                                                                                   PD-1557-15
                          PD-1557-15                             COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                                 Transmitted 12/1/2015 5:56:10 AM
                                                                   Accepted 12/1/2015 3:55:12 PM
                             No. ____________________                              ABEL ACOSTA
                                                                                           CLERK

            IN THE COURT OF CRIMINAL APPEALS OF TEXAS




                          KEITH LADALE WILSON,

                                                   Petitioner
                                        v.

                          THE STATE OF TEXAS,

                                                   Respondent



                             No. 01-13-00917-CR
                              Court of Appeals
                                 First District


                PETITION FOR DISCRETIONARY REVIEW


                                                   James F. Keegan
                                                   Texas Bar No. 11155400
                                                   4421 Jim West Street
                                                   Bellaire, Texas 77401
          December 1, 2015                         713-668-4797
                                                   713-668-4798-facsimile
                                                   whynyet@sbcglobal.net
                                                   Attorney for Petitioner


Oral Argument Requested
                IDENTITY OF JUDGE, PARTIES AND COUNSEL


David V. Wilson, Senior Judge
Polk County, Texas
Trial Judge


Keith Ladale Wilson
Petitioner

Represented at trial and on appeal by:

James F. Keegan
Texas Bar No. 11155400
4421 Jim West Street
Bellaire, Texas 77401
713-668-4797
713-668-4798-facsimile
whynyet@sbcglobal.net


The State of Texas
Respondent

Represented at trial by:

Philip Anthony Grant
Texas Bar No. 00796662
District Attorney pro tem
Tiana Jean Sanford
Texas Bar No. 24062269
Assistant District Attorney pro tem
207 W. Phillips
2nd Floor
Conroe, Texas 77301
936-539-7800
936-760-6940-facsimile
                                         i
Represented on appeal by:

Philip Anthony Grant
Texas Bar No. 00796662
District Attorney pro tem
Jason Larmon
Texas Bar No. 24072468
Assistant District Attorney pro tem
207 W. Phillips
2nd Floor
Conroe, Texas 77301
936-539-7800
936-760-6940-facsimile
DAInfo@mctx.org




                                      ii
                                 TABLE OF CONTENTS


IDENTITY OF JUDGE, PARTIES AND COUNSEL ………………….……………………….. i

TABLE OF CONTENTS ………………………………………..………………………...…………. iii

INDEX OF AUTHORITIES ………………………………………..……………...……………….. iv

STATEMENT REGARDING ORAL ARGUMENT …………………………....…..………… vi

STATEMENT OF THE CASE …………………………………..…………….....……………….. vii

STATEMENT OF PROCEDURAL HISTORY …………………………...….….………….. viii

GROUND FOR REVIEW …………………………..………….…...……..……….………………… 6

ARGUMENT ……………………………………...............................................................…………. 6

PRAYER FOR RELIEF ……………………………………..………………………………………. 13

CERTIFICATE OF COMPLIANCE ………………………………………………..…….…….... 14

CERTIFICATE OF SERVICE ………………………………………………………..………….... 14

APPENDIX A – OPINION OF THE COURT OF APPEALS

APPENDIX B – CONCURRING OPINION OF JUSTICE HUDDLE




                                             iii
                            INDEX OF AUTHORITIES

Cases                                                                          Page


Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000) ………...…...………. 7

Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007) ………………...………. 3

Curtis v. State, 89 S.W.3d 163
      (Tex.App.-Fort Worth 2002, pet. ref’d) ...…………………………….…….....… 4,7

Davis v. State, 979 S.W.2d 863
      (Tex.App.-Beaumont 1998, no pet.) …………..……………………..…...…………. 3

Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App. 2001) ………………...………..……. 9

Ovalle v. State, 13 S.W.3d 774, 787 (Tex.Crim.App. 2000) ………...................……. 9




                                         iv
Texas Rules of Appellate Procedure

Rule 38.1 ………………………………………..……….……...……………………………………….. 8

Rule 38.9 ………………………………………..……….……...…………………………………….. 8,9


Texas Rules of Evidence

Rule 402 ……………………...………………...……………..………………………..…………….. 2,4

Rule 403 ……………………...………………...……………..………………………..…………….. 2,4

Rule 404(b) ……………………...………………...………..………………………...…………….. 2,3




                                     v
                 STATEMENT REGARDING ORAL ARGUMENT


      Petitioner requests oral argument to more effectively explain the

applicability of Rule 38 of the Texas Rules of Appellate Procedure to the his

briefing of Issue No. 2 before the First Court of Appeals.




