                                                                           ACCEPTED
                                                                       03-14-00228-CR
                                                                               5444092
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                  5/28/2015 7:50:44 AM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
                        NO. 03-14-00228-CR

                   IN THE COURT OF APPEALS             FILED IN
                                                3rd COURT OF APPEALS
                             FOR THE                AUSTIN, TEXAS
         THIRD SUPREME JUDICIAL DISTRICT OF         TEXAS
                                                5/28/2015 7:50:44 AM
                            AT AUSTIN             JEFFREY D. KYLE
                                                        Clerk
__________________________________________________________________

                     NO. D1-DC-12-904077

               IN THE 147TH DISTRICT COURT
                 OF TRAVIS COUNTY, TEXAS
__________________________________________________________________

                         TROY WILLIAMS,
                           APPELLANT

                                V.

                        STATE OF TEXAS,
                            APPELLEE
__________________________________________________________________

                       APPELLANT’S BRIEF
__________________________________________________________________
ORAL ARGUMENT REQUESTED

                               LINDA ICENHAUER-RAMIREZ
                               ATTORNEY AT LAW
                               1103 NUECES
                               AUSTIN, TEXAS 78701
                               TELEPHONE:     512-477-7991
                               FACSIMILE 512-477-3580
                               EMAIL: LJIR@AOL.COM
                               SBN: 10382944


                              ATTORNEY FOR APPELLANT
                                    TABLE OF CONTENTS


                                                                                                    PAGE

Parties to Trial Court’s Final Judgment...................................................... 3

Index of Authorities .................................................................................... 4

Statement of the Nature of the Case ........................................................... 6

Statement of the Points of Error ................................................................. 8

Statement of Facts....................................................................................... 9

Summary of the Argument ......................................................................... 25

Point of Error Number One ........................................................................ 26

Point of Error Number Two........................................................................ 30

Prayer for Relief ......................................................................................... 35

Certificate of Service .................................................................................. 36

Certificate of Compliance........................................................................... 36




                                                       2
         PARTIES TO TRIAL COURT’S FINAL JUDGMENT

         In accordance with Tex.R.App.Proc. 38.1(a), Appellant certifies

that the following is a complete list of the parties and their counsel:

         (a) the State of Texas represented by:

             Ms. Amy Meredith,	  Assistant District Attorney 	  
             Travis County District Attorney’s Office
             P.O. Box 1748
             Austin, Texas 78767
             	  
             Ms. Marc Chavez, Assistant District Attorney
             Travis County District Attorney’s Office
             P.O. Box 1748
             Austin, Texas 78767

       (b) Mr. Troy Williams, represented by:

             Mr. Alexander Calhoun – trial attorney
             Attorney at Law
             4301 W. William Cannon Dr. #B 150-260
             Austin, Texas 78749-1473

             Ms. Linda Icenhauer-Ramirez - appellate attorney
             Attorney at Law
             1103 Nueces
             Austin, Texas 78701




                                        3
                                   INDEX OF AUTHORITIES

CASES                                                                                                  PAGE

Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App. 1973)........................... 32

Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1985) ............................ 29

Ballard v. State, 193 S.W.3d 916 (Tex.Cr.App. 2006)............................... 27

Bland v. Texas, 2004 Tex.App.LEXIS 4589 (Tex.App.-El Paso
     2004, no pet.) .................................................................................... 33

Carreon v. State, 63 S.W.3d 37 (Tex.App.-Texarkana 2001, pet.
      ref.).................................................................................................... 27

Espinosa v. State, 29 S.W.3d 257 (Tex.App.-Houston [14th] 2000,
     pet. ref.)............................................................................................. 34

Facundo v. State, 971 S.W.2d 133 (Tex.App.-Houston [14th]
     1998, pet. ref.)................................................................................... 33

King v. State, 953 S.W.2d 266 (Tex.Cr.App. 1997)................................... 34

Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90
      L.Ed. 1557 (1946)............................................................................. 34

Johnson v. State, 967 S.W.2d 410 (Tex.Cr.App. 1998) ............................. 34

Perez v. State, 994 S.W.2d 233 (Tex.App.-Waco 1999, no pet.) ............... 32

Posey v. State, 966 S.W.2d 57 (Tex.Cr.App. 1998) ................................... 27

Tijerina v. State, 2003 Tex.App.LEXIS 807 (Tex.App.-San
       Antonio 2003, no pet.) ...................................................................... 33

Webb v. State, 36 S.W.3d 164 (Tex.App.-Houston [14th] 2000, pet.
    ref.).................................................................................................... 34



                                                         4
Van Zandt v. State, 932 S.W.2d 88 (Tex.App.-El Paso 1996,
     pet. ref.)............................................................................................. 32



STATUTES

V.T.C.A. Penal Code, Sec. 20.04(a)(4) ...................................................... 9

V.T.C.A. Penal Code, Sec. 20.04(d)................................................ 8, 26, 27



COURT RULES

Tex.R.App.Proc. 38.1(a)............................................................................. 3

Tex.R.App.Proc. 44.2(b)............................................................................. 34




                                                       5
gave a formal statement to Detective Jones.             Dana told Detective Jones

that there had been no penetration.            (R.R. III, pp. 233-246)   As part of

her investigation, Detective Jones got a search warrant to obtain DNA

samples from appellant and buccal swabs of appellant’s DNA were later

obtained.     (R.R. III, pp. 253-255)

        Sherry Dana underwent a SANE3 exam on the day of the offense.

