                                                                                       PD-1474-14
                                                                      COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
                                                                   Transmitted 12/29/2014 2:20:30 PM
                                                                    Accepted 12/30/2014 10:14:38 AM
                                      PD-1474-14                                        ABEL ACOSTA
                                                                                                CLERK

                        IN THE COURT OF CRIMINAL APPEALS
                             OF THE STATE OF TEXAS



                                JIMMY DON CASEY,
                                     Appellant

                                           v.

                              THE STATE OF TEXAS,
                                     Appellee


On Petition for Discretionary Review from the Ninth Court of Appeals in No. 09-13-00367-
                 CR, affirming the conviction in Cause Number CR29444,
               From the 75th Judicial District Court of Liberty County, Texas



               APPELLANT’S PETITION FOR DISCRETIONARY REVIEW




                                                      CHIP B. LEWIS
                                                      TBN 00791107
                                                      Alicia Devoy O’Neill
                                                      TBN 24040801
                                                      1207 South Shepherd
                                                      Houston, Texas 77019
                                                      Phone: (713) 523-7878
                                                      Fax: (713) 523-7887
         December 30, 2014                            Email: chipblewis@aol.com

                                                      Counsel for Appellant
                                                      TABLE OF CONTENTS


TABLE OF CONTENTS ................................................................................................................. ii

INDEX OF AUTHORITIES .......................................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT………………………………...........1

STATEMENT OF THE CASE ....................................................................................................... 1

STATEMENT OF PROCEDURAL HISTORY .......................................................................... 1

GROUNDS FOR REVIEW ............................................................................................................. 2

Ground One: In failing to properly consider and address all necessary factors in determining
whether the trial court’s failure to properly charge the jury on unanimity resulted in harm in
the Appellant’s case, the Ninth Court of Appeals failed to meet the requisites of Texas Rule
of Appellate Procedure 47.1.

Ground Two: The opinion of the Ninth Court of Appeals in the Appellant’s case squarely
conflicts with the opinion of the Fourth Court of Appeals in Arrington v. State.

ARGUMENT ...................................................................................................................................... 2

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

CERTIFICATE OF FILING AND SERVICE .......................................................................... 14

CERTIFICATE OF COMPLIANCE.................................................................................15

APPENDIX……………………………………………………………………….............16

Texas Criminal Pattern Jury Charge; Continuous Sexual Abuse of a Child…………...........A1

Jimmy Don Casey v. State……………….………………………………………...........……A2




                                                                       ii
                                                   INDEX OF AUTHORITIES


Cases

Almanza v. State, 686 S.W. 157, 172 (Tex. Crim. App. 1984)(en banc).........................................4

Arrington v. State, 413 S.W.3d 106 (Tex.App.—San Antonio 2013).....................4, 5, 8, 9, 10, 12

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).........................................................3

Carsner v. State, 444 S.W.3d 1, 3 (Tex. Crim. App. 2014).................................................................3

Cosio v. State, 353 S.W.3d 766, 772 (Tex. Crim. App. 2011)............................................................4

Harris v. State, 522 S.W.2d 199, 202 (Tex.Crim.App.1975).............................................................3

Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996)..............................................................5

Kuhn v. State, 393 S.W.3d 519, 537 (Tex.App.-Austin 2013, pet. ref'd).........................................7

Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005)..............................................................4

Sinclair v. State, PD-0669-14, 2014 WL 5370044 (Tex. Crim. App. 2014).....................................3

Smith v. State, 397 S.W.3d 765 (Tex. App. San Antonio 2013)………………….......................4


Statutes

Tex. Pen. Code § 21.02 ................…………………………………..……………………...1,3

Tex. Pen. Code § 21.11........................................................................................................................ .1




                                                                       iii
                       STATEMENT REGARDING ORAL ARGUMENT

       The Appellant requests oral argument.