                                        vi
                          STATEMENT OF THE CASE


      Wilson was charged in No. 22281 with second degree felony sexual

assault, the indictment (CR-6) alleging that, on or about 29 May 2010, in Polk

County, Texas, he intentionally or knowingly caused the penetration of the

sexual organ of Joyce Doe with his sexual organ, without her effective consent.

      This appeal arises from a retrial beginning on 19 August 2013, after an

earlier hung jury (see CR-86). Voir dire was conducted (see RR2), Wilson

plead not guilty (RR3-12), the State presented twelve witnesses, Wilson five,

including himself, the State presented two rebuttal witnesses, and Wilson

testified again. The jury found Wilson guilty of sexual assault as charged in the

indictment. CR-67 and RR5-119.

      Wilson elected the jury to assess his punishment (CR-24), and the

punishment phase of trial was conducted on 21 August 2013 and 22 August

2013. See RR6 & RR7. The jury assessed Wilson’s punishment as confinement

in the Texas Department of Criminal Justice – Institutional Division for a term

of 14 years. CR-71 & RR7-126.




                                          vii
                 STATEMENT OF PROCEDURAL HISTORY

      1. The Court of Appeals for the First District issued its published
opinion on 25 August 2015. Justice Huddle issued a concurring opinion.

      2. Petitioner timely filed a motion for rehearing and a motion for en
banc reconsideration on 9 September 2015.

       3. The Court of Appeals denied both the motion for rehearing and the
motion for en banc reconsideration on 3 November 2015. Justice Huddle
would have granted rehearing, but the Court unanimously denied the motion
for en banc reconsideration.




                                   viii
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

      Keith Ladale Wilson petitions the Court to review the decision of the

Court of Appeals for the First District in 01-13-00917-CR, affirming his

conviction for sexual assault in No. 22281 in the 411th District Court of Polk

County, Texas, and his sentence of confinement in the Texas Department of

Criminal Justice – Institutional Division for a term of 14 years.

              THE ISSUE PRESENTED TO THE COURT OF APPEALS

      By his brief, Wilson presented five issues to the Court of Appeals, but

that Court’s disposition of only one, No. 2, is challenged here. Issue No. 2 was

as follows:

      2. The court below erred in allowing the State to present evidence of an
extraneous sexual assault alleged to have been committed after the alleged
sexual assault for which Wilson was on trial. RR5-5-73.

          THE ARGUMENT OF WILSON TO THE COURT OF APPEALS

      The first issue Wilson presented to the Court of Appeals constituted a

challenge to the sufficiency of the evidence to sustain his conviction, and, in

support of his challenge, Wilson presented a detailed, 27-page summary of the

trial evidence, replete with the required page references (Brief of Appellant –

5-32), including a summary of the evidence of the extraneous sexual assault

upon another young woman, Brianna (Brief of Appellant – 30-32).



                                        1
      The second issue Wilson presented to the Court of Appeals was his

challenge to the admission of evidence of an extraneous sexual assault, which

he argued as follows:

      After Wilson rested, the court below allowed the State to present
evidence of an extraneous sexual assault alleged to have been committed on
the night of 25 December 2011. Two witnesses testified on behalf of the State,
Brianna and Jenny Smith (RR5-22-77), and Wilson testified that he had not
even been at the scene that night (RR5-79). Wilson has already summarized
the evidence regarding the extraneous offense, and his summary is
incorporated by reference, rather than unnecessarily repeated.