Sexual assault nurse Julie Gibbs testified she that performed the exam on

Dana.       She noted that Dana had multiple lacerations on her left cheek,

broken blood vessels on her back, bruises on the back of her arm, bruising

on her buttocks, her hand, red marks on one wrist, bloody abrasions on her

other wrist, multiple bruises on her legs and multiple bloody abrasions on

her legs and knees.         Gibbs testified that she also observed injuries in

Dana’s vaginal area.      Specifically, Dana’s urethra was red and irritated and

her perineum had two small abrasions.            Gibbs testified that she conducted

an internal exam and found a few red areas on Dana’s cervix, however she

could not say how those injuries occurred.         In fact she did not know if those

red areas could have been normal for Dana.            (R.R. IV, pp. 25-61)   Gibbs

testified that she took various samples from Dana, including a blood sample,

vaginal swabs, labial swabs, hair samples (both head and pubic hair),           and


3
    SANE stands for Sexual Assault Nurse exam.

                                          16
swabs.     (R.R. IV, pp. 99-113)   Prajapati also found DNA on the labial

swabs taken from Dana.       There was a sperm fraction found on the labial

swabs and Prajapati testified that this was consistent with appellant’s DNA

profile and thus appellant could not be excluded as a contributor.   She also

testified that Dana and her husband could be excluded from this DNA

profile.     With respect to the epithelial cells from the labial swabs,

Prajapati testified that she found a mixture of at least three people.   She

also testified that neither appellant, Dana or Dana’s husband could be

excluded as contributors.              (R.R. IV, pp. 113-117)             On

cross-examination Prejapati testified that she could not tell how DNA got to

a specific location.    She further testified that she could not tell how

appellant’s epithelial DNA was put on the victim’s labia.     She admitted it

could have been through direct contact or through transference. (R.R. IV,

pp. 128, 134)

       The State rested after Sapana Prajapati’s testimony and then the

defense rested without putting on any evidence.      Both sides then closed.

(R.R. IV, p. 155)      After both sides rested and closed, the jury heard

argument from both sides, deliberated and then announced its verdicts.   The

jury found appellant guilty of the offenses of aggravated kidnapping as

alleged in Cause No. D-1-DC-12-904077 and guilty of the offense of


                                      18
STATEMENT OF THE POINTS OF ERROR


POINT OF ERROR NUMBER ONE

    THE TRIAL COURT ERRED IN REFUSING TO GIVE A
    JURY INSTRUCTION IN THE PUNISHMENT CHARGE ON
    RELEASE IN A SAFE PLACE IN ACCORDANCE WITH
    V.T.C.A. PENAL CODE, SEC. 20.04(D).



POINT OF ERROR NUMBER TWO

    THE   TRIAL   COURT   ERRED  IN   OVERRULING
    APPELLANT’S OBJECTION TO PROSECUTOR AMY
    MEREDITH’S IMPROPER JURY ARGUMENT ON PAROLE.




                        8
       and struggling even at a point for her keys, at the car she was
       pushed. So I find that it was one episode; and so, therefore, I
       don't think it's appropriate to put that language in there. And I
       will allow you to make whatever record you would like with
       respect to that, Mr. Calhoun.

              MR. CALHOUN: Yes, sir. If you would please note our
       objection to the omission. We believe the evidence would give
       the jury -- it is a fact issue before the jury and by omitting that
       from the Court's charge it prevents us from raising an
       affirmative defense in our closing argument. Just please note
       our exception.” (R.R. VI, pp. 45-46)

       After having been found guilty of aggravated kidnapping, during

punishment, a defendant may raise the issue of whether he voluntarily

released the victim in a safe place.        V.T.C.A. Penal Code, Sec. 20.04(d).

However, to be entitled to a jury instruction on the issue of voluntary

release, the record must contain evidence that raises the issue and the

defense must request a voluntary release instruction or object to the absence

of such an instruction in the charge on punishment. See Posey v. State, 966

S.W.2d 57, 63 (Tex.Cr.App. 1998).            In assessing whether the evidence

raises the issue, the focus must be on the evidence relating to the defendant's

conduct.   See Carreon v. State, 63 S.W.3d 37, 39 (Tex.App.-Texarkana

2001, pet. ref.).   A defendant is entitled to an instruction on voluntary

release in a safe place only when he performed "some overt and affirmative

act that informs the victim that he has been fully released from captivity. . .

."   Ballard v. State, 193 S.W.3d 916, 919 (Tex.Cr.App. 2006).

                                       27
her.   The man asked her how she was doing and she told him she was fine.