                                  STATEMENT OF THE CASE

       The Appellant, Jimmy Don Casey, was charged by indictment with one count of

continuous sexual abuse of a child, the indictment alleging two manners and means of

commission of the offense, and one count of indecency with a child. See Tex. Penal Code

Ann. § 21.02 & 21.11 (C.R. at 2). The Appellant entered a plea of “not guilty” and the case

was presented to a jury (4 R.R. at 11-13). On July 31, 2013, the jury found the Appellant

guilty as charged of continuous sexual abuse of a child. The jury sentenced him to thirty (30)

years in the Texas Department of Corrections – Institutional Division (C.R. at 45). No

motion for new trial was filed.


                         STATEMENT OF PROCEDURAL HISTORY

       On October 28, 2014, in a memorandum opinion, the Ninth Court of Appeals

affirmed the Appellant’s conviction. No motion for rehearing was filed. This Court granted

the Appellant’s Motion for Extension of Time to File Petition for Discretionary Review,

allowing him until December 31, 2014, to do so. On December 29, 2014, the original

petition was filed electronically and the original and eleven (11) copies of this petition were

timely filed by placing them in the United States mail, addressed to Clerk of the Court, Court

of Criminal Appeals, P.O. Box 12308, Austin, Texas 78711.




                                               1
                                   GROUNDS FOR REVIEW

GROUND ONE: IN FAILING TO PROPERLY CONSIDER AND ADDRESS ALL
NECESSARY FACTORS IN DETERMINING WHETHER THE TRIAL COURT’S
FAILURE TO PROPERLY CHARGE THE JURY ON UNANIMITY RESULTED IN
HARM IN THE APPELLANT’S CASE, THE NINTH COURT OF APPEALS FAILED
TO MEET THE REQUISITES OF TEXAS RULE OF APPELLATE PROCEDURE
47.1.


GROUND TWO: THE OPINION OF THE NINTH COURT OF APPEALS IN THE
APPELLANT’S CASE SQUARELY CONFLICTS WITH THE OPINION OF THE
FOURTH COURT OF APPEALS IN ARRINGTON V. STATE.



                        ARGUMENT FOR GROUNDS ONE AND TWO

        On direct appeal, the Appellant argued that a number of different errors in the trial

court’s jury charge resulted in egregious harm to him. Specifically, the Appellant argued that

the application paragraphs of the court’s charge failed to include the unanimity language

required by the continuous sexual abuse statute, that this error was compounded by

numerous other specific errors in the charge, and as a result the charge allowed for

conviction in a number of manners not authorized by law.

        In rejecting the Appellant’s claim on direct appeal, the Court of Appeals wholly failed

to conduct any analysis or come to any clear conclusion as to error for failing to include the

unanimity instruction in the charge. The Court of Appeals summarily analyzed the following

information and found that it weighed against a finding that the Appellant was “denied a fair

trial”: that the Court of Appeals had already determined the evidence to be legally sufficient

in an earlier ground, it believed the charge as a whole communicated the thirty (30) day
                                               2
requirement, and the State read the indictment to the jury, and the Defense reminded the

jury of the charged offense during argument.

Court of Appeals Must Conduct Meaningful Review of All Claims

       Regardless of which side is appealing a trial court’s ruling, the Court of Appeals must

issue a ruling that properly addresses all of the issues raised. In Carsner v. State, this Court

admonished an intermediate court for failing to so do: “(t)he court of appeals failed to

address every issue necessary to the disposition of the appeal,” and remanded the case to the

appellate court for further proceedings. Carsner v. State, 444 S.W.3d 1, 3 (Tex. Crim. App.

2014). Though unpublished, this Court also addressed this issue in Sinclair v. State, a per curiam

opinion, and remanded that case to the Appellate Court because it overruled the Appellant’s

issue on appeal without a meaningful discussion or citation to any authority. Sinclair v. State,

PD-0669-14, 2014 WL 5370044 (Tex. Crim. App. 2014).

Error and Harm Analysis in the Appellant’s Case

Error Analysis

       In analyzing a jury charge issue, an appellate court’s first duty is to decide whether

error exists. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Error occurs when

a jury charge fails to directly apply the law to the facts. Harris v. State, 522 S.W.2d 199, 202

(Tex.Crim.App.1975). The unanimity requirements set forth in section 21.02(d) must be

included in the application paragraph of a continuous sexual abuse charge in order to

distinctly set forth the law applicable to the case in the jury charge 1 as required by the Texas



1The Texas Criminal Pattern Jury Charge for continuous sexual abuse of a child which contains an
example of an application paragraph that properly informs a jury of what facts, if found by the jury,
                                                 3
Code of Criminal Procedure. Smith v. State, 397 S.W.3d 765 (Tex. App. San Antonio 2013).

