                 IN THE COURT OF APPEALS
            SIXTH JUDICIAL DISTRICT OF TEXAS
                                                       FILED IN
                                                6th COURT OF APPEALS
                       AT TEXARKANA               TEXARKANA, TEXAS
                                                10/7/2016 9:59:00 AM
                                                    DEBBIE AUTREY
                                                        Clerk
LAROYCE DEMOND ALLEN           §
   Appellant                   §
                               §
VS.                            §   No. 06-16-00142-CR
                               §
STATE OF TEXAS                 §
   Appellee                    §

                       ANDERS BRIEF


APPEALED FROM CAUSE NO. CR 15-164 IN THE FOURTH JUDICIAL
         DISTRICT COURT OF RUSK COUNTY, TEXAS




           ORAL ARGUMENT IS NOT REQUESTED




                      CLAY THOMAS, P.C.
                 ATTORNEY FOR APPELLANT
                  3548 NE STALLINGS DRIVE
                 NACOGDOCHES, TEXAS 75965
                          936.715.7144
                   877.899.0382 (FACSIMILE)
                 STATE OF TEXAS BAR CARD
                        NUMBER 24088520
                 clay.thomas@claythomaspc.com
                    THE PARTIES INVOLVED


MR. LAROYCE DEMOND ALLEN      APPELLANT
TDCJ No. 02078253
Joe F. Gurney Unit
1385 FM 3328
Palestine, Texas 75803

MR. CLAY DEAN THOMAS          ATTORNEY FOR APPELLANT
3548 NE Stallings Drive       (APPEAL)
Nacogdoches, Texas 75965

MR. JEFFREY SANDERS           ATTORNEY FOR APPELLANT
120 South Broadway            (TRIAL)
Suite 112
Tyler, Texas 75702

MR. MICHAEL ELWOOD            DISTRICT ATTORNEY
JIMERSON                      RUSK COUNTY, TEXAS
115 North Main Street
Henderson, Texas 75652

MR. ZACHARY JAMES WAVRUSA     ASSISTANT DISTRICT ATTORNEY
115 North Main Street         RUSK COUNTY, TEXAS
Henderson, Texas 75652

JUDGE JAMES CLAY GOSSETT      JUDGE PRESIDING
115 North Main Street         4 JUDICIAL DISTRICT COURT OF
Henderson, Texas 75652        RUSK COUNTY, TEXAS
Contents

JURISDICTION OF THE COURT .................................................................... 1

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

STATEMENT OF FACTS .................................................................................. 2

ISSUES PRESENTED FOR REVIEW .............................................................. 5

  ARGUMENT AND AUTHORITIES............................................................... 6

GROUND OF ERROR ........................................................................................ 7

ISSUES PRESENTED FOR REVIEW .............................................................. 7

  1. The Indictment Is Sufficient As A Matter Of Law ................................... 7

  2. There Were No Improper Adverse Pretrial Rulings Affecting The

  Course Of The Trial. ........................................................................................ 8

  3. There Were No Adverse Improper Adverse Rulings During The Trial

  On Objections Or Motions Had Been Improperly Made Such That They

  Created An Adverse Effect On The Result Of The Trial. ............................ 11

  4. There Were No Adverse Improper Rulings On Post-Trial Motions...... 14

  5. Jury Selection Was Properly Conducted In Order That A Fair And

  Impartial Jury Was Obtained. ....................................................................... 14



                                                       i
  6. The Jury Instructions Were Properly Formulated. ................................ 14

  7. The Evidence Was Sufficiently Adduced At Trial To The Offense Upon

  Which The Conviction Was Based................................................................. 16

  8. There Was No Failure By Trial Counsel To Object To Fundamental

  Error. ............................................................................................................... 18

  9. There Were No Improper Adverse Rulings During The Punishment

  Phase On Objections Or Motions. ................................................................. 18

  10.      The Sentence Was In The Applicable Range Of Punishment. ............ 19

  11.      The Written Judgment Accurately Reflects The Sentence Imposed

  And Credit Was Properly Applied. ............................................................... 19

  12.      Based Upon The Record, Appellant Did Not Receive Ineffective

  Assistance Of Trial Counsel. .......................................................................... 19