Dana testified that at this point she could see that the man’s pants were

unzipped and his penis was sticking completely out.      She told the man that

he should zip up his pants and they should go their separate ways and he

would not get in trouble.    Dana testified that she then stepped past the man

and headed back towards the recreation center.       The next thing she knew

she felt herself being drug backwards towards the woods that were next to

the trail.   Dana testified that she struggled with the man and tried to trip

him.     At one point she was able to free herself from the man’s grasp and

she began running towards the recreation center.    However the man jumped

on her back and she fell facedown on the ground.        While she was on the

ground, the man tried to pull her pants down.      She fought with him and at

one point was able to grab a rubber bracelet off of his wrist and managed to

stick the bracelet in her pocket.   The man continued his attack, covering her

mouth with his hand and jabbing his fingernails into her cheeks.     The man

began thrusting his penis against her vagina.           After a bit the man

ejaculated and then he said, “Okay, I’m done and stood up.      Dana testified

that she was able to put her clothes back on.      The man told Dana that he

had a gun and was going to kill her.        Dana began trying to reason with

him, telling him that if he let her go, she would just go to work and not tell


                                       10
anyone what had occurred.        In response, the man said that he was from

New Orleans and already had two felonies so it would not matter if he killed

her.    Dana testified that she began walking to the recreation center and he

continued to follow her.    It was during this time that Dana realized that the

man had the keys to her car.              When Dana got to the front of the

recreation center, she began to reason with the man that if he would put her

keys on the ground and walk away, she would not tell anyone what had

happened.     The man did put the keys on the ground and then turned around

to leave.     Dana then tried to go inside the recreation center but the door to

the building was locked.      The man saw her trying to go into the building

and said, “You lied.”    He then picked the car keys up from the ground and

headed towards Dana’s car.             (R.R. III, pp. 86-95)     Dana testified

that she did not believe the man had a gun, but that he was just trying to act

aggressive and dangerous.       She testified that the man got into her car and

tried to start it but he could not start it.   Dana decided she was going to

run across Rundberg Lane to Dobie Middle School.          But before she began

running, the man asked her to help him start the car.        Dana decided she

would try and get the car keys away from him so that he could not escape.

She got in the car, pulled the keys out of the ignition and attempted to run

away.       The man pursued her and pushed her, causing her to drop the keys.


                                        11
The man picked the keys up and ran back to the car.           At this point Dana

ran across Rundberg Lane towards the middle school where an Austin

Independent School District vehicle was in the parking lot.          Dana ran up

to that vehicle and asked a man standing by the truck for help.         The man

dialed 911 and then Dana talked to the police dispatcher.         Police quickly

responded.     Dana identified appellant in the courtroom as her attacker and

she testified that appellant threatened her with death.     (R.R. III, pp. 96-106)

On cross-examination, Dana testified that she did not think appellant

ejaculated inside of her.     She testified that she did not believe there was

“completed intercourse and ejaculation.”       She also testified that she told

the crime scene tech who responded to the scene as well as the police who

responded to the scene and the detective to whom she later gave her

statement that appellant had not penetrated her.          (R.R. III, pp. 138-153)

Dana testified on redirect that she was in fear of her life during the attack

and did not expect to get out of it alive.   (R.R. III, p. 163)

      Stuart Miller, an employee of the Austin Independent School District

was at Dobie Middle School to make air conditioner repairs that morning.

He testified that Dobie Middle School was right across the street from the

Gus Garcia Recreation Center.       Miller testified that as he was standing by

his truck in the school parking lot, a woman ran across the street and up to


                                        12
his truck and asked to use his cell phone to call the police.   He described

the woman as being very shook up and scared.        Miller called 911 and then

put the lady on the phone.         He stayed with her until police arrived.

Miller told the jury that as the lady told him the story of what had happened

to her, he saw a person running across the field in a southeasterly direction

away from the recreation center.     (R.R. III, pp. 37-42)

      The first officer on the scene was APD Officer Phillip Tripp.      When

he arrived, he saw Sherry Dana standing in the parking lot with Mr. Miller.

Tripp testified that Dana was disheveled and covered in dirt.         She had

blood on her face and on her left wrist.    In addition she had red marks on

her face and neck, and redness and swelling near her right eye.       (R.R. III,

pp. 46-50).   Officer Tripp testified that Dana told him that she was walking

behind the recreational center when she saw a young black male in his 20s.

He was thin and wearing a black knitted hat, a short-sleeved red T-shirt, blue

jeans, flannel shorts which showed underneath his jeans and he was carrying

a phone or a pager.    Dana told Officer Tripp that when she first saw the

young man he was walking towards her and had his penis exposed.          As he

approached her, the man tried to talk to her.    Dana told Officer Tripp that

she told the man that there were people at the recreation center and that he

would get in trouble if they saw him with his penis exposed.     She said that


                                       13
the man suddenly grabbed her and drug her through the dirt on her stomach.

At one point her pants were pulled down and she was laying face down on

the ground.   The young man got on top of her and pushed his penis towards

her genitals from behind and ejaculated on her legs and genital area.

(R.R. III, pp. 59-60)      Upon hearing this story Officer Tripp broadcast a

description of the subject and called for a crime scene unit.    (R.R. III, p. 61)

      Other APD officers responded to the area.           Officer Christopher

Gaines testified that he was about ¼ mile away from the recreation center

when he saw someone (appellant) matching the description of the assailant.

When he turned on his overhead lights, appellant took off running.        Officer

Gaines exited his patrol car and chased appellant on foot.          After a foot

pursuit during which appellant was tased, he was apprehended.            Officers

found no weapons on appellant.         (R.R. III, pp. 195-213)

      Appellant was immediately taken to the APD sex crimes office where

he was photographed by Crime Scene Specialist Victor Ceballos.

