                                                               ACCEPTED
                                                          03-14-00379-CR
                                                                  3840817
                                                THIRD COURT OF APPEALS
                                                           AUSTIN, TEXAS
                                                    1/21/2015 10:52:55 AM
                                                         JEFFREY D. KYLE
                                                                    CLERK
           NO. 03-14-00379-CR

                                        FILED IN
                                 3rd COURT OF APPEALS
                                      AUSTIN, TEXAS
         IN THE COURT OF APPEALS
                                 1/21/2015 10:52:55 AM
               FOR THE
                                     JEFFREY D. KYLE
 THIRD   SUPREME JUDICIAL DISTRICT        Clerk
           AT AUSTIN, TEXAS



     WILLIAM EVERETTE RAZOR,
             Appellant

                     vs.

         THE STATE OF TEXAS,
               Appellee


 Appeal from the 27th Judicial District Court
             Cause No. 70,483
            Bell County, Texas
The Honorable John Gauntt, Judge Presiding


          APPELLANT'S BRIEF


                           Gary E. Prust
                           State Bar No. 24056166
                           1607 Nueces Street
                           Austin, Texas 78701
                           (512) 469-0092
                           Fax: (512) 469-9102
                           gary@prustlaw.com
                           ATTORNEY FOR APPELLANT

ORAL ARGUMENT IS NOT REQUESTED
                         IDENTITY OF THE PARTIES

APPELLANT:
William Everette Razor
TDCJ #01884586
Bartlett State Jail
1018 Arnold Dr.
Bartlett, TX 76511

TRIAL COUNSEL FOR APPELLANT:
Mr. Tim C. Mahler
Law Office of Tim C. Mahler
PO Box 266
Belton, TX 76513

APPELLATE COUNSEL FOR APPELLANT:
Gary E. Prust
Law Office of Gary E. Prust
1607 Nueces St.
Austin, TX 78701

TRIAL COUNSEL FOR APPELLEE:
Edward C. Vallejo
Stephanie Newell
Bell County District Attorney’s Office
1201 Huey Rd
PO Box 540
Belton, Texas 76513

APPELLATE COUNSEL FOR APPELLEE:
Bob Odom
Bell County District Attorney’s Office
1201 Huey Rd
PO Box 540
Belton, Texas 76513




                                     ii
                   TABLE OF CONTENTS

Identity of the Parties ………………………………………………………………ii

Table of Contents ………………………………………………………………… iii

Table of Authorities ……………………………………………………………… iv

Statement of the Case ………………………………………………………………1

Issue Presented …………………………………………………………………… 1

Statement of the Facts …………………………………………………………… 1

Summary of Possible Arguable Issues …………………………………………… 4

Prayer ……………………………………………………………………………… 5

Certificate of Service ……………………………………………………………… 6

Certificate of Compliance ………………………………………………………….6




                          iii
                         TABLE OF AUTHORITIES

Cases:

Anders v. California,
     386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 492 ………………………………1

Benson v. Ohio,
     488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300, 1978 ……………………… 1

High v. State,
      573 S.W.2d 807 (Tex. Crim. App. 1978) (no issues presented for review)…1

Tucker v. State,
     No. 05-01-01899-CR (Tex. App. – Dallas Oct. 30, 2002, no pet.) (not
     designated for publication) …………………………………………………5

Williams v. State,
      No. 06-10-00156-CR (Tex. App. – Texarkana Mar. 9, 2011, no pet.) (mem.
      op., not designated for publication) …………………………………………5

Winfrey v. State
      393 S.W.3d 763 (Tex. Crim. App. 2013) …………………………………. 4

Statutes:

United States Constitution
      Amendment VIII ……………………………………………………………5




                                      iv
                        STATEMENT OF THE CASE

   Appellant was indicted for aggravated assault with a deadly weapon, a second

degree felony. He pleaded not guilty and proceeded to trial by jury. The jury

convicted Appellant, and the same jury assessed his punishment at 13 years’

confinement. Appellant then timely filed a Notice of Appeal.

                               ISSUE PRESENTED
      Because this brief is being filed in accordance of the dictates of Anders

vs. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 492; Benson v. Ohio, 488

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300, 1978; and High v. State, 573 S.W.2d

807 (Tex. Crim. App. 1978), no issues are presented for review. A summary of

facts and a discussion of potentially arguable issues will be presented to justify

the conclusion of Appellant’s attorney that there are no arguable appeal issues

and therefore this appeal is frivolous.

                            STATEMENT OF FACTS

      Appellant was indicted for aggravated assault with a deadly weapon. There

were only a few pretrial hearings: Defense motion to raise bond, Aug. 28, 2013;

State’s motion for continuance, Apr. 3, 2014; and a Defense motion to withdraw as

counsel, May 6, 2014. A jury was selected May 5, 2014 and trial commenced the

following day.