CONCLUSION .................................................................................................. 20

PRAYER ............................................................................................................ 20

CERTIFICATE OF COMPLIANCE ............................................................... 21

CERTIFICATE OF SERVICE ......................................................................... 21




                                                            ii
Cases

Hernandez v, State, 726 S.W.2d 53 (Tex. Crim. App. 1986) ..................................20

Holland v. State, 761 S.W.2d 307 (Tex. Crim. App. 1988) ....................................20

Meza v. State of Texas, 206 S.W.3d 684 (Tex. Crim. App. 2006) ............................6

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) 20,

  21

Wright v. State, 28 S.W.3d 526 (Tex. Crim. App. 2000) ....................................8, 16

Statutes

Tex. Code Crim. Proc. Ann. art. 12.01 ......................................................................8

Tex. Code Crim. Proc. Ann. art. 21.02 ......................................................................7

Tex. Code Crim. Proc. Ann. art. 36.14 ....................................................................14

Tex. Penal Code Ann. § 12.32(a).............................................................................18

Tex. Penal Code Ann. § 12.32(b) ............................................................................18

Tex. Penal Code Ann. § 22.011 ...............................................................................18

Tex. Penal Code Ann. § 22.011(a)(2) ........................................................................8

Rules

Tex. R. App. P. 22......................................................................................................1

                                                           iii
Tex. R. App. P. 38......................................................................................................5

Tex. R. App. P. 9.4(i)(1) ..........................................................................................21

Constitutional Provisions

Tex. Const. art. V, § 6 ................................................................................................1




                                                           iv
                          IN THE COURT OF APPEALS
                      SIXTH JUDICIAL DISTRICT OF TEXAS
                                AT TEXARKANA


LAROYCE DEMOND ALLEN                         §
   Appellant                                 §
                                             §
VS.                                          §   No. 06-16-00142-CR
                                             §
STATE OF TEXAS                               §
   Appellee                                  §

TO THE HONORABLE COURT OF APPEALS

                                 ANDERS BRIEF


                        JURISDICTION OF THE COURT


      This is an Anders appeal from a final judgment of conviction and sentence

entered on June 24, 2016 by the 4th Judicial District Court of Rusk County, Texas.

Appellant was found guilty in a jury trial for Sexual Assault of a Child. (4 R.R. 99)

The Court of Appeals has jurisdiction over this matter in accordance with Rule 22

of the Texas Rules of Appellate Procedure and Article 5, § 6 of the Constitution of

the State of Texas.


                          STATEMENT OF THE CASE

      The Appellant was charged by indictment with Sexual Assault of a Child. (3

R.R. 7) (1 C.R. 5) The Appellant entered a plea of not guilty (3 R.R. 8) and a jury

                                         1
trial was had beginning on June 23, 2016. On June 24, 2016, the jury returned a

verdict of guilty. (4 R.R. 99) On that day, the trial then proceeded into the

punishment phase before the jury. The jury assessed punishment to be twenty years

in the Texas Department of Criminal Justice – Institutional Division. (4 R.R. 125)

The trial court certified that the Appellant had the right to appeal. (1 C.R. 98)

Appellant timely filed notice of appeal on 20 July 2016. (1 C.R. 101) The record of

the case consists of five volumes of Transcript and one volume provided by the

District Clerk. Reference to the Transcript will be (Volume Number, R.R., Page

Number) For example, the 1st Volume page 30 will be referenced (1 R.R. 30).

Clerk’s Record will be referenced likewise by C.R.


                           STATEMENT OF FACTS

      In the early morning hours on June 10, 2015, Herbert Adams discovered that

his granddaughter, XXXX, was not asleep in her bed in the home he shared with his

daughter Petrice Adams, her husband, Laroyce Allen, and Petrice’s younger

daughter, H. (3 R.R. 72) Upon discovery of the missing grandchild, Herbert Adams

awakened Petrice Adams and Laroyce Allen to inform them that XXXX was not in

the residence. After a brief search of the home and the grounds, the parties

discovered a Jeep owned by Herbert Adams was missing. (3 R.R. 72)

      Throughout the early morning hours, a search was conducted for XXXX.

