                                                                     ACCEPTED
                                                                 06-15-00157-CR
                                                      SIXTH COURT OF APPEALS
                                                            TEXARKANA, TEXAS
                                                          11/24/2015 12:12:03 PM
                                                                DEBBIE AUTREY
                                                                          CLERK

         NO. 06-15-00157-CR

  IN THE COURT OF APPEALS FOR THE               FILED IN
                                         6th COURT OF APPEALS
                                           TEXARKANA, TEXAS
 SIXTH APPELLATE DISTRICT OF       TEXAS11/24/2015 12:12:03 PM
                                             DEBBIE AUTREY
                                                 Clerk
        AT TEXARKANA, TEXAS


NICHOLAS EDWARD AYERS, Appellant

                   VS.

   THE STATE OF TEXAS, Appellee


    Trial Court Cause No. F14576 In
     the 276th Judicial District Court
          Marion County, Texas


     STATE’S APPELLATE BRIEF



                         Submitted by:


                         Angela Smoak
                         Marion County Attorney
                         102 West Austin, Room 201
                         Jefferson, Texas 75657
                         (903) 665-2611
                         Fax: (903) 665-3348
                         State Bar #00797466
                         angela.smoak@co.marion.tx.us
                    TABLE OF CONTENTS


TABLE OF CONTENTS …………………………………………………..          i

INDEX OF AUTHORITIES ………………………………………………          ii

STATEMENT OF THE CASE ……………………………………………          1

STATEMENT OF FACTS …………………………………………………           1

REPLY TO APPELLANT’S ISSUE NO. ONE ………………………..   2

    STATE’S PUNISHMENT ARGUMENT WAS NOT
    FUNDAMENTAL ERROR REQUIRING REVERSAL OF
    APPELLANT’S CONVICTION IN THAT THE PARTIES
    AGREED FOR THE COURT TO REVIEW THE
    COMPLAINED OF MATERIAL AND THE TRIAL COURT
    IS PRESUMED TO DISREGARD ANY IMPROPER
    ARGUMENT, IF ANY EXISTS.

REPLY TO APPELLANT’S ISSUE NO. TWO ………………………     4

    APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF
    COUNSEL AND THE CONVICTION SHOULD BE
    AFFIRMED.


CONCLUSION AND PRAYER …………………………………………..         6

CERTIFICATE OF SERVICE …………………………………………….        6

CERTIFICATE OF COMPLIANCE ………………………………………        6




                             i
                      INDEX OF AUTHORITIES


CASES:


Lopez v. State, 725 SW2d 487, 489
     (Tex. App. – Corpus Christi 1987, no pet.) ……………………..     3

Stone v. State, 751 SW2d 579, 582
     (Tex. App. – Houston [1st Dist] 1988, pet ref’d) ………………   5

Vaughn v. State, 888 SW2d 62, 72
     (Tex. App. – Houston [1st Dist] 1994, p.d.r. granted
     and affirmed, 931 SW2d 564, 1996) ……………………………...          4

Wilson v. State, 938 SW2d 57 (Tex. Crim. App. 2002) ……………..    3




                                  ii
                       STATEMENT OF THE CASE

      Appellant was tried in a bench trial on two cases of Indecency with a

Child, being the instant case and Appellate Cause No. 06-15-00156-CR, on

his plea of guilty to the indictment in each case. Appellant’s pleas of guilty

in each case were entered on August 5, 2015. [2RR 1-33] Evidence on the

pleas was heard on August 27, 2015. [3RR 1-58] The court found Appellant

guilty on each case and assessed an eighteen year sentence in the

Institutional Division of the Texas Department of Criminal Justice on each

case on August 27, 2015 to run concurrently. [3RR 65-66] Appellant gave

timely notice of appeal on September 23, 2013. [CR 98] Counsel was

appointed to represent Appellant on September 21, 2015. [CR 97]



                         STATEMENT OF FACTS

      The State called seven witnesses and Appellant did not testify but

called one witness.

      The Court, upon request by both parties, reviewed letters and

statements on file with the Court. [3RR 4]

      Martha Dykes and Kimberly Lara testified to the predicate for the

admission into evidence of a DVD in each of the two cases of the Child


                                     -1-
Advocacy Center interview of the child named in each indictment. [3RR 8-

13]

      Lauren Whitehead, employed at the jail with the Marion County

Sheriff’s Department, testified that Appellant had possession of contraband

in his cell block during his confinement in jail consisting of peach hooch which

smelled like alcohol, a Tramadol pill, paper clips which had been made into

needles, and ear phones with a yellow substance in them. [3RR 14-16]

      Vera Humphrey, Trelena Ives, Christi McWilliams, and Taylor Quinn

McWilliams testified to the circumstances surrounding the outcry by the child

victim in each of the two cases.

      Appellant called his step-father, Virgil T. Allen, who testified as a

character witness for him.



