                                                                          PD-0095-15
                    PD-0095-15                           COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                       Transmitted 1/22/2015 9:11:58 AM
                                                        Accepted 1/28/2015 10:01:26 AM
                                                                           ABEL ACOSTA
                    NO._________________
                                                                                  CLERK

                            IN THE

               COURT OF CRIMINAL APPEALS

                           OF TEXAS



                   BRANDON WILLIAMS
                       Petitioner

                               v.

                    THE STATE OF TEXAS
                         Respondent



           Petition is in Cause No. 1327831D from the
     371st Criminal District Court of Tarrant County, Texas,
              and Cause No. 02-14-00194-CR in the
        Court of Appeals for the Second District of Texas



         PETITION FOR DISCRETIONARY REVIEW



                                    Abe Factor
                                    TBN: 06768500
                                    Daniel Collins
                                    TBN: 24071079
                                    Factor, Campbell & Collins
                                    Attorneys at Law
                                    5719 Airport Freeway
January 28, 2015                    Phone: (817) 222-3333
                                    Fax: (817) 222-3330
                                    Email: lawfactor@yahoo.com
                                    Attorneys for Petitioner
                                    Brandon Williams
                  IDENTITY OF PARTIES AND COUNSEL

Appellant:                   Brandon Williams

Appellant’s Trial Counsel:   Hon. Charles Roach
                             TBN: 16965700
                             Attorney at Law
                             P.O. Box 35063
                             Fort Worth, Texas 76112

Appellant’s Counsel          Hon. Abe Factor
on Appeal:                   TBN: 06768500
                             Hon. Daniel Collins
                             SBN: 24071079
                             Factor, Campbell & Collins
                             Attorneys at Law
                             5719 Airport Freeway
                             Fort Worth, Texas 76117
                             Phone: (817) 222-3333
                             Facsimile: (817) 222-3330

Appellee:                    The State of Texas

Appellee’s Trial Counsel:    Hon. Arthur Clayton
                             TBN: 24007007
                             Hon. Erin Cofer
                             TBN: 24066277
                             Assistant District Attorney
                             Tarrant County, Texas
                             401 W. Belknap
                             Fort Worth, Texas 76196

Appellee’s Counsel           Hon. Charles Mallin
on Appeal:                   TBN: 12867400
                             Assistant District Attorney
                             401 W. Belknap
                             Fort Worth, Texas 76196



                                     ii
                                              TABLE OF CONTENTS
                                                                                                                                 page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

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

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

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

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

REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

I.       The “good time” jury instruction mandated by article 37.07 section 4 of
         the Texas Criminal Procedure Code is unconstitutional when applied to
         an offender who is not eligible for “good time” credit. . . . . . . . . . . . . . . . . 2.

         A.        Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

         B.        Opinion Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

         A.        Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

         B.        Harm Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

                                                                 iii
                                         INDEX OF AUTHORITIES

Cases                                                                                                                  page

Allen v. State,
       253 S.W.3d 260 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Almanza v. State,
     686 S.W.2d 157 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Boyde v. California,
      494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). . . . . . . . . . . . . . . . . . . . . 6

Hutch v. State,
      922 S.W.2d 166 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Igo v. State,
       210 S.W.3d 645 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Luquis v. State,
      72 S.W.3d 355 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 6

Sanders v. State,
      255 S.W.3d 754 (Tex. App.–Fort Worth 2008, pet. ref’d). . . . . . . . . . . . . . . . . . . 3

Trejo v. State,
       280 S.W.3d 258 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Williams v. State,
      02-14-00194-CR, (Tex. App.–Fort Worth, December 23, 2014, no. pet. h.)
                   (mem. op., not designated for publication). . . . . . . . . . . . . . . 1, 3

Constitutions

Tex. Const. Art. I § 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Tex. Const. Art. I § 19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

U.S. Const. Amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

                                                              iv
U.S. Const. Amends. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statutes

Tex. Crim. Proc. Code Ann. § 36.14 (West Supp. 2013). . . . . . . . . . . . . . . . . . . . . . . . 4

Tex. Crim. Proc. Code Ann. § 37.07(4)(a) (West Supp. 2013). . . . . . . . . . . . . . . . . . . 4

Tex. Gov’t Code Ann. § 508.145(d) (West 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Tex. Penal Code Ann. § 22.021 (West 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                            v
                STATEMENT REGARDING ORAL ARGUMENT

      Because Petitioner does not believe that oral argument will materially assist

the Court in its evaluation of matters raised by this pleading, Petitioner respectfully

waives oral argument.