Petrice Adams and Laroyce Allen located the Jeep soon thereafter and lay in wait

                                         2
for the return of XXXX. (4 R.R. 23) After several hours, Petrice Adams was taken

home by her husband so that she could prepare her younger child for school. Upon

Laroyce Adams’ return to the earlier location of the Jeep, he discovered that it had

been moved. (4 R.R. 24) Retrieving his wife, they both searched neighborhoods and

contacted family friends in an attempt to find XXXX.

      During this period, they discovered the home of Davonte Wilson, a young

man whose parents worked at night. The couple knocked on the door of the home

but were unable to receive a response. Soon thereafter, neighborhood boys

volunteered to contact XXXX and Mr. Wilson. Subsequently, XXXX left the Wilson

home and entered the vehicle with the couple. (4 R.R. 25)

      Upon return to the home of Herbert Adams, Laroyce Allen began to strip the

closet and drawers of XXXX’s room, dumping the contents of those on the floor,

telling her to clean it up as punishment. (4 R.R. 27) In the trial, there was conflicting

testimony as to what party (whether Herbert Adams or Petrice Adams) was first told

the reasons for XXXX’s behavior, but all testimony indicated XXXX had accused

Laroyce Allen of sexually assaulting his stepdaughter. (3 R.R. 74) (3 R.R. 178-179)

At some instance on that afternoon, Herbert Adams was given a letter that XXXX

claimed to have been given to her by Laroyce Allen. (3 R.R. 75) (5 R.R. State’s

Exhibit 4) The letter was purported to describe past sexual acts between Laroyce

Allen and XXXX and suggested a quid pro quo arrangement whereby Laroyce Allen


                                           3
would continue financial remuneration for sexual acts. (3 R.R. 106) (3 R.R. 138)

Upon receipt of the letter, he asked Petrice Adams for any other writings from her

husband to use as exemplars.

      Complaint was made to law enforcement authorities and the matter was

investigated by the Rusk County Sheriff’s Department. During the investigation and

search of the bedroom closet of Laroyce Allen, a yellow notebook filled with

writings written by Laroyce to his wife was discovered. (5 R.R. State’s Exhibit 5)

These were taken into evidence. Contemporaneous to the search, a purported

contract for sexual services was also found among the belongings in the Allen’s

bedroom. (3 R.R. 53) (3 R.R. 111-114) (5 R.R. State’s Exhibit 6)

      Shortly thereafter, XXXX was examined by SANE Nurse Susan Camazine.

      On June 11, 2015, an affidavit regarding the sexual assault was sworn by Ben

Reynolds, the lead investigator. On June 12, 2015, a warrant was issued for the arrest

of Laroyce Demond Allen for Sexual Assault. On August 4, 2015, Laroyce Demond

Allen was indicted for the sexual assault of a child younger than 17 years of age. (1

C.R. 5)

      On the 28th day of August, 2015, the Honorable R. Darryll Bennett was

appointed as counsel for Mr. Allen. (1 C.R. 17) On August 31, 2015, Mr. Bennett’s

counsel was discharged and the honorable Joe Shumate was appointed as Mr.

Allen’s counsel. (1 C.R. 21) On September 3, 2015, Mr. Shumate made a Motion to


                                          4
Withdraw as Counsel citing a conflict of interest with another case. (1 C.R. 22-23)

On September 8, 2015, the court ordered a Substitution of Counsel and the

Honorable Jeff Sanders was appointed as Mr. Allen’s counsel. (1 C.R. 24)


                     ISSUES PRESENTED FOR REVIEW


   The following issues are presented for appellate review [see Texas R. App. P.

38].The undersigned counsel’s review of the record and law reveals no matters of

reversible error or issues that can be advanced in good faith. Thus, the questions

raised in this Anders appeal pertain to the following issues:

   (1) Whether the indictment was sufficient as a matter of law.

   (2) Whether any adverse pretrial rulings affecting the course of the trial were

      improper.

   (3) Whether any adverse rulings during the trial on objections or motions had

      been improperly made such that they created an adverse effect on the result of

      the trial.

   (4) Whether there were any adverse rulings on post-trial motions.

   (5) Whether jury selection was properly conducted in order that a fair and

      impartial jury may have been obtained.

   (6) Whether jury instructions were properly formulated.




                                          5
   (7) Whether the evidence was sufficiently adduced at trial to the offense upon

      which the conviction was based.