It is error to not include the unanimity language in the application paragraph and the harm

analysis will look at the clarity of the rest of the paragraph (or in this case, paragraphs). Smith

at 771-772.

       Though the Ninth Court of Appeals did not make any explicit conclusion as to error

in this case, the Fourth Court of Appeals relied on this Court’s precedent when it conducted

a similar analysis. That Court found that where evidence of multiple instances of criminal

acts constituting the offenses were presented at trial, as they were in the Appellant’s case, an

instruction on jury unanimity is required. Arrington v. State, 413 S.W.3d 106 (Tex.App.—San

Antonio 2013); citing Cosio v. State, 353 S.W.3d 766, 772 (Tex. Crim. App. 2011). Just as in

Arrington and Cosio, the charge in this case contained error because it permitted a non-

unanimous verdict based on the evidence presented in this case. Id.

Harm Analysis

       If error exists, the court then analyzes that error for harm. Id. If not objected to,

appellate courts examine the record for egregious harm under the Almanza standard.

Almanza v. State, 686 S.W. 157, 172 (Tex. Crim. App. 1984)(en banc). Errors that result in

egregious harm are those that affect “the very basis of the case,” “deprive the defendant of a

valuable right,” or “vitally affect a defensive theory.” Ngo v. State, 175 S.W.3d 738, 750 (Tex.

Crim. App. 2005). To determine whether a defendant has sustained egregious harm an

appellate court should consider: (1) the entire charge; (2) the state of the evidence, including



would constitute proof of the elements of that offense is attached to this brief as Appendix A-1.
Texas Criminal Pattern Jury Charges (2011).
                                                4
contested issues; (3) arguments of counsel; and (4) any other relevant information. Hutch v.

State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996).

        In examining the factors for determining egregious harm in the Appellant’s case, the

Court of Appeals wholly failed to consider the factors that the Court in Arrington considered

to be a vital part of its harm analysis, as well as a number of the factors that the Appellant

raised in his appellate brief. Importantly, in Arrington the Court found that where there was

no unanimity instruction, as in the Appellant’s case, that the charge permitted a non-

unanimous verdict based on the extraneous evidence presented and that the magnitude of this

particular error in and of itself “weighs in favor of finding egregious harm.” Arrington at 112 (emphasis

added). The Appellate Court here did not analyze the error at all, let alone count the

magnitude of the error as a factor in its harm analysis. A true analysis of the error itself along

with all of the other factors in light of Arrington, and the Appellant’s unaddressed claims

from his appeal, establish egregious harm in this case.

        (1) the entire charge;

        When the Appellate Court in Arrington analyzed the “entire jury charge” in light of the

unanimity error, they focused on the lack of the unanimity instruction itself and the fact that

the only mention in the charge of unanimity was included in the “boilerplate” language in

the foreman instruction section of the charge. Id. The charge in the Appellant’s case is

exactly the same as the charge in Arrington, in that it contains only one mention of the word

unanimous and it is in the same boilerplate language relating to selecting a foreman. The

Ninth Court of Appeals makes no mention of this fact in their opinion and failed to use it in

consideration of this factor.