                           STATEMENT OF THE CASE

      On August 8, 2013, Brandon Williams (“Williams” or “Petitioner”) was

indicted for the first degree felony offense of aggravated sexual assault, alleged to

have occurred on April 13, 2013 (C.R. 6); see Tex. Penal Code Ann. § 22.021 (West

2011). A jury trial was held in the 371st Criminal District Court of Tarrant County,

the Honorable Mollee Westfall, presiding, on April 28-31 and May 1, 2014. (I-VI R.R.

passim). The jury found Williams guilty as charged in the indictment. (IV R.R. 24-25).

Punishment was to the jury, which sentenced Williams to a term of ninety-nine (99)

years incarceration in the Institutional Division of the Texas Department of Criminal

Justice. (VI R.R. 64).

      A timely Notice of Appeal was filed on May 1, 2014. (C.R. 90).

                   STATEMENT OF PROCEDURAL HISTORY

      The opinion by the Second Court of Appeals affirming Williams’ conviction

was handed down on December 23, 2014. See Williams v. State, 02-14-00194-CR (Tex.

App.–Fort Worth, December 23, 2014, no. pet. h.) (mem. op., not designated for

publication). This timely Petition for Discretionary review ensued.

                                           1
                               GROUNDS FOR REVIEW

                             GROUND FOR REVIEW ONE

I.    The “good time” jury instruction mandated by article 37.07 section 4 of the
      Texas Criminal Procedure Code is unconstitutional when applied to an
      offender who is not eligible for “good time” credit.

                                REASONS FOR REVIEW

1.    This Court should reverse its opinion in Luquis1 and find that the “good time”

jury instruction mandated by section 37.07(4)(a) is unconstitutional when applied

to an offender who is not eligible for “good time” credit.

                                       ARGUMENT

                       GROUND FOR REVIEW ONE (Restated)

I.    The “good time” jury instruction mandated by article 37.07 section 4 of the
      Texas Criminal Procedure Code is unconstitutional when applied to an
      offender who is not eligible for “good time” credit.

      A.       Facts

      After a five-day jury trial, Williams was found guilty of aggravated sexual

assault. (IV R.R. 24-25). At punishment, the jury charge contained the language

authorized by statute regarding good conduct time for Texas prison inmates. (C.R.

76-77). Williams did not object to the Court’s jury charge on punishment. (VI R.R.

55). The jury sentenced Williams to ninety-nine years incarceration. (VI R.R. 64).




      1
          Luquis v. State, 72 S.W.3d 355, 363-68 (Tex. Crim. App. 2002).

                                              2
      B.     Opinion Below

      In its Opinion, the Second Court of Appeals correctly held that as this Court

has firmly held against Williams’ argument, it was bound this Court’s binding

precedent. See Williams v. State, 02-14-00194-CR, at *2-3 (citing Luquis v. State, 72

S.W.3d 355, 363-68 (Tex. Crim. App. 2002)); Sanders v. State, 255 S.W.3d 754, 765-66

(Tex. App.–Fort Worth 2008, pet. ref’d).

      C.     Discussion

      The court’s charge to the jury on punishment contained the following:

             Under the law applicable in this case, the defendant, if sentenced to a
      term of imprisonment, may earn time off the period of incarceration imposed
      through the award of good conduct time. Prison authorities may award good
      conduct time to a prisoner who exhibits good behavior, diligence in carrying
      out prison work assignments, and attempts at rehabilitation. If a prisoner
      engages in misconduct, prison authorities may also take away all or part of
      any good conduct time earned by the prisoner.
             It is also possible that the length of time for which the defendant will
      be imprisoned might be reduced by the award of parole.
             Under the law applicable in this case, if the defendant is sentenced to
      a term of imprisonment, he will not become eligible for parole until the actual
      time served equals one-half of the sentence imposed or 30 years, whichever
      is less, without consideration of any good conduct time he may earn.
      Eligibility for parole does not guarantee that parole will be granted.
             It cannot accurately be predicted how the parole law and good conduct
      time might be applied to this defendant if he is sentenced to a term of
      imprisonment, because the application of these laws will depend on decisions
      made by prison and parole authorities.
             You may consider the existence of the parole law and good conduct
      time. However, you are not to consider the extent to which good conduct time
      may be awarded to or forfeited by this particular defendant. You are not to
      consider the manner in which the parole law may be applied to this particular
      defendant.

                                           3
(C.R. 76-77).

         A person serving a sentence for aggravated sexual assault is not eligible to

accumulate good conduct time credits. See Tex. Gov’t Code Ann. § 508.145(d) (West

2012).

         The jury charge in question is authorized by statute. See Tex. Crim. Proc. Code

Ann. § 37.07(4)(a) (West Supp. 2013). The jury charge authorized by section

37.07(4)(a) of the Code of Criminal Procedure informs the jury of good conduct time,

briefly describes the concept, and explicitly tells the jury not to apply it to Williams.

See Tex. Code Crim. Proc. § 37.07(4)(a); (C.R. 76-77). Under Texas law, the purpose

of the jury charge is to inform the jury of the applicable law and to guide it in

applying the law to the case. Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996).

The charge should not merely avoid misleading or confusing the jury, but should

lead them and prevent confusion. Id. at 169. Further, Article 36.14 of the Texas Code

of Criminal Procedure contains the overriding principle governing the court’s

charge to the jury. It requires a judge to deliver to a jury, in writing, a charge

“distinctly setting forth the law applicable to the case.” Tex. Crim. Proc. Code Ann.

§ 36.14 (West Supp. 2013). However, the complained-of statutory charge violates this

principle and sows confusion in the minds of the jury, since Willams’ parole can not

be affected in any way by the accumulation of good time. By doing so, Williams’



                                            4
right to due process and due course of law is violated. The Court’s charge to the jury

on good-conduct time as mandated in article 37.07, section 4(a), is unconstitutional

as applied to appellant because it violates the due course of law provisions of article

I, sections 13 and 19 of the Texas Constitution and the due process clauses of the

Fifth and Fourteenth Amendments of the United States Constitution in requiring an

instruction that is, in this case, an incorrect statement of the law. See U.S. Const.

Amends. V, XIV; Tex. Const. Art. I §§ 13, 19. Because it is an incorrect statement of

the law, it is erroneous; however, since Williams failed to lodge an objection to the

charge, he must show that he suffered “egregious harm” in order to merit reversal.

See Igo v. State, 210 S.W.3d 645 (Tex. Crim. App. 2006); Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1984).

      D.     Harm Analysis

      Jury-charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory. Allen

v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). The standard of harm is that for

unobjected-to error in the charge is whether

      the error is so egregious and created such harm that he has not had a fair and
      impartial trial--in short[,] egregious harm. . . .[T]he actual degree of harm
      must be assayed in light of the entire jury charge, the state of the evidence,
      including the contested issues and weight of probative evidence, the
      argument of counsel and any other relevant information revealed by the
      record of the trial as a whole.


                                           5
Trejo v. State, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009) (quoting Almanza, 686

S.W.2d at 171).

      Here, Williams received a sentence of ninety-nine years. During closing

argument on punishment, the State requested that the jury sentence Williams to

nothing less than a life sentence. (VI R.R. 56, 62). The jury brought back a sentence

substantially equivalent to the sentence the State had requested. Though the jury is

presumed to have followed the instruction as given and therefore not considered

how parole would apply to Williams, Luquis, 72 S.W.3d at 366, the Court of Criminal

Appeals has recognized that in some instances jury instructions may at the least be

“ambiguous and therefore subject to an erroneous interpretation.” Id. at 366 (citing

Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). By

confusingly referring to good conduct time credit and its effect on parole even

though the concept is inapplicable to Williams here, the instructions are eminently

“ambiguous and therefore subject to an erroneous interpretation,” as shown by the

fact that the jury felt it necessary to assess a sentence substantially equivalent to that

requested by the State. It is entirely conceivable that the jury’s fear that Williams

might be released early due to the accumulation of good conduct time credit caused

it to return with a sentence substantially equivalent to that requested by the State.