   (8) Whether there was any failure by trial counsel to object to fundamental error.

   (9) Whether there were any improper adverse rulings during the punishment

      phase on objections or motions.

   (10)      Whether the sentence was in the applicable range of punishment.

   (11)      Whether the written judgment accurately reflects the sentence imposed

      and whether any credit was properly applied.

   (12)      Based upon the record, whether Appellant received ineffective

      assistance of trial counsel.

                      ARGUMENT AND AUTHORITIES

      This brief is an Anders brief in support of appellate counsel’s motion to

withdraw. In compliance with the Anders procedure, as set forth in Meza v. State of

Texas, 206 S.W.3d 684 (Tex. Crim. App. 2006), appellate counsel has filed the

following:

          1. Motion to Withdraw.

          2. Notice of filing of Anders brief, which includes a copy of the letter to

             the Appellant informing him that:

                a. Counsel has provided him with a copy of the brief.

                b. Counsel has informed Appellant the right to review the record.

                                          6
             c. Counsel has informed Appellant of the right to file a brief or

                other response in his own behalf, and

             d. Counsel has informed Appellant of the right to pursue a petition

                for discretionary review in the Texas Court of Criminal Appeals,

                should the court of appeals deny him relief on appeal.


                           GROUND OF ERROR


NO ARGUABLE ISSUES OF REVERSIBLE ERROR EXIST IN THE CASE


                  ISSUES PRESENTED FOR REVIEW

1. The Indictment Is Sufficient As A Matter Of Law

   Tex. Code Crim. Proc. Ann. art. 21.02 codifies the requisites for an indictment

in the State of Texas. The indictment in this matter states it is “In the name and

authority of The State of Texas”; that the Grand Jurors are empaneled in Rusk

County, Texas which is the same county in which the District Court sits; and

appears to be the act of that grand jury in Rusk County. The indictment identified

the Defendant by his proper name, Laroyce Demond Allen and alleges that the

offense occurred in Rusk County, Texas. The indictment alleges the offense took

place on or about the 15th day of June, 2015, a date anterior to the indictment and

not so remote that the prosecution of the offense would be barred by limitation.

The indictment states that Laroyce Demond Allen did intentionally and


                                       7
   knowingly cause the penetration of the mouth of Jane Smith (pseudonym), a child

   younger than 17 years of age, by his sexual organ. Clearly the language is worded

   in plain and intelligible words. The indictment concludes with “against the peace

   and dignity of the State” and is signed by the Foreman of the Grand Jury. (1 C.R.

   5)

        Although the Appellant was already in custody on June 15, 2015, “[T]he ‘on

   or about’ language of an indictment allows the state to prove a date other than the

   one alleged as long as the date proven is anterior to the presentment of the

   indictment and within the statutory limitation period. Wright v. State, 28 S.W.3d

   526, 532 (Tex. Crim. App. 2000). There is no limitation for a sexual assault under

   Section 22.011(a)(2) of the Tex. Penal Code Ann. See Tex. Code Crim. Proc.

   Ann. art. 12.01.

        Thus, there exists no deficiency in the form or content of the indictment in

   this matter.

   2. There Were No Improper Adverse Pretrial Rulings Affecting The
      Course Of The Trial.

   During voir dire, Appellant’s counsel attempted to elicit juror expectations as to

what type of evidence they may anticipate hearing in a trial. The Prosecutor objected

and a bench conference was had:


        MR. JIMERSON: I object. These are commitment questions. They're a little
        bit unorthodox, because he's soliciting from the juror what they're going to

                                          8
      demand, but he's committing them to the facts. We're going to have to have
      DNA to get a conviction and these other things. It's just an outstandingly
      clever commitment question is the State's position. We object to it.

      MR. SANDERS: I don't think -- I'm just asking what they might expect to
      hear.

      THE COURT: I'll sustain the objection on that. (2 R.R. 74-75)

      While an attorney cannot attempt to bind or commit a prospective juror to a

verdict based on a hypothetical set of facts, this abstract matter though easily stated,

has been problematic in its application. Case law has not always been clear and

consistent but a few common principles are apparent. Commitment questions are

those that commit a prospective juror to resolve, or to refrain from resolving, an issue

a certain way after learning a particular fact. Often, such questions ask for a "yes" or

"no" answer, in which one or both of the possible answers commits the jury to

resolving an issue a certain way.