                                                   5
       Further, as asserted in the Appellant’s brief but not addressed by the Court of

Appeals, the application paragraphs failed to include the specific unanimity language

required by the continuous sexual abuse statute. The harm in the Appellant’s case was

compounded by the introduction of a large amount of extraneous testimony and an

application paragraph that was broken into three confusing separate paragraphs set out and

worded exactly as follows:

       “Charging paragraph. Now, bearing in mind the foregoing instructions if you find
from the evidence beyond a reasonable doubt that on or about the 1st day of December,
2007 through the 1st day of June, 2009 in Liberty County, Texas the defendant, Jimmy Don
Casey, did then and there with intent to arouse or gratify the sexual desires of the defendant
or Kayla Wells intentionally or knowingly engage in sexual conduct with Kayla Wells by
touching the genitals of Kayla Wells, a child younger than 14 years;

       And/or if you find from the evidence beyond a reasonable doubt that from on or
about the 1st day of December, 2007 through the 1st day of June, 2009 in Liberty County,
Texas the defendant, Jimmy Don Casey, did then and there with intent to arouse or gratify
the sexual desires of the defendant and/or Kayla Wells intentionally or knowingly cause
Kayla Wells, a child younger than 14 years of age, to engage in sexual conduct by causing the
said Kayla Wells to touch the genitals of the defendant, Jimmy Don Casey;

        If you find from the evidence beyond a reasonable doubt that during a period that is
30 days or more—30 or more days in duration Jimmy Don Casey committed two or more
acts of sexual abuse, you will find the defendant guilty of continuous sexual abuse of a child
as charged in the indictment.”

       The jury was simply not properly instructed on unanimity. This is compounded by a

third paragraph that allowed for non-unanimous conviction without requiring the jury to

find that K.W. was the complainant, that the sexual abuse incidents both happened within

Liberty County, Texas, that the Complainant was under 14 years of age at the time of both

instances of sexual abuse, that the Appellant was at least 17 years old at the time of both

instances of sexual abuse, or that the acts of sexual abuse specifically alleged in the



                                              6
indictment were the ones that had to be found in order to convict as opposed to the other

uncharged behavior testified to by the Complainant.

       The charge also included confusing definitions of “sexual abuse” referring to

Indecency with a Child where “child” is specifically defined as a person under 17 years of

age and not the person younger than 14 years of age required by the continuous sexual abuse

language. The charge also contained a definition for Indecency by Exposure and defines it

as “sexual abuse,” even though no Indecency by Exposure was alleged in the indictment but

was alleged as extraneous information by the State during trial.

       Importantly, the jury charge in this case merely directed the jury that they must

consider any abuse that happened before indictment. No part of the jury charge informed

the jury that they could only consider allegations of abuse that occurred after the enactment

of the statute on September 1, 2007. It is further error to include the instruction that the

trial court did in the Appellant’s case regarding the timing of the incidents of abuse only

needing to precede indictment and be within the statute of limitations because no one can be

convicted of continuous sexual abuse of a child for behavior that occurred before the statute

was enacted on September 1, 2007. Kuhn v. State, 393 S.W.3d 519, 537 (Tex.App.-Austin

2013, pet. ref'd). The court in Kuhn found that there was not egregious harm to the

defendant in part because the defendant himself created a timeline for abuse that clearly

provided the jury with a reasonable basis to believe that the abuse occurred after the statute

was enacted and the application paragraph contained a correct statement of the law. Id at

524-531. Here the Appellant made no statements, the Complainant gave only confused and

uncertain testimony, and the State argued the long history of the abuse in such a way as to


                                               7
leave the jury with the impression that they were free to non-unanimously convict for any

abuse that they believed happened before the statute was enacted on September 1, 2007.

       The lack of any meaningful unanimity instruction is a factor that weighs in favor of a

finding of egregious harm, it was compounded by the other errors in the charge in the

Appellant’s case, and should have been considered by the Appellate Court.

       (2) the state of the evidence, including contested issues;

       When the Appellate Court in Arrington analyzed this factor, it focused on three areas

of evidence common in sexual assault-type of cases. First, in that case and in the Appellant’s

case, there was no DNA or forensic evidence and no medical injuries consistent with the

sexually assaultive claims of the Complainant. Arrington at 113; (4 R.R. at 67-70). Second,

evidence that the Complainant did not make immediate full outcry of her claims of abuse

against the Defendant in that case. Similarly, in this case the Complainant’s claims were

delayed by an expanse of time and only made at the insistence of her family members. Id.; (4

R.R. at 21-22, 80-85). Third, in Arrington, improper bolstering of the Complainant’s

testimony was permitted. Id. In the Appellant’s case, inadmissible evidence was repeatedly

testified to regarding limined out alleged sexual extraneous offenses against other family

members (4 R.R. at 6-8, 94). This evidence is even more harmful than the plain bolstering

in Arrington. The Ninth Court of Appeals acknowledged that the State’s witnesses repeatedly

testified about these extraneous accusations in violation of the trial court’s ruling and the

Texas Rules of Evidence but did not consider it in any manner in their evaluation of the

harm element in the Appellant’s jury charge error claim.