      Prior to the presentation of the evidence of the extraneous offense, the
court below allowed the State and the defense to argue for, and against,
respectively, its presentation. RR5-5-13. At the conclusion of the argument,
the court ruled that the evidence was admissible. RR5-13. Wilson
understands the State to have presented the evidence to rebut his defensive
theory of consent, and to show his intent to have sex with an unconscious,
non-consenting woman. RR5-11.

       The evidence of the extraneous offense was inadmissible. Rule 404(b)
of the Texas Rules of Evidence provides, in relevant part, as follows:

            Other Crimes, Wrongs or Acts. Evidence of other crimes,
      wrongs or acts is not admissible to prove the character of a
      person in order to show action in conformity therewith. It may,
      however, be admissible for other purposes, such as proof of
      motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident … .

Rule 403 provides that even relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice.
Rule 402 prohibits the admission of evidence which is not relevant.




                                      2
      ”Probative value” refers to the inherent probative force of an item of
evidence – how strongly it serves to make more or less probable the existence
of a fact of consequence to the litigation – coupled with the need of the
proponent for that item of evidence. “Unfair prejudice” refers to a tendency to
suggest decision on an improper basis, commonly, but not necessarily, an
emotional one. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007).

      Immediately evident is that the facts and circumstances of the alleged
assault of Joyce Doe and of the alleged assault of Brianna are in almost no way
similar. The State attempted to prove that Wilson had assaulted Joyce, whom
he had not previously met, at a party, inside a home, while numerous people
were still in attendance, while Joyce was intoxicated, and while he and Joyce
were alone in a game room. The State attempted to prove that Wilson, more
than a year-and-a-half later, had assaulted Brianna, whom he had previously
known, and with whom he had previously engaged in consensual sexual
conduct (see RR5-14-15), outside, in a wooded area, in or around an
automobile, in the presence of one or two of his acquaintances, after Brianna
had agreed to engage in sexual conduct with one of those acquaintances for a
fee. Brianna was not even certain that it was Wilson who had assaulted her.
The evidence of the alleged assault of Brianna can not have rebutted Wilson’s
defensive theory of consent, or shown his intent of having sex with an
unconscious, non-consenting woman. Brianna was not unconscious. The State
presented the evidence only to show character conformity, which is not a
proper purpose for admission under Rule 404(b).

       Davis v. State, 979 S.W.2d 863 (Tex.App.-Beaumont 1998, no pet.), cited
by the State in argument before the court below, is distinguishable. The
defendant was convicted of aggravated kidnapping and aggravated sexual
assault, upon evidence that he had suddenly announced to the victim that he
was going to rape her, and had picked up a knife, struck her in the face with
his fist, dragged her from her mother’s home, carried her to his own house,
and there had violated her vaginally and orally, and attempted to violate her
anally. He repeatedly struck her and pulled her hair, and always had the knife
somewhere on the bed.

      On appeal the court affirmed, rejecting argument that the trial court had
erred in admitting testimony of extraneous offenses with language which is
instructive –


                                       3
            Although we find that Davis opened the door to rebuttal
      evidence concerning the defensive theory of consent, we are still
      required, under a Rule 404(b) objection, to consider whether the
      extraneous offense testimony was relevant to any fact of
      consequence in the case other than character conformity. … We
      conclude it was. Testimony that Davis had on prior occasions and
      under similar facts restrained Wallace and Flenoury for several
      hours, while either attempting and/or completing anal sex
      without their consent, makes it more likely that Davis intended to
      restrain, beat, and have anal, oral, and vaginal sex with DP without
      her consent. Consent to have sex without the consent of DP was
      an elemental fact.

At 867.

      In Curtis v. State, 89 S.W.3d 163 (Tex.App.-Fort Worth 2002, pet. ref’d),
the court reversed a conviction for capital murder because of the erroneous
admission of evidence of an extraneous offense. The dissimilarities between
the two offenses were considerable, and the court held that the trial court’s
ruling that the evidence was admissible fell outside the zone of reasonable
disagreement as to whether the offenses were similar enough to warrant
admission to show identity.