      Therefore, in the context of voir dire, a query regarding the expectations of a

juror informs both the prosecution or defense of any bias. This is the very essence

of voir dire – to speak the truth. Expectations brought into a trial by a juror are hardly

those of commitment. Rather, voir dire assists both parties. For instance, if the juror

expectation properly notified a prosecutor that these particular jurors expected to

receive information regarding the presence or absence of DNA, he is well-informed

such that he may challenge the juror for cause in order to determine whether that


                                            9
bias is improper. In fact, the statement, “We're going to have to have DNA to get a

conviction and these other things,” expresses only the need to deal with the

expectations of the juror during trial. This is certainly no different than all juror’s

wish to hear, see, and examine any other evidence prior to determine what weight it

should be given.

      The overruling of such an objection may be ill-advised and perhaps improper,

but there appears to have been little harm in the ruling. In reality, there was also little

harm in the question. This is particularly true given the testimony offered by Susan

Camazine, the State’s sexual assault nurse witness who testified that she did not take

swabs for DNA because the DNA would likely have been degraded after an elapse

of 96 hours and that the information related to her was that the last sexual activity

occurred prior to that 96-hour window. (3 R.R. 95-96)

       Commitment matters continued to be a source of objection during voir dire.

During Appellant’s voir dire the following exchange occurred:

       Q. Okay. Okay. All right. And not just for those of y'all who just raised your
       cards, but just generally, if there's a situation where somebody gets in
       trouble, is it common to try to deflect attention to something else? Mr.
       Maines, somebody gets where they're a teenager or whoever --

      MR. JIMERSON: Objection, Your Honor. May we approach?

      THE COURT: Yes.

      MR. JIMERSON: I object to the commitment question. He's just outright
      trying the case on voir dire. That's just clearly a statement of the defense that
                                            10
      she got in trouble for something else, so she came up with this story. It's just
      trying the case in voir dire. And if we're going to do that, the State should
      have the same opportunity. It's a commitment question. That's my objection.

      MR. SANDERS: I don't believe it's a commitment question at all, because it
      simply asked about their experience, how people respond to getting in
      trouble. I don't think it commits a jury.

      THE COURT: It is too close. I'll sustain the objection.


   Here, the court’s sustaining of the objection was appropriate. Appellant’s counsel

could have elicited the very same information by rephrasing the question.

   A review of the two objections during voir dire indicates there were no instances

in which the Appellant was harmed or irrevocably prejudiced by those rulings.

   3. There Were No Adverse Improper Adverse Rulings During The Trial On
      Objections Or Motions Had Been Improperly Made Such That They
      Created An Adverse Effect On The Result Of The Trial.

   During trial testimony, three objections were made by the Appellant’s regarding

the introduction of physical evidence. Each of these objections were made on the

ground of authentication and improper predicate. All of the evidentiary objections

were properly overruled. The following exchange is an exemplar of the objections:

      Q. (BY MR. WAVRUSA) Can you open that envelope for us and
      examine its contents, please?
      A. That's all that was in it.
      Q. Can you take a look at that? Do you recognize that?
      A. I do, sir.
      Q. What do you recognize it to be?


                                         11
      A. This is the letter that was provided to Deputy Wright during the
      initial investigation from the grandfather of the reported victim party.
      Q. And is it in the same or substantially the same condition as it was in
      when it was received by the Sheriff's Office?
      A. Yes, sir, with the exception of the stuff the laboratory did to it.
      MR. WAVRUSA: Your Honor, we would offer this letter as State's
      Exhibit No. 5 -- 4, excuse me.
      MR. SANDERS: I would object on the grounds of hearsay to the content,
      as well as I don't believe it's been properly authenticated or a proper
      predicate has been laid to establish that that was the letter provided to
      the Sheriff's Office.
      THE COURT: I'll overrule the objection. 4 will be received. (3 R.R. 43)
   Objections to testimony were also properly ruled upon. During the course of the

trial, four objections were made for hearsay, two for eliciting speculative answers

from the witness, and three for the positing of leading questions.