Ceballos noted that appellant had an injury to his left wrist and had dirt and

mud on his hand.      He also had dirt between his fingers.      Ceballos noted

injuries on appellant’s torso under his shirt and there was dirt on his shoes,

his legs and his shorts.    Ceballos took fingernail scrapings from appellant

and swabbed appellant’s hands and penis area.          Ceballos also collected


                                       14
appellant’s clothing and tennis shoes.        (R.R. III, pp. 217-231)

       Phillip Weaver, the custodian at the recreation center was going about

his regular duties on March 8, 2012, when a little before 8:00 a.m., he

looked out the front doors of the building and saw a man walking away from

the front of the building.   He described the individual he saw as a black

man, wearing jeans, a red T-shirt and a baseball cap.         The man had a thin

build and was from 6’ to 6’2” in height.        Weaver testified that a little after

that he heard someone pounding on the front door of the recreation center.

By the time Weaver got to the front door, he saw a lady walking away from

the building and towards a car in the parking lot.         Thinking nothing was

amiss, Weaver went back to work.              (R.R. III, pp. 18-26)        Weaver

testified that later when police questioned him about the incident he was able

to give them copies of the surveillance video from the recreation center.

The video showed the individuals that he had described for the jury and

showed the woman going to her car and opening the passenger door of her

car.   The video then showed the man he had seen approaching the woman.

(R.R. III, pp. 27-30)

       Austin Police Department Detective Angie Jones responded to the

scene on the day of the offense and took an initial statement from Dana.

On March 12, 2012, four days later, Dana came to the sex crimes unit and


                                         15
gave a formal statement to Detective Jones.             Dana told Detective Jones

that there had been no penetration.            (R.R. III, pp. 233-246)   As part of

her investigation, Detective Jones got a search warrant to obtain DNA

samples from appellant and buccal swabs of appellant’s DNA were later

obtained.     (R.R. III, pp. 253-255)

        Sherry Dana underwent a SANE3 exam on the day of the offense.

Sexual assault nurse Julie Gibbs testified she that performed the exam on

Dana.       She noted that Dana had multiple lacerations on her left cheek,

broken blood vessels on her back, bruises on the back of her arm, bruising

on her buttocks, her hand, red marks on one wrist, bloody abrasions on her

other wrist, multiple bruises on her legs and multiple bloody abrasions on

her legs and knees.         Gibbs testified that she also observed injuries in

Dana’s vaginal area.      Specifically, Dana’s urethra was red and irritated and

her perineum had two small abrasions.            Gibbs testified that she conducted

an internal exam and found a few red areas on Dana’s cervix, however she

could not say how those injuries occurred.         In fact she did not know if those

red areas could have been normal for Dana.            (R.R. IV, pp. 25-61)   Gibbs

testified that she took various samples from Dana, including a blood sample,

vaginal swabs, labial swabs, hair samples (both head and pubic hair),           and


3
    SANE stands for Sexual Assault Nurse exam.

                                          16
fingernail scrapings.     (R.R. IV, pp. 62-65)         On cross-examination,

Gibbs admitted that she found no abrasions to the area around Dana’s

urethra, the labia majora, the labia minora, or the posterior forchetta.    She

also testified that the abrasions she saw on Dana’s perineum were very small

-- .2 millimeters (1/8 centimeter or less).            She also testified on

cross-examination that she did not see any injury to Dana’s cervix and could

not say that there was any contact with Dana’s cervix.           (R.R. IV, pp.

86-91)

      Texas Department of Public Safety DNA analyst Sapana Prajapati

testified that she performed the DNA analysis in this case.       She testified

that she had DNA samples from appellant, Sherry Dana and Sherry Dana’s

husband Peter Dana.     When she tested the vaginal swabs obtained from

Sherry Dana during the SANE exam, she found a mixture in the sperm

fraction from the swab.      Her analysis revealed that appellant could be

excluded as a contributor to that mixture, however Dana and her husband

could not be excluded as contributors to that mixture.    She testified that she

also was able to obtain a DNA profile from the epithelial cell fraction of the

vaginal swabs.       Again her testing showed that appellant could be

excluded; however Dana’s husband could not be excluded.            The bottom

line was that appellant was excluded from the DNA found on Dana’s vaginal


                                      17
swabs.     (R.R. IV, pp. 99-113)   Prajapati also found DNA on the labial

swabs taken from Dana.       There was a sperm fraction found on the labial

swabs and Prajapati testified that this was consistent with appellant’s DNA

profile and thus appellant could not be excluded as a contributor.   She also

testified that Dana and her husband could be excluded from this DNA

profile.     With respect to the epithelial cells from the labial swabs,

Prajapati testified that she found a mixture of at least three people.   She

also testified that neither appellant, Dana or Dana’s husband could be

excluded as contributors.              (R.R. IV, pp. 113-117)             On

cross-examination Prejapati testified that she could not tell how DNA got to

a specific location.    She further testified that she could not tell how

appellant’s epithelial DNA was put on the victim’s labia.     She admitted it

could have been through direct contact or through transference. (R.R. IV,

pp. 128, 134)

       The State rested after Sapana Prajapati’s testimony and then the

defense rested without putting on any evidence.      Both sides then closed.

(R.R. IV, p. 155)      After both sides rested and closed, the jury heard

argument from both sides, deliberated and then announced its verdicts.   The

jury found appellant guilty of the offenses of aggravated kidnapping as

alleged in Cause No. D-1-DC-12-904077 and guilty of the offense of


                                      18
aggravated sexual assault as alleged in Cause No. D-1-DC-12-904080.