                                               8
       Further, as the Appellant pointed out on direct appeal, the errors in the charge are

greatly exacerbated by the state of the evidence. Specifically, by the combination of confused

and wholly unclear testimony by the Complainant regarding many extraneous offenses and

where any of the incidents occurred, whether they occurred after September 1, 2007, when

the incidents occurred in time, when the incidents occurred in relation to one another, or

how old the Complainant was when any specific incident occurred. This factor weighs in

favor of a finding of egregious harm and should have been meaningfully considered by the

Appellate Court.

       (3) arguments of counsel;

       The Defense’s closing argument at trial focused on the defense that the Appellant

was innocent.      The State’s closing argument referred to the alleged abuse generally,

emphasizing the long history of the alleged abuse, and did not mention the necessity of

finding the elements as alleged in the indictment.        Neither the State nor the Defense

explained the unanimity provision of the continuous sexual abuse law, or reinforced that the

two alleged acts of sexual abuse must have happened in a period greater than 30 days in

duration. When the Appellate Court in Arrington analyzed this factor, it focused on the fact

that during argument in that case, as in this case, neither the State nor the Defense

mentioned unanimity but neither argued that the jury did not have to be unanimous either.

Arrington at 116. In the Appellant’s case, unlike in Arrington where this factor did not weigh in

favor of a finding of egregious harm, the State argued that the Complainant’s testimony was

enough to convict and emphasized her specific testimony regarding abuse when she was




                                               9
“five or six years old” which was many years outside of the period that would permit

conviction (V R.R. at 42-43).

       This is exacerbated by the fact that in the Appellant’s case neither side nor the Court

ever informed the jury that no conviction could be based on abuse that the jury did not

believe occurred after September 1, 2007, and neither directly applied to the law to the facts

of the case. Instead the jury was only instructed that the offenses only had to have occurred

before the indictment. This factor weighs in favor of a finding of egregious harm and should

have been meaningfully considered by the Appellate Court.

       (4) any other relevant information

       As in Arrington, in the Appellant’s case there was a large amount of extraneous

offense evidence offered by the Complainant during her testimony that did not refer to the

allegations in the indictment and some impermissible testimony about extraneousness to

other family members. This only served to further confuse the jury when they were not

improperly instructed. There was no information that would have kept the jurors from

feeling certain that they were rightly executing their oaths by reaching the below

impermissible non-unanimous verdicts.

       These three application paragraphs would have authorized guilty verdicts in the

following scenarios, none of them in violation of the continuous sexual abuse statute:

           That Appellant was guilty even if the jury did not agree unanimously that the

              State proved beyond a reasonable doubt that Appellant, during a period that is

              30 days or more in duration, committed two or more of the acts of sexual

              abuse alleged in the indictment.


                                             10
 That Appellant was guilty even if the jury did not unanimously believe that the

   State proved beyond a reasonable doubt that the Appellant was over 17 years

   of age at the time that he touched K.W.’s genitals;

 That Appellant was guilty even if the jury did not unanimously believe that the

   State proved beyond a reasonable doubt that the Appellant was over 17 years

   of age at the time that the Appellant caused K.W. to touch his genitals;

 That Appellant was guilty even if the jury believed that the State proved

   beyond a reasonable doubt that Appellant touched the genitals of K.W. twice

   but did not believe beyond a reasonable doubt that it was during a period 30

   or more days in duration;

 That Appellant was guilty even if the jury believed that the State proved

   beyond a reasonable doubt that Appellant caused K.W. to touch his genitals

   twice but did not believe beyond a reasonable doubt that it was during a

   period 30 or more days in duration;