   Three of the hearsay objections provided little true need for consideration by the

court. However, there was some concern regarding the following exchange which

took place during the testimony of Letrevia Jackson, a caseworker for Child

Protective Services:

     Q. Okay. Was there any reason why she wasn't allowed to stay with her
     maternal grandfather, Herbert Adams?

     A. Child Protective Services was concerned that -- MR. JIMERSON:
     Objection, Your Honor. May we approach?

     THE COURT: Yes.

     (Conference at the Bench:)
     MR. JIMERSON: I'm going to object that this is all hearsay, and we have
     dug into the basis of this, and there's no truth to it. And I don't know
     whether I would be

                                         12
      able to get it disproven, because I don't know if my witness is still here.
      I need Petrice Adams. But it's just blatant hearsay.

      MR. SANDERS: As far as the allegation, I think there were allegations
      about the grandfather, Herbert Adams, sexually assaulting the mother,
      Petrice. There are allegations that Herbert Adams, the grandfather, had
      sexually assaulted Petrice when she was younger. And that's why my
      understanding, that's why XXXXXXXXX wasn't allowed to stay with
      him and actually was only allowed supervised visits with him. And I
      think that the reason we're getting into that is relevant is because it just
      shows another reason why – that it wasn't Laroyce that did this. If
      anything happened, there's another possible suspect right there based on
      that history and based on how the events took place, as far as him getting
      the letters, these letters, and taking them to law enforcement and kind of
      initiating this investigation.

      MR. JIMERSON: I understand his argument for relevance, but it's just
      blatant hearsay, which we've been going into hearsay and hearsay and
      hearsay. I've been letting it go, but this is serious. I've got both the parties
      supposed to be a part of that, Mr. Adams and Petrice, and I represent to
      the Court -- and I believe Mr. Sanders appreciates -- both of them are
      going to deny any such allegation.

      THE COURT: I'll sustain the objection as to the specific allegations. I'll
      let you say that or you can elicit testimony that she was not allowed or
      didn't live there or had restricted visitation, but that will be the extent of
      it. (4 R.R. 7-9)

      An allegation that testimony may be hearsay because the District

Attorney has investigated a matter is not what makes it hearsay. Rather, a

party who asserts the matter for the truth of the allegation is subject to the

hearsay rule, its exceptions, and its limitations. An affirmation of investigation

by the District Attorney which states the matter lacks evidence should be

tested if necessary. That is the very purpose of a trial - the test of allegations.

                                             13
The trial court here prevented the testimony on the specific allegations but

allowed at least some leeway as to testimony whereby the limitations on

visitation might be elicited. It is a potential harm but Appellant’s counsel

failed to even elicit those facts in subsequent testimony. Therefore, the

abandonment of the trial strategy largely waives any complaint regarding the

matter.

   4. There Were No Adverse Improper Rulings On Post-Trial Motions.

   There exists on the record no adverse post-trial rulings by the trial court.

   5. Jury Selection Was Properly Conducted In Order That A Fair And
      Impartial Jury Was Obtained.

             A full and complete review of the jury selection recorded in 2 R.R. was

      made with no indication that the jury selection would have been improper or

      that a fair and impartial jury might not have been accomplished.

   6. The Jury Instructions Were Properly Formulated.

      Tex. Code Crim. Proc. Ann. art. 36.14 provides that prior to the charge being

   read to the jury, the defendant or his counsel shall have reasonable time to

   examine the same and he shall present his objections thereto in writing, distinctly

   specifying each ground of objection. Here, the trial court held a hearing outside

   the presence of the jury after closing and before final arguments of counsel. Each




                                          14
party was offered the opportunity to object to the Jury Charge and both parties

offered no objection. (4 R.R. 111)

   Art. 36.14 provides that in each felony case tried in a court of record the judge

shall, before argument begins, deliver to the jury a written charge distinctly

setting forth the law applicable to the case; not expressing any opinion as to the

weight of the evidence, not summing up testimony, discussing the facts or using

any argument in his charge calculated to arouse sympathy or excite the passions

of the jury. The charge was properly read to the jury. (4 R.R. 112)

   In order for the charge to be constitutionally effective, the jury charge must

be properly formulated. In a properly formulated charge, there must be a

statement of general principles of jurisprudence regarding the foundational

matters of a fair and impartial trial, a discussion of the accusation, relevant

statutes burden of proof and the application of the law to facts. Jurors must also

be well-informed of the rules that control their deliberation.