                REPLY TO APPELLANT’S ISSUE NO. ONE

                        APPELLANT’S ISSUE NO. ONE

      Is the State’s punishment argument outside the evidence
      fundamental error requiring reversal of Appellant’s conviction?

                               STATE’S REPLY

      STATE’S  PUNISHMENT   ARGUMENT   WAS  NOT
      FUNDAMENTAL ERROR REQUIRING REVERSAL OF
      APPELLANT’S CONVICTION IN THAT THE PARTIES

                                      -2-
      AGREED FOR THE COURT TO REVIEW THE COMPLAINED
      OF MATERIAL AND THE TRIAL COURT IS PRESUMED TO
      DISREGARD ANY IMPROPER ARGUMENT, IF ANY
      EXISTS.

                       ARGUMENT AND AUTHORITIES

      Appellant asserts that the State’s argument was outside the record and

based on a letter written by Appellant to the Court which was not offered or

admitted into evidence. Said letter is contained in the clerk’s record at CR

36 and was filed by Appellant one day prior to the punishment hearing in

this matter. At the same time, Appellant filed character statements from a

number of individuals, located in the clerk’s record at CR 67-89. Both parties

agreed for the Court to review the letter and statements. [3RR 4]

      To support his argument, Appellant cites Wilson v. State, 938 SW2d

57 (Tex. Crim. App. 2002). However, it should be noted that Wilson involves

a jury trial, not a bench trial, and specifically speaks to categories of proper

JURY argument. (emphasis added).

      In the matter before this Court, the trial court was determining

punishment subsequent to a plea of guilty. As such, the trial court was

capable of disregarding any improper argument, if any existed, and is

presumed to have done so. See Lopez v. State, 725 SW2d 487, 489 (Tex.

App. – Corpus Christi 1987, no pet.)

                                       -3-
     Furthermore, the argument was not improper as both parties agreed

on the record for the court to review the letters and statements referenced

by the State in its argument. [3RR 4]

     Therefore, the conviction should be affirmed.


              REPLY TO APPELLANT’S ISSUE NO. TWO

                      APPELLANT’S ISSUE NO. TWO

     Did Appellant receive effective assistance of counsel when
     counsel did not object to the argument made the basis of issue
     no. one in this case.

                             STATE’S REPLY

     APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF
     COUNSEL AND THE CONVICTION SHOULD BE AFFIRMED.

                     ARGUMENT AND AUTHORITIES

     The test for evaluating a claim of ineffective assistance of counsel at

the punishment phase of a noncapital offense is: (1) whether counsel was

reasonably likely to render effective assistance, and (2) whether counsel

reasonably rendered effective assistance. Vaughn v. State, 888 SW2d 62,

72 (Tex. App. – Houston [1st Dist] 1994, p.d.r. granted and affirmed, 931

SW2d 564, 1996) The attorney’s assistance is determined by the totality of

the representation. Id. Furthermore, the Appellant is required to not only


                                    -4-
show some act of ineffective assistance, but also some harm which resulted

from counsel’s alleged ineptitude. Id at 73, citing Stone v. State, 751 SW2d

579, 582 (Tex. App. – Houston [1st Dist] 1988, pet ref’d)

      Appellant complains of counsel’s failure to object to the State’s

argument which referenced the letter written by Appellant. However, it was

agreed by the parties for the Court to review the very same letter, filed by

Appellant with the Court one day prior to the punishment trial. [3RR 4, CR

36] The State would not have had access to such letter without the filing of

same and it was a conscious decision by Appellant to provide such letter to

the Court.

      The State indicated in argument that the letter was testimony without

risk of cross examination. [3RR 58] To avoid such risk is indeed a well

thought out trial strategy and not ineffective assistance.

      Since the trial in this matter was not a jury trial and the Court is

presumed to have disregarded any improper argument, then no harm can

be shown as a result of counsel’s failure to object. As such, the Appellant

fails to meet his burden and the conviction should be affirmed.




                                     -5-
                                    PRAYER

      Wherefore, upon the issues presented, the State prays that the

judgment of the trial court be in all things affirmed.

                                             Respectfully submitted,


                                             s/Angela Smoak_______
                                             Angela Smoak
                                             Marion County Attorney
                                             102 West Austin, Room 201
                                             Jefferson, Texas 75657
                                             (903) 665-2611
                                             Fax: (903) 665-3348
                                             State Bar #00797466
                                             angela.smoak@co.marion.tx.us




                        CERTIFICATE OF SERVICE

      I hereby certify that a copy of the State’s Appellant Brief was hand
delivered to counsel for Appellant, James P. Finstrom, on the 24th day of
November, 2015.

                                                  s/Angela Smoak

                      CERTIFICATE OF COMPLIANCE

      I hereby certify that Appellee’s Brief filed electronically on this the 25th
day of November, 2015 complies with Tex. R. App. P. 9.4(i)(2)(B) and
contains 0000 words.

                                                  s/Angela Smoak


                                       -6-
