428 Texas Bar No.
15799700
903-886-0774,fax 9030-886-2043
ATTORNEY FOR APPELLANT
NO ORAL ARGUMENT REQUESTED
IDENTITIES OF PARTIES AND COUNSEL
Pursuant to the provisions of Rule 38.1(a), Texas Rules of Appellate
Procedure, a complete list of the names of all parties to this action and counsel
are as follows:
Parties: Samuel Moses Williams, Appellant
State of Texas, Appellee
Attorneys for Charles E. Perry
the Appellant: Attorney at Law,
1101 Main Street,
Commerce, Texas 75428
(On appeal only)
Roland Ferguson
Attorney at Law
1804 Woodbridge Drive.
Sulphur Springs, Texas 75482
Attorney’s Address
(Trial Attorney)
Attorneys for the State: Nicholas Clay Harrison
Jennifer Stine Morse
Assistant District Attorneys,
Hopkins County, T e x a s
P.O. Box 882
Sulphur Springs, Texas 75482
SAMUEL MOSES ii APPELLANT’S BRIEF
WILLIAMS
No. 06-15-00082-CR
TABLE OF CONTENTS
PAGE
IDENTITIES OF PARTIES AND COUNSEL ......................................................... ii
TABLE OF CONTENTS………………………………………………………..…iii
INDEX OF AUTHORITIES ........................................................................................ iv
STATEMENT OF THE CASE .................................................................................. 1
SUMMARY OF FACTS………………………………………………………….2-3
PROFESSIONAL EVALUATION OF RECORD…………………………………………….3-10
PRAYER……………………………………………………………………………11
CERTIFICATE
SERVICE……………………………………………………….………………………………...12
SAMUEL MOSES iii APPELLANT’S BRIEF
WILLIAMS
No. 06-15-00082-CR
INDEX OF AUTHORITIES
CASES PAGE
Anders v. California, 386 U.S. 738 (1967) ...................................................... 4
Brooks v. State, 323 S.W.3d 893……………………………………......................5
Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969) .............................. 4
Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App. 1981) ................................ 3
Hooper v. State, 214 S.W. 3d 9,13(Tex.Crim.App.2007)……………………….….5
Jackson v. Virginia, 443 U.S. 307 (1979) ....................................................... 5
Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998)………………………7
Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991)…………………….10
Turro v.State, 867 S.W.2d 43, 47(Tex.Crim.App. 1993)………………………….5
CODES, RULES AND CONSTITUTIONAL PROVISIONS
Tex.R.App.Pro. 38 ............................................................................................. 1
Tex.R.App.Pro. Rule 38.1(a) .......................................................................... ii
Tex.R.Evid., Rule 801(d)……………………………………………………….7-8
SAMUEL MOSES
WILLIAMS iv APPELLANT’S BRIEF
No. 06-15-00082-CR
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, Samuel Moses Williams, Appellant in this cause, by and through
his attorney of record, Charles E. Perry and, pursuant to the provisions of TEX. R.
APP. PRO. 38, et seq., files this brief on appeal.
STATEMENT OF THE CASE
Appellant was indicted on four counts of sexual indecency with a child. (CR,
pp. 17 and 31) on #1424392, (CR 29-30) on #1424393, (CR 5) on # 1434394, (CR
5 on # 1424395. Appellant entered a plea of not guilty on all indictments, but on
April 7, 2015, a jury found him guilty on all indictments. (CR, p.107) on # 1424392,
(CR.93 and 94) on # 1424393, (CR 93 and 94) on # 1424394 and (CR 93 and 94)
on # 1424395. After a punishment trial, the court assessed a 20-year sentence on
each verdict with the first two judgments of conviction to run concurrently and the