   The trial court’s charge fairly met each of these matters. The trial court’s

general principles discussed the indictment, the presumption of innocence, the

burden of proof, the jury’s role as factfinder, matters of evidence, the use of

exhibits, trial testimony and the verdict. The Accusation section of the charged

discussed the actual accusation against the defendant, the standards applicable in


                                       15
Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000) regarding the dating

of the offense, and the presentation of the indictment. The relevant statutes were

presented accurately and in such plain and concise wording such that they would

be unlikely to be misinterpreted by a juror. The burden of proof and definitions

were adequately and accurately stated. The application of law to the facts was

well-addressed with the elements that must be proved being concisely stated and

the standard of agreement governing any final decision by the jury. The lesser

included offense was well-defined for the jury in plain and concise language.

Lastly, the rules controlling those deliberations were more than adequately

enumerated such that any juror might be expected to understand them. (1 C.R.

77-84)

   Due to the aforementioned conformity with standards generally accepted by

Texas courts, the jury instructions were properly formulated.

7. The Evidence Was Sufficiently Adduced At Trial To The Offense Upon
   Which The Conviction Was Based.

   The physical evidence and testimony at trial were sufficient to support a

conviction of the defendant. The State offered multiple examples of documents

purported to have been written by the defendant. (5 R.R. Exhibits 1-7) The source

of the original location of these documents was provided by Jonathan Rhodes, an




                                      16
investigator employed by the Rusk County Sheriff’s Department. (3 R.R. 34-35)

His testimony was uncontroverted.

   Testimony was given by Sarah Pryor, an employee of the Questioned

Documents Section of the Texas Department of Public Safety Crime Laboratory.

Ms. Pryor testified that the questioned documents were tested through the use of

known exemplars such that a determination as to the author of writings could be

determined within a strong probability and that, in her expert opinion, the

defendant was the author. (3 R. R. 115) She further testified that the laboratory

utilized oblique fiberoptic side lighting, a technique utilized the determine the

source of latent writing impressions, if in existence. Her testimony was also

uncontroverted.

   The State produced Herbert Adams whose testimony added the context to the

chronological actions of the various parties prior to their contact with law

enforcement authorities. The events testified by Mr. Adams were generally

uncontroverted.

   The State further produced Halasia Petrice Adams, the defendant’s wife, who

gained the original outcry from XXXX, her daughter. (3 R.R. 166) While there

is some confusion as to the exact timeline of actions due to the somewhat




                                     17
conflicting testimony given by Herbert Adams and Halasia Petrice Adams, there

can be little doubt their testimony was effective.

   The State also produced the victim, XXXX, for testimony. The testimony of

XXXX was very much at odds with the testimony of Herbert Adams and Halasia

Petrice Adams regarding a prior event concerning her “sneaking out” of the house

and taking her grandmother’s car to do so. However, her testimony as to the

actions of Laroyce Allen were unequivocal.

   The jury is allowed to weight the testimony and evidence produced at the time

of trial. It is their province to determine the credibility of witnesses and it would

appear the evidence provided was of reasonable quality upon which a conviction

could be made.

8. There Was No Failure By Trial Counsel To Object To Fundamental
   Error.

   A complete and exhaustive review of the Reporter’s Record and the Clerk’s

Record has been performed and has revealed no failure by trial counsel to object

to fundamental error.

9. There Were No Improper Adverse Rulings During The Punishment
   Phase On Objections Or Motions.

   The record is devoid of any adverse ruling to the defendant during the

punishment phase.


                                       18
10.The Sentence Was In The Applicable Range Of Punishment.

   Tex. Penal Code Ann. § 22.011 provides an offense under this section is a

felony of the second degree. Tex. Penal Code Ann. § 12.32(a) provides an

individual adjudged guilty of a felony of the second degree shall be punished by

imprisonment in the Texas Department of Criminal Justice for any term not more

than 20 years or less than 2 years. Tex. Penal Code Ann. § 12.32(b) further

provides that in addition to imprisonment, an individual adjudged guilty of a

felony of the second degree may be punished by a fine not to exceed $10,000.

   The Verdict Form signed by the foreperson of the jury assessed the

punishment of 20 years and no fine. (1 C.R. 94) The assessment of this sentence

is clearly within statutory guidelines.