       The court further held that the evidence of the extraneous offense was
irrelevant to the issue of intent, noting that the State may not introduce
extraneous offenses as circumstantial evidence of an element in its case-in-
chief if that element can be readily inferred from other uncontested evidence.
At 175. The court also rejected argument that the evidence was admissible to
show that the deceased victim had not consented to sexual intercourse days
before her murder, rather than having been sexually assaulted
contemporaneously with her murder. Finally, the court held that the evidence
was inadmissible under Rule 403, because it was unfairly prejudicial.

       Finally, the evidence of the alleged assault of Brianna should have been
excluded by Rule 403 and Rule 402, as its probative value was substantially
outweighed by the danger of unfair prejudice, and it was irrelevant. Wilson
was prejudiced by its admission.            He has already summarized the
guilt/innocence phase evidence, and his summary is incorporated by
reference, rather than unnecessarily repeated. However, Wilson would note

                                       4
that the evidence of the extraneous offense was not admitted at his first trial
(see CR-59-61 and RR2-6-9), which ended in a hung jury.

Brief of Appellant – 36-40.

                 THE OPINIONS OF THE COURT OF APPEALS

      With an opinion issued on 25 August 2015, the Court of Appeals

overruled Wilson’s Issue No. 2. The Court, in an opinion authored by Justice

Jennings, found that Wilson “does not argue that he was harmed” by the

admission of the evidence of an extraneous sexual assault. Opinion – 24. The

Court held that, because he had not “adequately briefed his extraneous-

offense issue by identifying the harm that he suffered as a result of the

admission of the complained-of evidence”, Wilson had waived the issue.

Opinion – 24.

      Justice Huddle authored a concurring opinion, disagreeing “with the

majority’s conclusion that Wilson waived his challenge to the trial court’s

admission of extraneous-offense evidence due to inadequate briefing.”

Concurring Opinion – 1. However, Justice Huddle concluded that the “trial

court’s admission of the extraneous-offense evidence was not an abuse of

discretion.” Concurring Opinion – 7.




                                       5
                            GROUND FOR REVIEW

      The Court of Appeals erred in holding that Wilson had waived his
challenge to the admission of the evidence of an extraneous sexual assault
because he had inadequately briefed resulting harm.

                                 ARGUMENT

      It is important to emphasize that the Court of Appeals did not find that

Wilson had inadequately briefed his entire challenge to the admission of the

evidence of an extraneous sexual assault. Rather, the Court found only that

Wilson had inadequately briefed harm. The assertion of the Court that Wilson

had not argued in his brief that he was harmed by the admission of the

evidence is factually not true. Wilson specifically and unambiguously argued,

“Wilson was prejudiced by its admission.” Brief of Appellant – p. 40. Further,

Wilson did identify the harm – his first trial ended in a hung jury, whereas his

second did not.

      In finding that Wilson had inadequately briefed harm, the Court of

Appeals was not only unable to find Wilson’s argument, but searched for it in

isolation from the remainder his brief.      The Court made no mention of

Wilson’s exhaustive summary of the guilt/innocence phase evidence,

including the evidence of the extraneous sexual assault; made no mention that

Wilson had specifically and unambiguously incorporated that summary by

reference into his argument that he was prejudiced; made no mention of

                                       6
Wilson’s 4-page argument that the evidence of the extraneous sexual assault

had been erroneously admitted; made no mention that Wilson had cited in his

argument Curtis v. State, 89 S.W.3d 163 (Tex.App..-Fort Worth 2002, pet.

ref’d), in which the court reversed a conviction for capital murder because of

the erroneous admission of evidence of an extraneous offense; and made no

mention that Wilson had argued that his first trial, during which the evidence

had not been admitted, had concluded with a hung jury.           In the Court’s

analysis, Wilson’s argument has not merely become unrecognizable – it has

vanished. This is hardly a fair reading, much less a liberal reading, of Wilson’s

brief.