latter two judgments of conviction to run consecutively. (CR, p.107).Appellant
gave timely written notice of appeal on May 19, 2015.(CR,p.117) on
#1424392, (CR 99) on # 1424393, (CR 99) on # 1424394 and (CR 99) on #
1424395. This brief is due to be filed on or before July 28, 2015.
SAMUEL MOSES
WILLIAMS 1 APPELLANT’S BRIEF
No. 06-15-00082-CR
SUMMARY OF THE FACTS
Appellant lived in a trailer park and was neighbors to the two
complaintant’s 12 year old twins K-a and K-e. During the month of October
2014, only the Appellant and the K-a and K-e were alone with the Appellant
in the back room of his trailer where K-a and K-e testified that the Appellant
committed the acts complained of and made the basis of the four indictments
for indecency with a child in this case. The minor girls testified that the
Appellant’s inappropriate touching of them on their buttocks, breasts and
private parts started and was done initially under the guise of the fact that they
were wrestling. The minor child K-a wrote a (out-cry) letter detailing the
complained of acts and gave the letter to a woman who was a neighbor
(witness) and looked after the minor girls from time to time who later went to
the authorities. After being taken into custody, the Appellant made a statement
that was video recorded and which statement implicated himself for the acts of
indecency with a child for which he stood trial under the four indictments in
the instant case. After a jury found the Appellant guilty on all four
indictments, there was a punishment trial before the court and without the
jury. At punishment the state presented evidence of a prior sexual crime
SAMUEL MOSES
WILLIAMS 2 APPELLANT’S BRIEF
No. 06-15-00082-CR
committed by the Appellant as a juvenile for which he was ultimately sent to
the Texas Youth Commission and for failing to register as a sex offender
committed as an adult for which after being placed on community supervision
was later incarcerated. The Appellant did not testify during the punishment
phase but several people who knew the Appellant did and said that he was not
a violent person and did not need a long period of incarceration.
SAMUEL MOSES
WILLIAMS 3 APPELLANT’S BRIEF
No. 06-15-00082-CR
PROFESSIONAL EVALUATION OF THE RECORD
Counsel has reviewed the appellate record in this cause and reluctantly
concludes that as a matter of professional judgment, the record contains no
reversible error and no jurisdictional defects are present. Where counsel
concludes that there are no arguable grounds for reversal, he is required to
present a professional evaluation of the record demonstrating why there are
no arguable grounds to be advanced. Anders v. California, 386 U.S. 738
(1967); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).
Sufficiency of the Evidence
The two [Complainant’s], K-a and K-e’s, account of the sexual
encounters with Appellant (Vol. 6 p. 52 line 6 to p. 117 line 11) was fairly
consistent with K-a’s writing or outcry letter she gave to her neighbor Sadie
Burnett (State exhibit 7 admitted in Vol. 6 p. 33). Also, it can be argued that
the Appellant implicated himself squarely within the purview of the four
indictments in the instant case by the video statement that he gave to the law
enforcement authorities and was admitted into evidence in ( State exhitbit 5
SAMUEL MOSES
WILLIAMS 4 APPELLANT’S BRIEF
No. 06-15-00082-CR
Vol.5p.271).While the defense sought to impeach [Complainant’s] credibility,
the evidence is reviewed in the light most favorable to the verdict. The
evidence in this case is therefore legally sufficient to support the allegations.
Jackson v.Virginia,443 U.S. 307(1979); Griffin v .State, 614 S.W.2d 155
(Tex.Crim.App.1981). Brooks v. State,323 S.W.3d 893,895(Tex. Crim. App.
2010). Deference is given to “the responsibility of the trier of fact to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Hooper v State, 214 S.W.3d 9,
13(Tex.Crim.App.2007). When faced with conflicting evidence, there is a
presumption that the tryer of fact resolved any such conflict in favor of the
prosecution, and there is deference to that resolution. Turro v.State, 867 S.W.
2d 43, 47 (Tex. Crim. App. 1993).
SAMUEL MOSES
WILLIAMS 5 APPELLANT’S BRIEF
No. 06-15-00082-CR
Voir Dire
The defense and state agreed to strike a venireperson for cause (Vol. 5,
p.165 and 166). The defense moved to strike a venireperson for cause and after
a valiant effort to rehabilitate the venireperson the court granted the defense
motion to strike to venireperson for cause. (Vol. 5, pp. 182-186). The defense
made a motion to strike a venireperson (Vol. 5, p. 195: lines 7-8) and the court
sua sponte struck the venireperson without objection from the state
(Vol.5,p195).The defense challenges for cause to two venirepersons was
therefore granted. There were no other issues raised during the voir dire
proceedings and no fundamental error was made.
Trial Objections
There was an objection to a statement by witness Dennis Findley who
was an investigator with the Hopkins County Sheriff’s office. The objection
was to relevance with respect to a question as to whether it was standard
procedure to go out and get a SANE nurse when the case was only a touching
case and after saying he was not a SANE examiner and it was not standard
procedure, he was asked to give a little bit of a picture of what that entails and
SAMUEL MOSES
WILLIAMS 6 APPELLANT’S BRIEF
No. 06-15-00082-CR
the defense objected on relevance. The state said that it was relevant since he
chose not to ask for such an exam and the objection by the defense was
overruled. (Vol. 5. P. 245).
There was an objection to a statement by witness Sadie Burnett on the
grounds of hearsay which was sustained.(Tex.R.Evid. 801(d)). The court
granted the defense motion for an instruction for the jury to disregard the
statement and answer which was granted and such instruction was given. There
was actually no answer articulated, so there was actually no hearsay answer and
no need to ask for a mistrial. (Vol. 6, pp. 3-15; p. 31 line 1). The defense
therefore was able to get all the relief that was necessary. This is especially true
since the question was not answered.” [O}verruling an objection to evidence
will not result in reversal when other such evidence was received without
objection, either before or after the complained of ruling.” Leday v. State, 983
S.W.2d 713, 718(Tex. Crim. App. 1998).