11.The Written Judgment Accurately Reflects The Sentence Imposed And
   Credit Was Properly Applied.

   The written judgment prepared and filed by the trial court correctly reflect the

judgment and credit for time served.(1 C.R. 95)

12.Based Upon The Record, Appellant Did Not Receive Ineffective
   Assistance Of Trial Counsel.

   In Holland v. State, 761 S.W.2d 307 (Tex. Crim. App. 1988), the Court of

Criminal Appeals stated the standard of review regarding the legal issue of

ineffectiveness of counsel. The Court of Criminal Appeals stated on page 314 of

the opinion the following:
                                          19
      In Hernandez v, State, 726 S.W.2d 53 (Tex. Crim. App. 1986), this
      Court adopted as the litmus test to determine the validity of an effective
      assistance of counsel claim the standard handed down by the United
      States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104
      S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, supra, the Supreme
      Court held that in order to show ineffective assistance, a convicted
      defendant must (1) show that his trial counsel’s performance was
      deficient, in that counsel made such serious errors he was not
      functioning effectively as counsel, and (2) show that the deficient
      performance prejudiced the defense to such a degree that appellant was
      deprived of a fair trial. In this context, “prejudice” is demonstrated
      when the convicted defendant shows a reasonable probability that, but
      for the counsel’s unprofessional errors, the result of the proceeding
      would have been different. Id. 104 S.Ct. at 2068.

       An exhaustive search has been made of the trial record through examination

of the transcripts provided by the Court Reporter and the record provided by the

District Clerk. As a result of this examination, it is clear that in the case at bar, trial

counsel’s performance was free of serious errors.


                                    CONCLUSION

       Reviewing the evidence in the light most favorable to the trial court’s rulings,

no abuse of the trial court’s discretion occurred.


                                       PRAYER

       WHEREFORE, PREMISES CONSIDERED, MOVANT, CLAY DEAN

THOMAS, counsel for Appellant, respectfully requests this Honorable Texarkana

Court of Appeals to:

       1. Grant Clay Dean Thomas’ Motion To Withdraw As Appellant Counsel.

                                            20
      2. Allow Appellant to review the record and file a brief or other response on

         his behalf, should he so desire, and

      3. Grant any and all other relief to which Appellant may be entitled.


                                                Respectfully submitted,

                                                CLAY THOMAS, P. C.

                                                BY: /s/ Clay Dean Thomas
                                                Clay Dean Thomas
                                                Attorney for Appellant

                                                3548 NE Stallings Drive
                                                Nacogdoches, Texas 75965
                                                Phone:     (936) – 715 – 7144
                                                Facsimile: (877) – 899 – 0382
                                                clay.thomas@claythomaspc.com
                                                State Bar Number: 24088520



                      CERTIFICATE OF COMPLIANCE

      This is to certify that the sections covered by Texas Rule of Appellate

Procedure 9.4(i)(1) contain 5,496 words in 14-point type, excepting footnotes which

are in 12-point type. The total word count is 5,496.

                                       /s/Clay Dean Thomas
                                       Clay Dean Thomas


                         CERTIFICATE OF SERVICE

      I, Clay Dean Thomas, attorney for Appellant, do hereby certify that a true and

correct copy of the above and foregoing Brief of Appellant has been delivered to the
                                         21
following parties through depositing by First Class Service through the United State

Postal Service on this, the 6th day of October, 2016.



MR. MICHAEL ELWOOD JIMERSON
District Attorney, Rusk County, Texas
115 North Main Street
Henderson, Texas 75652




MR. LAROYCE DEMOND ALLEN
TDCJ No. 02078253
Joe F. Gurney Unit
1385 FM 3328
Palestine, Texas 75803

                                                /s/ Clay Dean Thomas
                                                Clay Dean Thomas


               CERTIFICATE OF APPELLATE COUNSEL

        I hereby certify that the foregoing document was electronically filed to

the Clerk, Court of Appeals, Sixth District of Texas, 100 North State Line

Avenue, Suite 20, Texarkana, Texas 75501, on this the 6th day of October,

2016.

                                                /s/ Clay Dean Thomas
                                                Clay Dean Thomas




                                           22