         In finding that Wilson had inadequately briefed harm, the Court of

Appeals relied at least in part upon Cardenas v. State, 30 S.W.3d 384, 393

(Tex.Crim.App. 2000). However, Cardenas v. State is readily distinguishable,

as none of the cases cited by the appellant therein was applicable to the issue

under review, and the appellant therein failed to address whether the alleged

error was harmless. Wilson, on the other hand, cited applicable cases, and, as

he has already noted, the assertion of the Court that Wilson had not argued in

his brief that he was harmed is factually not true.




                                        7
      It is not for the Court of Appeals to search for a reason to refuse to

address an issue it would prefer not to address. The Texas Rules of Appellate

Procedure include the following:

38.1 Appellant’s Brief

      (i) Argument. The brief must contain a clear and concise argument for
the contentions made, with appropriate citations to authorities and to the
record.

38.9 Briefing Rules to be Construed Liberally

      Because briefs are meant to acquaint the court with the issues in a case
and to present argument that will enable the court to decide the case,
substantial compliance with this rule is sufficient, subject to the following:

        (a) Formal Defects. If the court determines that this rule has been
flagrantly violated, it may require a brief to be amended, supplemented, or
withdrawn. If another brief that does not comply with this rule is filed, the
court may strike the brief, prohibit the party from filing another, and proceed
as if the party had failed to file a brief.

      (b) Substantive Defects. If the court determines, either before or after
submission, that the case has not been properly presented in the briefs, or
that the law and authorities have not been properly cited in the briefs, the
court may postpone submission, require additional briefing, and make any
other order necessary for a satisfactory submission of the case.

      Wilson argument regarding the admission of the evidence of an

extraneous sexual assault was in substantial compliance with Rule 38. It was

clear and concise, and included appropriate citations to authorities and to the

record. The Court of Appeals made no Rule 38.9(a) determination that Wilson

had flagrantly violated Rule 38. Nor could it. Wilson’s brief stands on its own

                                       8
merits, and is a genuine effort.       Notwithstanding the absence of such a

determination, the Court did not order that Wilson’s brief be “amended,

supplemented, or withdrawn.”           The Court did make a Rule 38.9(b)

determination that Wilson had not argued that he was harmed by the

admission of the evidence of an extraneous sexual assault, but did not “require

additional briefing” or “make any other order necessary for a satisfactory

submission of the case.”

      Johnson v. State, 43 S.W.3d 1 (Tex.Crim.App. 2001), and Ovalle v. State,

13 S.W.3d 774 (Tex.Crim.App. 2000), cited by Justice Huddle in his concurring

opinion, although not directly on point, are instructive. No burden to show

harm should be placed on a defendant who appeals. No party should have the

burden to prove harm from an error, and there is ordinarily no way to prove

actual harm. It is the duty of the reviewing court to assess harm from the

context of the error. Parties may assist by suggesting how the appellant was

harmed, or was not, but it is the responsibility of the reviewing court to decide

whether it is likely that the error had some adverse effect on the proceeding.

Johnson v. State at 4, and Ovalle v. State at 787.

      The Court of Appeals can not have been concerned about delay.

Wilson’s attorney tried this case twice in August 2013, first from Monday, 5

August 2013, through Thursday, 8 August 2013, and second from Monday, 19

                                          9
August 2015, through Thursday, 22 August 2015. See CR-85-87. After trial

had concluded the second time, he filed a motion to withdraw on 22 August

2013, which was granted by the trial court the same day. CR-72-73. The trial

court appointed another attorney to represent Wilson on appeal. CR-78.

      Wilson’s brief on appeal was originally due to be filed on 12 December

2013, but was not. On 17 January 2014, the other attorney filed a motion to

withdraw, which was granted by the trial court on 21 January 2014. SCR-4-5.

On the same day, the trial court also appointed Wilson’s attorney to represent

Wilson on appeal. SCR-5.