Punishment Trial and Notice of Extraneous Acts
In the sentencing phase of the trial, there was an objection to juvenile
probation violations but objection was overruled on the basis that the violations
were the basis for the ultimate probation revocation.(Vol. 7, p. 29 lines 4 -25
and p.30 line 1). There was an objection to an investigator’s hearsay statement
SAMUEL MOSES
WILLIAMS 7 APPELLANT’S BRIEF
No. 06-15-00082-CR
that was sustained (Tex. R. Evid. 801(d). (Vol. 7, p. 53 lines 19-25 and p. 54
lines 1-10).Later there was an objection to a witness restating the question and
the objection was overruled(Vol 7, p.61, lines 14-20). The defense objected to a
question as to whether the witness would leave their daughters with the
Appellant and the objection was overruled(Vol.7, p.65 lines 21-25 and p.66 line
1). There was an objection the state’s question as whether there anything else
about the girls’ behavior and the objection was sustained. (Vol.7, p. 82, lines
18-22).
During the sentencing phase of the trial before the court the defense
made several objections. The defense objected to a question with regard to the
appellant’s violations while he was on juvenile probation, but was overruled
by the court they were the basis of his ultimate revocation.(Vol. 7, p 29 lines
4-25 and p.30 line 1). The defense’s next objection was sustained to hearsay
offered by an investigator.[Tex. R. Evid. 801(d)] (Vol.7,p 53 lines 19-25 and
p. 54 lines 1-10). The defense made an objection to a witness restating the
question and was overruled (Vol.7,p.61 lines 14-20). The state asked the
witness, if you had daughters would you leave them with Mr. Williams
(appellant) and the defense objected but was overruled.(Vol.7,p.65 lines 21-
SAMUEL MOSES
WILLIAMS 8 APPELLANT’S BRIEF
No. 06-15-00082-CR
15 and p. 66 line 1). The defense objection was sustained when the state
inquired of the witness if there was anything else about the behavior of the
complainants (girls). (Vol.7,p.83 lines 18-22). It would seem that with respect
to the questions asked by the state where the defense objection was sustained,
there was nothing so prejudicial to warrant a reversal of the case and this
would also seem to be the case with respect to the questions by the state where
to objection was overruled. This is true since the sentencing was before the
court and not the jury and the evidence in the guilt/ innocence stage was
compelling.
Notice of State Intent to Introduce Prior Convictions During Sentencing was
given (CR 39) as were Notice of other, crimes, wrongs and Acts (CR 99).
Jury Instructions
The guilt/innocence jury instructions track the language of the
indictment, and trial counsel stated that he had no objections to the jury
charge. (Vol.6,p.175 line 8). Trial counsel did object to an omission in the jury
punishment instructions, but the court amended them in accordance with the
SAMUEL MOSES
WILLIAMS 9 APPELLANT’S BRIEF
No. 06-15-00082-CR
objection. (Vol.6, p.7). Neither charge is defective.
Conclusion
Because counsel is unable to raise any arguable issues for appeal, he is
required to move for leave to withdraw. See Stafford v. State, 813 S.W.2d 503
(Tex.Crim.App.1991).Accompanying this brief is counsel’s motion to
withdraw on these grounds.
SAMUEL MOSES
WILLIAMS 10 APPELLANT’S BRIEF
No. 06-15-00082-CR
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel respectfully prays
that this Court permit him to withdraw after this Court’s own examination of
the record in this cause and to afford Appellant his right to file any pro se
brief he may wish to file.
Respectfully submitted,
/s/ Charles E. Perry
Charles E. Perry
1101 Main Street
903-886-0774.
fax: 903-886-2043
email:elyww@aol.com
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE WITH T. R. C. P. 9.4(i)(3)
Relying on Microsoft word’s count feature used to create the Appellant’s Brief, I
certify that the number of words contained in the brief is 2,149 and the type used is
14 font.
/s/ Charles E. Perry
Charles E. Perry
SAMUEL MOSES
WILLIAMS 11 APPELLANT’S BRIEF
No. 06-15-00082-CR
CERTIFICATE OF SERVICE
By affixing my signature above, I hereby certify that a true and correct
copy of the foregoing APPELLANT’S BRIEF, was delivered via electronic
delivery to the Hopkins County District Attorney’s Office, P.O. Box 882, Sulphur
Springs, Texas 75482, on this 14 th day of July, 2015.
/s/ Charles E. Perry
Charles E. Perry
SAMUEL MOSES
WILLIAMS 12 APPELLANT’S BRIEF
No. 06-15-00082-CR