(R.R. IV, p. 201; C.R. 128-135)

      Appellant elected to go to the jury for punishment.      The indictment

contained an enhancement allegation that reads as follows:

      “And the Grand Jury further presents in and to said Court that,
      prior to the commission of the aforesaid offense, on the 5th day
      of March, 2007, in cause number 2006-08296J in the 314th
      District Court of Harris County, Texas, a juvenile court, the
      Defendant was adjudicated under Section 54.03, Family Code,
      to have engaged in delinquent conduct constituting the felony
      offense of Aggravated Sexual Assault of a Child, for which the
      Defendant was committed to the Texas Youth Commission
      under Sections 54.04(d)(2) and 54.04(m), Family Code.” (C.R.
      5-6)

       Appellant entered a plea of not true to the enhancement allegation.

(R.R. V, p. 10)   During the punishment phase of the case, the State called a

latent fingerprint examiner who testified that he took appellant’s fingerprints

and compared them to fingerprints on State’s Exhibit 75, a fingerprint card

for a person by the name of Troy Luther Williams with a date of birth of

                   and found that they matched.     The State then introduced

State’s Exhibits 72 and 73 into evidence which were then tied to State’s

Exhibit 75 through various identifying information.        State’s Exhibit 72

showed that appellant had been adjudicated as a juvenile for the offense of

aggravated sexual assault of a child under the age of 14 on October 18, 2006

and placed on five years probation.   State’s Exhibit 72 also showed that the

                                      19
date of the offense was July 5, 2006.      (R.R. V, pp. 24-25; R.R. VII, pp.

138-144)      State’s Exhibit 73 showed appellant’s probation was revoked

on March 5, 2007 and appellant was committed to the Texas Youth

Commission on an indeterminate sentence.        (R.R. V, p. 25; R.R. VII, pp.

146-149)

      The State put on several additional witnesses.            Sherry Dana

described her state of mind as being fearful since the offense.         (R.R. V,

pp. 26-27)

      R        G        took the stand and told the jury about the offense for

which appellant had been adjudicated as a juvenile.     G         testified that

she lived in Kingwood, a suburb of Houston and was the mother of two

children, C        age 19 and S     , age 13.    She testified that the family

knew appellant as a child because he was a friend of C              .       When

S      was six years old she was sexually assaulted by appellant.       G

testified that the incident affected the whole family, especially S            .

(R.R. V, pp. 31-37)

      Dr. John Hertenberger, the clinical director at the Rockdale Regional

Juvenile Justice Center, testified that the Rockdale center is a privately run

post-adjudication facility for adolescents with sexual behavior problems.

He testified that appellant was admitted to the center on November 8, 2006.


                                      20
Dr. Hertenberger described for the jury how a juvenile could progress

through the three different phases of the center’s program – behavior

compliance, education, and therapy and testified that it was possible for a

juvenile to complete the program in four and a half months.               Dr.

Hertenberger testified that appellant was unsuccessfully discharged from the

program on February 14, 2007 after only three months           (R.R. V, pp.

38-42)

      Alysia Fain, a case manager from the McLennan County State

Juvenile Correctional Facility, a part of the Texas Juvenile Justice

Department, was the next witness.    She testified that there are three tracks

that the juveniles work on while they are at the facility – academic,

behavioral and correctional.   Fain testified that appellant was sent to the

unit in May of 2007 and was very inconsistent in his progress.             In

December of 2007, he was placed in the sex offender program but he was

unsuccessfully discharged from the program in May of 2008.                 In

September of 2008, he was placed back in the program but was

unsuccessfully discharged again in June of 2010.    In July of 2010, he was

put back in the program.    Initially he was up and down in his progress but

in his last four months, he began to do better by controlling his impulsive

behaviors and his anger and internalizing what he was learning.           He


                                     21
finally completed the sex offender program in January of 2011.              Fain

testified that normally the program is a nine to twelve month program but it

took appellant two years and eight months to complete it.              After his

discharge, from the program, appellant was sent to a half-way house in

August of 2011.       Fain testified that appellant was at her facility from ages

14 to 18.   (R.R. V, pp. 58-78)

      Richard Williamson, a licensed sex offender treatment provider,

testified that he worked at the MacLennan Unit of the Texas Juvenile Justice

Department in 2010 and 2011.        During that time he worked as appellant’s

sex offender program therapist.     Williamson testified that initially appellant

denied part of his offense and he was very slow to engage in the program.

He gradually made progress and was eventually successfully discharged

from the program.      He testified that in the end appellant showed empathy

for his victim and seemed to grasp the strategies to keep from reoffending.

(R.R. V, pp. 79-85)

      Desiree Welsch, another program therapist at the MacLennan Unit

testified that she also worked with appellant while he was at the unit.      She

described appellant as very manipulative and dramatic.            (R.R. V, pp.

90-94)

      Kervin Babers testified that in 2011 he was employed at Turman


                                        22
House, a halfway house in Austin for juveniles who were coming out of the

Texas Juvenile Justice Department.      He testified that appellant came to the

halfway house in 2011 when he was 18 to learn life skills.              Babers

testified that appellant escaped from the locked facility on August 31, 2011.

Police found him and brought him back.        Appellant stayed at the halfway

house for a few months and was discharged shortly before his 19th birthday.