      Wilson filed a motion on 12 February 2014, requesting an extension of

time to file his brief until Monday, 17 March 2014. The Court of Appeals

granted the motion on 13 February 2014. Wilson filed a motion on 19 March

2014, requesting a second extension of time until Friday, 21 March 2014, and

filed his brief on 20 March 2014, but after 5:00 p.m. The Court granted the

second motion on 26 March 2014.

      The State’s brief was originally due to be filed on 21 April 2014, but the

State filed a motion on 25 April 2014 requesting an extension of time until 21

May 2014. The Court of Appeals granted the motion on 25 April 2014, and the

State filed its brief on 21 May 2014.



                                        10
      On 8 December 2014, the Court of Appeals set Wilson’s appeal for

submission on 28 January 2015. On 31 March 2015, the Court gave notice that

the appeal would be decided by a new panel, only Justice Jennings remaining

from the original. On 25 August, 2015, the Court issued its opinions.

      58 days elapsed from the date Wilson’s attorney was appointed to

represent Wilson on appeal to the date he filed Wilson’s brief. 62 days

elapsed from the date Wilson’s brief was filed to the date the State filed its

brief. 252 days elapsed from the date the State’s brief was filed to the original

submission date set by the Court of Appeals. 458 days elapsed from the date

the State’s brief was filed to the date the Court issued its opinions. An order

by the Court to re-brief the issue of harm would not have caused any

meaningful delay.

      The State understood that Wilson was complaining that he had been

harmed. In fact, in arguing that the evidence was admissible, the State all but

acknowledged that that had been the point:

     The complained of evidence in this case clearly made a fact of
consequence more probable.

Brief of the State – p. 9.

      Unquestionably, the trial court could have concluded that the
extraneous offense provided at least a small nudge toward proving that the
victim in the present case did not consent.


                                       11
Brief of the State – p. 10.

      The trial court could properly conclude that this evidence, despite
differences in the circumstances surrounding the offenses, provided at least
some evidence that the appellant engaged in nonconsensual intercourse with
C.W.

Brief of the State – p. 12.

      Wilson did adequately brief Issue No. 2 raised before the Court of

Appeals. He cited appropriately to authority and to the record, and he argued

that he was prejudiced by the admission of the evidence of an extraneous

sexual assault. He noted that the evidence had not been admitted at his first

trial, which ended in a hung jury. The Court erred in holding otherwise.

      A criminal appeal is a valuable right, a very valuable right. That right

includes the right to a decision on the merits. Wilson can not know what the

decision of the Court of Appeals would have been had that Court not

erroneously found that he had not argued that he was harmed by the

admission of the evidence of an extraneous sexual assault. His case should be

remanded to that Court to address Issue No. 2 on its merits.




                                      12
                                PRAYER FOR RELIEF

      Appellant Keith Ladale Wilson accordingly prays that the Court grant

his petition for discretionary review, reverse the judgment of the Court of

Appeals for the First District in No. 01-13-00917-CR, and remand the case to

the Court of Appeals to address Issue No. 2 on its merits.

                                                 Respectfully submitted,
                                                 Keith Ladale Wilson
                                                 Petitioner

                                                 By: /s/ James F. Keegan
                                                     James F. Keegan
                                                     Texas bar No. 11155400
                                                     4421 Jim West Street
                                                     Bellaire, Texas 77401
                                                     713-668-4797
                                                     713-668-4798-facsimile
                                                     whynyet@sbcglobal.net
                                                     Attorney for petitioner




                                       13
                       CERTIFICATE OF COMPLIANCE

      I hereby certify that the word count for this petition for discretionary
review, exclusive of appendix A and appendix B, is 3885 words.

                                                    /s/ James F. Keegan
                                                    James F. Keegan

                         CERTIFICATE OF SERVICE

      A copy of this petition for discretionary review was electronically
served upon Philip Anthony Grant, District Attorney pro tem, Polk County,
Texas, DAInfo@mctx.org, and upon The State Prosecuting Attorney,
information@spa.texas.gov on this the 1st day of December, 2015.

                                                    /s/ James F. Keegan
                                                    James F. Keegan




                                      14
APPENDIX A
APPENDIX B