 That Appellant was guilty even if the jury did not unanimously believe that the

   State proved that Appellant touched the genitals of K.W. once and caused

   K.W. to touch his genitals once but did not believe beyond a reasonable doubt

   that it was during a period 30 or more day in duration;

 That Appellant was guilty even if the jury did not unanimously believe that the

   State proved beyond a reasonable doubt that K.W. was the person against

   whom Appellant committed the acts of sexual abuse;



                                  11
 That Appellant was guilty even if the jury did not unanimously believe that the

   State proved beyond a reasonable doubt that two acts of sexual abuse

   happened in Liberty County, Texas;

 That Appellant was guilty even if the jury did not unanimously believe that the

   State proved beyond a reasonable doubt that whoever the complainant was

   the complainant was not under 14 at the time of both instances of sexual

   abuse;

 That Appellant was guilty even if the jury did not unanimously believe that the

   State proved beyond a reasonable doubt that (regardless of who the

   complainant was) that the Appellant was over 17 years of age at the time of

   both instances of sexual abuse;

 That Appellant was guilty even if the jury did not unanimously believe that the

   State proved beyond a reasonable doubt either of the acts of sexual abuse

   specifically alleged in the indictment and instead found some other “two or

   more acts of sexual abuse,” thereby allowing the jury to base its guilty verdict

   on the extraneous offenses of sexual abuse offered by the State rather than

   testimony regarding the indicted offense;

 That Appellant was guilty even if the jury did not unanimously believe that the

   State proved beyond a reasonable doubt that both of the acts of sexual abuse

   specifically alleged in the indictment occurred after September 1, 2007 and

   while K.W. was under 14 years of age; and



                                     12
           Countless permutations of the above verdicts made by each member of a non-

              unanimous jury.

       This factor, and all of the above factors, weigh heavily in favor of a finding of

egregious harm and should have been meaningfully considered by the Appellate Court in the

Appellant’s case as they were by the Appellate Court in the Arrington case.




                                          PRAYER

       For the reasons stated above, the Appellant asks this Court to grant his petition,

reverse the judgment of the Court of Appeals and remand to that court with the instruction

to conduct a harm analysis.

                                                   Respectfully submitted,



                                                          /s/ Chip Lewis
                                                   CHIP B. LEWIS
                                                   TBN 00791107
                                                   Alicia Devoy O’Neill
                                                   TBN 24040801
                                                   1207 South Shepherd
                                                   Houston, Texas 77019
                                                   Phone: (713) 523-7878
                                                   Fax: (713) 523-7887
                                                   Email: chipblewis@aol.com




                                              13
                          CERTIFICATE OF FILING AND SERVICE



       I hereby certify that on December 29, 2014:

       1)     the original of the foregoing Appellant’s Petition for Discretionary Review was

electronically filed and the original and eleven (11) copies were filed with the Clerk of the

Court of Criminal Appeals, P.O. Box 12308, Austin, Texas 78711, by placing such

documents in the United States Mail, addressed as indicated;

       2)     a true and correct copy of the foregoing petition was delivered to the appellate

division of the Liberty County District Attorney’s Office by placing such documents in the

United States Mail addressed to 1923 Sam Houston, Suite 112, Liberty, Texas 77575;

       3)     a true and correct copy of the foregoing petition was served on the State

Prosecuting Attorney, by mailing a copy of the petition to the State Prosecuting Attorney.



                                                        /s/ Chip Lewis
                                                  Chip B. Lewis




                                             14
                           CERTIFICATE OF COMPLIANCE



      Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this petition

complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i):

1.    Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this

petition contains 3,306 words printed in a proportionally spaced typeface.

2.    This petition is printed in a proportionally spaced typeface using Garamond 14

point font in text and Garamond 12 point font in footnotes.

3.     Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this petition and imposing sanctions

against the person who signed it.


                                                     /s/ Chip Lewis
                                               Chip B. Lewis




                                          15
                                     APPENDIX



Texas Criminal Pattern Jury Charge; Continuous Sexual Abuse of a Child…………...........A1

Jimmy Don Casey v. State……………….………………………………………...........……A2




                                          16