      Having found that Williams suffered egregious harm from the trial court’s



                                            6
jury charge on punishment, this Court should reverse the sentence entered below

and remand for new punishment hearing.

                             PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays that this

Court grant discretionary review and allow each party to fully brief and argue the

issues before the Court of Criminal Appeals, and that upon reviewing the judgment

entered below, that this Court reverse the opinion of the Second Court of Appeals

and delete the reparations from the judgment in this cause.

                                     Respectfully submitted,

                                      /s/ Abe Factor
                                     Abe Factor
                                     TBN: 06768500
                                     Hon. Daniel Collins
                                     SBN: 24071079
                                     Factor, Campbell & Collins
                                     Attorneys at Law
                                     5719 Airport Freeway
                                     Phone: (817) 222-3333
                                     Fax: (817) 222-3330
                                     Attorney for Petitioner
                                     Brandon Williams




                                        7
                       CERTIFICATE OF COMPLIANCE

      I hereby certify that the word count for the portion of this filing covered by
Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 2,219.

                                      /s/Abe Factor
                                      Abe Factor

                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing instrument has
been furnished to counsel for the State’s Prosecuting Attorney and the Tarrant
County District Attorney by a manner compliant with the Texas Rules of Appellate
Procedure, on this 23rd day of January, 2015.

                                      /s/Abe Factor
                                      Abe Factor




                                         8
                                 APPENDIX

1. Opinion of the Second Court of Appeals




                                       9
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00194-CR


BRANDON WILLIAMS                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1327831D

                                     ----------

                         MEMORANDUM OPINION 1

                                     ----------

      Appellant Brandon Williams appeals from his conviction for aggravated

sexual assault and 99-year sentence. In his sole point, Appellant argues that the

trial court’s jury charge at punishment violated his rights to due process and due

course of law. Because Appellant’s argument has been rejected by the court of

criminal appeals, we affirm.


      1
       See Tex. R. App. P. 47.4.
      After a jury found Appellant guilty of aggravated sexual assault and heard

evidence regarding punishment, the trial court charged the jury and included the

statutory instruction regarding the possible effect of good-conduct credits on

Appellant’s sentence. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (West

Supp. 2014).    As required, the instruction informed the jury that it could not

“consider the extent to which good conduct time may be awarded to or forfeited

by [Appellant] . . . [or] the manner in which the parole law may be applied” to

Appellant.    See id.   Under the law applicable to Appellant’s conviction for

aggravated sexual assault, Appellant was not eligible for release on mandatory

supervision based on good-conduct credits.          See Tex. Gov’t Code Ann.

§§ 508.145(d), 508.149(a) (West Supp. 2014); Tex. Penal Code Ann. § 22.021(a)

(West Supp. 2014). Appellant argues that the inclusion of the good-conduct-time

instruction violated his constitutional rights because it did not apply to his

conviction.

      Showing the highest degree of professionalism, counsel for Appellant

candidly recognizes that this issue has been firmly decided against his position.

Indeed, the court of criminal appeals has held that the instruction under article

37.07, section 4 is statutorily required to be given even if the instruction has no

effect on a defendant’s eligibility for mandatory supervision. Luquis v. State, 72

S.W.3d 355, 363 (Tex. Crim. App. 2002). The court further concluded that the

statutorily required instruction did not violate a defendant’s due-process or due-

course-of-law rights even though inapplicable. Id. at 364–68. We are bound by


                                        2
this precedent and, therefore, conclude that the trial court did not err by including

the required good-conduct-time instruction even though inapplicable to Appellant.

See Sanders v. State, 255 S.W.3d 754, 765–66 (Tex. App.—Fort Worth 2008,

pet. ref’d). We overrule Appellant’s point and affirm the trial court’s judgment.

See Tex. R. App. P. 43.2(a).

                                                    /s/ Lee Gabriel

                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 23, 2014




                                         3