      On May 28, 2012, Jessica Stone walked to the corner store at about 3:30 am



                                          1
to buy a pack of cigarettes. A car described as a green-ish Chrysler 300 approached

and offered her a ride to the store. The male from the vehicle went into the store

and bought a pack of Newport brand cigarettes for Ms. Stone. She described the

male as African American, tall, slim, and with gaps between his teeth. After that,

he offered her money for sex, to which she agreed.

      The duo drove until they found an empty apartment complex. They entered

one room which was in a state of disrepair with a water heater on the ground and

broken glass on the floor. Ms. Stone handed the male condom, and they began to

engage in intercourse. The male was unable to maintain an erection. Ms. Stone

then asked to get a cigarette out of his car. After a brief argument, he told her they

would just leave.

      As they prepared to go, the male demanded his money back from Ms. Stone

and struck her in the face four or five times. She remembers him pushing her into a

closet and her blood flying after being struck in the face. She was screaming “rape”

during the assault. The male then took all the money from her and told her that if

she followed him, he would shoot her.

      Elizabeth Contreras lived across the street, heard the screaming, and went

over to investigate. She found Ms. Stone. She took care of Ms. Stone immediately

following the assault, and Ms. Contreras’ brother then brought Ms. Stone to her

home. There, Doctor Omar Gonzales treated her. He testified Ms. Stone presented

                                          2
with moderate swelling and tenderness on the lower face, a black eye, swelling

around the nose, and a facture in her lower jaw. She was unable to close her jaw

properly upon admission to the hospital. Ms. Stone was placed in surgery the next

day to correct the alignment of the jaw, which required removing two molars. In

the surgery, they did not wire her jaw completely shut. Rather, they left a small

opening by which she could ingest liquid food. This was necessary because Ms.

Stone was twenty weeks pregnant at the time of the assault. The wires were

removed toward the end of July 2012. At the time of testimony, about two years

later, Ms. Stone still had no feeling on the outside of the left of her face and no

feeling in her teeth. She also felt some discomfort when chewing, two years after

the assault.

      The police were eventually notified and Ms. Stone came into the police

station for an interview on June 7, 2012. The police found surveillance video from

the convenience store the night of the assault, blood stains on the wall of the

apartment described by Ms. Stone, and a condom wrapper in that apartment. On

the recovered video, police located at about 3 am on the date of the assault, a male

matching the description provided by Ms. Stone buying a pack of Newport

cigarettes and driving a light green car. Ms. Stone was unable to pick out Mr.

Razor from a six-person photo lineup.

      A DNA analysis was later performed on the condom retrieved from the


                                         3
scene of the assault. The analysis revealed there was a one in 719.1 sextillion for

black people probability that someone not Mr. Razor provided the DNA sample

found on the condom.

      Appellant requested a charge for the lesser-included offense of assault

causing bodily injury, which was denied. After argument and deliberation, the jury

found Appellant guilty. The same jury heard punishment evidence about

Appellant’s criminal history. They also heard from law enforcement about his bad

character for being a truthful and law-abiding citizen. The jury also heard from

another prostitute Appellant had assaulted. After deliberation, the jury assessed his

punishment at 13 years’ confinement in the Texas Department of Criminal Justice.

This appeal follows.

                SUMMARY OF POSSIBLE ARGUABLE ISSUES


      An arguable issue Appellant may have is that the evidence of the serious

bodily injury alleged is insufficient to meet the legal definition. The legal standard

in a sufficiency review is whether a rational trier of fact could have found the

defendant guilty of all the element of the offense beyond a reasonable doubt, when

the evidence is considered in the light most favorable to the verdict. Winfrey v.

State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013) (citing Jackson v. Virginia,

443 U.S. 307 (1979)). The argument Appellant could make is that merely having



                                          4
one’s jaw wired does not result in the prolonged loss of use of a bodily function or

organ. However, this issue has been addressed in at least two other unpublished

opinions in two other district courts of appeal. Tucker v. State, No. 05-01-01899-

CR (Tex. App. – Dallas Oct. 30, 2002, no pet.) (not designated for publication)

(evidence of a fractured jaw, restriction to a liquid diet, and pain following the

assault is sufficient for finding serious bodily injury); Williams v. State, No. 06-10-

00156-CR (Tex. App. – Texarkana Mar. 9, 2011, no pet.) (mem. op., not

designated for publication) (finding serious bodily injury is supported by evidence

a person’s jaw was fractured and wired shut, he was limited to a liquid diet for four

to five months, and was still unable to eat hard foods a year after the assault).

      The second arguable issue appellant may have is that the sentence imposed

by the trial court is so high, given all mitigating circumstances in Appellant’s life,

the sentence violates the United States Constitution’s provision against cruel and

unusual punishment. UNITED STATES CONST., amend. VIII. However, because the

punishment assessed is within the range of punishment established by the

legislature, this argument will fail.