(R.R. VI, pp.. 6-13)

       Kevin Wooden testified that he worked as a juvenile corrections

officer at the Turman House for ten years.       He recounted another incident

on September 20, 2011, when appellant and another boy escaped from the

facility.   (R.R. VI, pp. 20-22)

       The State’s last witness, Sgt. M. Hardin testified about an incident that

occurred at the Travis County Correctional Center (Del Valle) while

appellant was incarcerated for these offenses.     Sgt. Hardin testified that on

March 19, 2014, she was inside a building watching appellant who was

outside in the recreation yard through a window.     She related that appellant

was facing the window she was behind and he was masturbating.             (R.R.

VI, pp. 27-28)

       The State rested after Sgt. Hardin’s testimony.      The defense rested

without putting on any evidence and both sides then closed.        (R.R. VI, p.


                                       23
44)

      After hearing the argument of counsel from both sides, the jury

found the enhancement allegation to be true and assessed appellant’s

punishment at sixty (60) years for the offense of aggravated kidnapping and

eighty-five years and a $10,000.00 fine for the offense of aggravated sexual

assault.   (R.R. VI, pp. 72-73; C.R. 136-147)




                                     24
                    SUMMARY OF THE ARGUMENT

      In his first point of error, appellant argues that the trial court erred in

refusing appellant’s request to give the jury an instruction in the punishment

jury charge about the appellant releasing the complainant in a safe place.

Appellant asserts that the evidence showed that when he left the complainant

at the door of the recreation center and attempted to leave in the

complainant’s car, she was released in a safe place.           The jury should

have been given the opportunity to make a finding on this issue.          If the

jury had found that appellant had released the complainant in a safe place,

his punishment would have been capped at twenty years.         Instead, the jury

was given a punishment range of that of a first degree felony and then

assessed appellant’s punishment for aggravated kidnapping at sixty years.

Appellant was harmed.

      In his second point of error, appellant argues that the trial court erred

when it overruled his objection to the prosecutor’s improper jury argument

regarding parole.   The prosecutor instructed the jury on how to violate the

parole law charge by calculating when appellant would be eligible for

parole.   This is a clear violation of the law and the trial court erred in

overruling appellant’s objection.




                                       25
               POINT OF ERROR NUMBER ONE
THE TRIAL COURT ERRED IN REFUSING TO GIVE A JURY
INSTRUCTION IN THE PUNISHMENT CHARGE ON RELEASE IN
A SAFE PLACE IN ACCORDANCE WITH V.T.C.A. PENAL CODE,
SEC. 20.04(D).

      Aggravated kidnapping is normally a first degree felony.     However,

if the evidence shows that the defendant released the victim in a safe place,

the level of the offense is reduced to a second degree felony.      V.T.C.A.

Penal Code, Sec. 20.04(d) provides the following:

      “(d) At the punishment stage of a trial, the defendant may raise
      the issue as to whether he voluntarily released the victim in a
      safe place.       If the defendant proves the issue in the
      affirmative by a preponderance of the evidence, the offense is a
      felony of the second degree.”

      During the charge conference at the conclusion of the punishment

phase of the trial, the court explained its reasoning for not instructing the

jury on “release in a safe place”:

             “THE COURT: Back on the record, case at trial State
      versus Troy Luther Williams. Prior to the break, we had gone
      over the proposed charge that the Court had given to both
      parties. The State did not want the safe place language in the
      aggravated kidnapping charge. The Court has now reviewed the
      entire testimony of the witness; and so, therefore, based on that
      I do not believe that that particular portion of the charge would
      be appropriate in light of the testimony, so I removed that from
      the charge. It is the Court's finding that this was one ongoing
      episode and even after the assault took place and she went to
      the rec center and then went to the car, at no point was she
      quote, unquote, released. In fact, she was even negotiating

                                     26
       and struggling even at a point for her keys, at the car she was
       pushed. So I find that it was one episode; and so, therefore, I
       don't think it's appropriate to put that language in there. And I
       will allow you to make whatever record you would like with
       respect to that, Mr. Calhoun.

              MR. CALHOUN: Yes, sir. If you would please note our
       objection to the omission. We believe the evidence would give
       the jury -- it is a fact issue before the jury and by omitting that
       from the Court's charge it prevents us from raising an
       affirmative defense in our closing argument. Just please note
       our exception.” (R.R. VI, pp. 45-46)

       After having been found guilty of aggravated kidnapping, during

punishment, a defendant may raise the issue of whether he voluntarily

released the victim in a safe place.        V.T.C.A. Penal Code, Sec. 20.04(d).

However, to be entitled to a jury instruction on the issue of voluntary

release, the record must contain evidence that raises the issue and the

defense must request a voluntary release instruction or object to the absence

of such an instruction in the charge on punishment. See Posey v. State, 966

S.W.2d 57, 63 (Tex.Cr.App. 1998).            In assessing whether the evidence

raises the issue, the focus must be on the evidence relating to the defendant's

conduct.   See Carreon v. State, 63 S.W.3d 37, 39 (Tex.App.-Texarkana

2001, pet. ref.).   A defendant is entitled to an instruction on voluntary

release in a safe place only when he performed "some overt and affirmative

act that informs the victim that he has been fully released from captivity. . .

."   Ballard v. State, 193 S.W.3d 916, 919 (Tex.Cr.App. 2006).

                                       27
      A review of the evidence shows that appellant did several “overt and

affirmative act[s]” that informed the victim that she had been fully released.