                                        PRAYER

      For all of the foregoing reasons, Appellant’s attorney, Gary E. Prust,

respectfully prays that this Honorable Court grant his Motion to Withdraw

submitted with this brief. Appellant’s attorney sent a letter to Appellant advising



                                           5
him of the consequences of filing an Anders brief, informing of him of counsel’s

request to withdraw, and providing him with a form motion so that is Appellant

wishes to pursue an appeal pro se, he may obtain a copy of the Appellate record.

                                            Respectfully submitted,

                                            /s/ Gary Prust

                                            Gary E. Prust
                                            State Bar No. 24056166
                                            1607 Nueces St.
                                            Austin, Texas 78701
                                            (512)469-0092
                                            Fax (512)469-9102
                                            gary@prustlaw.com
                                            Attorney for William Everette Razor

                          CERTIFICATE OF SERVICE

       In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure,
the undersigned attorney certifies that a true and correct copy of the foregoing
Motion was served upon Bob Odom via electronic service with efile.texas.gov on
this the 20th day of January, 2015.

                                                  /s/ Gary Prust
                                            Gary E. Prust


                       CERTIFICATE OF COMPLIANCE

     I hereby certify Appellant’s Brief contains only 1,100 words and is in
compliance with Tex. R. App. Proc. 9.4(2)(B).


                                                  /s/ Gary Prust
                                            Gary E. Prust



                                        6
                            CASE NO. 03-14-00379-CR

                THE THIRD SUPREME JUDICIAL DISTRICT
                 COURT OF APPEALS AT AUSTIN, TEXAS

WILLIAM EVERETTE RAZOR                  §
                                        §
v.                                      §
                                        §
THE STATE OF TEXAS                      §


                         CERTIFICATE OF COUNSEL

      In compliance with the requirements of Anders v. California, 386 U.S. 378

(1967), I, Gary Prust, counsel of record for Appellant, William Everette Razor, do

hereby verify in writing, to the Court that I have:

      1.     notified appellant that I filed a motion to withdraw as counsel with an

accompanying Anders brief, and provided a copy of each to appellant;

      2.     informed appellant of his right to file a pro se response identifying

what he believs to be the meritorious grounds to be raised in his appeal, should he

so desire;

      3.     advised appellant of his right to review the appellate record, should he

wish to do so, before filing that response;

      4.     explained the process for obtaining the appellat record and provided a

Motion for Pro Se Access to the Appellate Record lacking only appellant's signature

and the date, and provided the mailing address of this Court; and

      5.     informed appellant of his righ tto seek discretionary review pro se

should this Court declare his appeal frivolous.
                                    Respectfully submitted,

                                    /s/ Gary Prust

                                    Gary E. Prust
                                    SBN 24056166
                                    1607 Nueces St.
                                    Austin, Texas 78701
                                    (512)469-0092
                                    Fax (512)469-9102
                                    gary@prustlaw.com
                                    Attorney for William Everette Razor

                         CERTIFICATE OF SERVICE

       In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure,
the undersigned attorney certifies that a true and correct copy of the foregoing
Motion was served upon Bob Odom via electronic service with efile.texas.gov on
this the 20th day of January, 2015.

                                           /s/ Gary Prust
                                       Gary E. Prust
                                 CAUSE NO. 03-14-00379-CR

WILLIAM EVERETTE RAZOR                            §   IN THE COURT OF APPEALS
                                                  §
v.                                                §   3RD SUPREME JUDICIAL
                                                  §
THE STATE OF TEXAS                                §   DISTRICT AT AUSTIN


          MOTION FOR PRO SE ACCESS TO APPELLATE RECORD


        This Motion for Pro Se Access to the Appellate Record is brought forth by

William Everette Razor. Counsel for Appellant has filed an Anders brief stating

there are no frivolous issues to argue on appeal and has filed an accompanying

Motion to Withdraw. In support thereof, Appellant respectfully shows:

                                            I.

        An Anders brief has been filed in this matter. I still wish to pursue an appeal

on the matter.

                                            II.

        I request a copy of the entire Appellate Record in order to pursue my appeal

on my own.

        WHEREFORE, PREMISES CONSIDERED, Appellate prays that the Court

enter an Order granting Appellant access to the appellate record in Cause No. 03-

14-00379-CR, for Appellant, William Everette Razor.




William Everette Razor                                                                 1
Motion for Access to Appellate Record
                                               Respectfully submitted,



                                               William Everette Razor
                                               Pro Se
                                               TDCJ #01884586 Bartlett
                                               State Jail 1018 Arnold Dr.
                                               Bartlett, TX 76511


                                  CERTIFICATE OF SERVICE

      In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure,
the undersigned attorney certifies that a true and correct copy of the foregoing
Motion was served upon the Bell County District Attorney via US Mail to PO Box
540, Belton, Texas 76513.


                                               William Everette Razor




William Everette Razor                                                         2
Motion for Access to Appellate Record