Sherry Dana testified that after appellant finished assaulting her, she began

walking back towards the rec center and appellant walked beside her.      She

testified that when they reached the building the following occurred:

      “When I got to the front of the building, I just -- he kept on
      walking with my keys. And I said, just leave the keys and
      nothing is going to happen. And so he turned back and he set
      the -- oh, he came back towards me and it scared me that he
      was coming back towards me, so I said, just put them on the
      ground, put them on the ground. And he put them on the ground
      and he turned around to leave again. And I just thought that I
      could just push on that door and be inside and the door was
      locked. (R.R. III, p. 95)

Clearly when appellant put Dana’s keys on the ground and turned around to

leave, that was an affirmative act on appellant’s part which conveyed to

Dana that he was releasing her from captivity.           Although appellant

ended up coming back to get the keys because he saw Dana knocking on the

front doors of the recreation center, appellant did not resume restraining

Dana, rather he took the keys and got into Dana’s car in an attempt to escape

the scene and leave her there.     (R.R. III, pp.   95-96)      At that point

Dana was released and was not restrained in any way by appellant and was

free to walk across the street and contact the AISD employee who was in the

school parking lot.   The evidence clearly shows that this was a safe place.


                                      28
        The events that occurred after that point were not because appellant

renewed his attack on Dana or because he was attempting to restrain her in

any way.     Rather, the evidence shows that Dana decided to try and stop

appellant from leaving and so she re-engaged with appellant when he asked

her to help him start her car, thinking that if she got the car keys she could

prevent him from leaving the scene in her car.      (R.R. III, pp. 96-97).

        The evidence clearly showed that when appellant walked away from

Dana and attempted to leave the rec center parking lot in her car, this was an

affirmative act on his part that told Dana that the assault and kidnapping was

over.     The trial court clearly erred in refusing appellant’s request to

instruct the jury on the release in a safe place.

        Appellant suffered “some harm” as a result of the trial court’s error.

Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1985).               Had the jury

found that Dana was released in a safe place, appellant’s maximum

punishment would have been capped at twenty years imprisonment.

Instead the jury was given a punishment range with a maximum of life or

ninety-nine years in prison and ended up assessing appellant’s punishment at

sixty years in prison.     Appellant did suffer “some harm.”        This point of

error must be sustained.




                                        29
           POINT OF ERROR NUMBER TWO
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
OBJECTION TO PROSECUTOR AMY MEREDITH’S IMPROPER
JURY ARGUMENT ON PAROLE.

      During her closing argument at punishment, prosecutor Amy

Meredith made an improper jury argument applying the parole law to

appellant:

             “What this charge is telling you is, when you go back
      there you can't say, I wonder when he'll be paroled. What you
      do know and what the law provides is that he has to serve at
      least half of the term before he is eligible for parole. And, ladies
      and gentlemen, you cannot consider the eligibility, if he is
      actually going to get paroled. Okay? That is not something that
      you need to be talking about. What we do know and as an
      example, let's say you gave a 50-year sentence, he would be
      eligible for parole –

            MR. CALHOUN: Judge, may I -- I have an objection.
      May I approach, please?

             THE COURT: Yes.

      (At Bench, on the record)
             MR. CALHOUN: Judge, I object to the State's argument.
      The jury was told not to consider parole and she's actually
      telling them how to consider it and how to calculate the
      sentence by which they will consider it. I believe that the whole
      argument we have heard here while arguing Paragraph 6 is, in
      fact, directing them to consider this subliminally.

             THE COURT: I'm not understanding your objection.

            MR. CALHOUN: The State is telling the jury don't
      consider parole, but he has to serve half the time, so if you want

                                       30
     him to serve a 50-year sentence or, you know. She's directing
     the jury how to do the calculations, Judge. She's directing them
     to Paragraph 6 and basically saying consider it and I think it's
     objectionable. It's one thing to have it in there, but another thing
     to argue and then advise a jury how you can consider the time
     you want him to serve.

            THE COURT: I'm not following. I guess what I'm saying
     is that basically to your objection that -- the instruction says
     they can't consider parole.

            MR. CALHOUN: That's correct, Judge. And the State
     is relying upon that. The State has proceeded beyond that and
     they are now advising the jury how to do the parole
     calculations. I believe she is telling them to do the parole
     calculations in your head by specifically referring to numbers
     and calculating and dividing it.

           THE COURT: That's overruled. I'll make a statement.

           MR. CALHOUN: Note our objection to any more, Judge.

           THE COURT: Okay. Thank you.

     (Open court, defendant and jury present)
            THE COURT: Ladies and gentlemen, you will be guided
     by the charge that has been given to you by the Court. Like I
     said to you, what the lawyers are arguing is not evidence. It is
     what they believe the evidence is. Not only that, the law or
     what the law is, the law is the charge that is given to you and
     you will be guided by the charge. All right. Thank you.”
     (R.R. VI, pp. 51-53)

The prosecutor then immediately resumed her improper argument:

           “MS. MEREDITH: Thank you, Your Honor. So what
     the law provides and what the charge says is that the defendant
     will not become eligible until he serves at last half of whatever
     sentence is assessed. So, for example, if it was a 50-year
     sentence, he would not be eligible until 25 years. If it's a

                                      31
         60-year sentence, he is not eligible until 30 years. If it's 60 to
         life, there's still that same 30 years. Okay? So he -- if you assess
         a life sentence, then he is still eligible at 30 years.” (R.R. VI,
         pp. 53)

         Proper jury argument falls into four specific categories: (1)

summation of the evidence, (2) reasonable deduction from the evidence, (3)

answer to argument by opposing counsel, and (4) plea for law enforcement.

Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Cr.App. 1973); Van Zandt v.

State, 932 S.W.2d 88, 92 (Tex.App.-El Paso 1996, pet. ref.).              The law

provides that it is acceptable to quote or paraphrase the court's charge during

argument.      Perez v. State, 994 S.W.2d 233, 237 (Tex.App.-Waco 1999, no

pet.).    This includes explaining or paraphrasing the parole law instruction in

the charge. However, it is improper for a prosecutor to apply the parole law

to the defendant during jury argument. In Perez v. State, the Waco Court

of Appeals noted that there exists a thin, tenuous line between

"paraphrasing" and "applying" the parole law to a particular defendant.

Perez v. State, supra at 237.

         Here, the prosecutor specifically applied the parole law and her

calculations to appellant when discussing parole law eligibility ("let's say

you gave a 50-year sentence, he would be eligible for parole –.").        This was

clearly improper jury argument and the trial court erred when it overruled

appellant’s objection and allowed the prosecutor to continue her improper

                                          32
argument.

      An argument similar to the prosecutor’s in appellant’s case was

condemned by the El Paso Court of Appeals in Bland v. Texas, 2004

Tex.App.LEXIS 4589 (Tex.App.-El Paso 2004, no pet.).            In Bland, the

prosecutor argued the following:

      “For that reason, I feel that you should give him a period of at
      least 20-years, that means he's going to have to serve half that
      before he can become eligible for parole-“      2004
      Tex.App.LEXIS 4589, *24.

      See also Facundo v. State, 971 S.W.2d 133, 136 (Tex.App.-Houston

[14th] 1998, pet. ref.)(where the Court of Appeals found that the defense

lawyer’s argument applying the parole law charge to his client was improper

and thus the trial court properly sustained the State’s objection to his

argument.      See also Tijerina v. State, 2003 Tex.App.LEXIS 807

(Tex.App.-San Antonio 2003, no pet.)(holding that prosecutor's argument

applying parole law to defendant was improper).        Clearly the trial court

erred in overruling appellant’s objection to the prosecutor’s improper

argument.

       Because there was error, the appellate court must determine the

harmfulness of the error to appellant.        Appellant urges the Court of

Appeals to find that this error was harmful.      Because the error involved

the trial court's application of Texas statutory law, the appellate court must

                                      33
utilize Tex.R.App.Proc. 44.2(b) in making that determination.               See

Espinosa v. State, 29 S.W.3d 257, 259 (Tex.App.-Houston [14th] 2000, pet.

ref.).   Under this rule, error that does not affect a substantial right must be

disregarded. A substantial right is affected when the error had a substantial

and injurious effect or influence in determining the jury's verdict.    King v.

State, 953 S.W.2d 266, 271 (Tex.Cr.App. 1997), citing Kotteakos v. United

States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946).         If

the error had no influence or only a slight influence on the verdict, it is

harmless.     Johnson v. State, 967 S.W.2d 410, 417 (Tex.Cr.App. 1998).

However, if the appellate court is unsure whether the error affected the

outcome, the court should treat the error as harmful, i.e., as having a

substantial and injurious effect or influence in determining the jury's verdict.

Webb v. State, 36 S.W.3d 164, 182 (Tex.App.-Houston [14th] 2000, pet.

ref.).

         Here the prosecutor’s argument was a clear violation of the law.

She directly applied the parole law to appellant and she urged the jury to

violate the jury instructions they had just been given and to consider the

parole law when they were assessing appellant’s sentence.        The trial court

overruled appellant’s objection so there was no attempt to cure the error by

the trial court.      The result was that after appellant’s objection was


                                       34
overruled, the prosecutor again repeated her improper argument telling the

jury how to apply the parole law to appellant and the jury was left with the

idea that it was permissible to consider the parole law and appellant’s

eligibility for parole when determining the length of appellant’s prison

sentences.      Appellant received a hefty sentence in this case – sixty years .4

Clearly appellant was harmed by the prosecutor’s improper parole law

argument.        This point of error should be sustained.



                                          PRAYER

       Appellant respectfully requests that this Honorable Court sustain his

points of error and reverse the trial court and remand the case for a new trial.

                                             Respectfully submitted,

                                             /s/ Linda Icenhauer-Ramirez
                                             LINDA ICENHAUER-RAMIREZ
                                             Attorney at Law
                                             1103 Nueces
                                             Austin, Texas 78701
                                             (512) 477-7991
                                             FAX: (512) 477-3580
                                             SBN: 10382944
                                             Email: ljir@aol.com

                                             ATTORNEY FOR APPELLANT

4
  As noted above, this case was tried along with the aggravated sexual assault case in
Cause No. D-1-DC-12-904080.         The jury assessed appellant’s punishment in that case
at eighty-five (85) years and a $10,000 fine. (C.R. 136-147)       The trial court ordered
that both sentences run concurrently. (C.R. 154-155)

                                           35
                  CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief was computer generated and contains

7,256 words, as calculated by the word count function on my computer.

                                      /s/ Linda Icenhauer-Ramirez
                                      LINDA ICENHAUER-RAMIREZ



                     CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of Appellant’s Brief on

Original Appeal served by e-service to the Travis County District Attorney’s

Office on this the 25th day of May, 2015.

                                      /s/ Linda Icenhauer-Ramirez
                                      LINDA ICENHAUER-RAMIREZ




                                     36
