                                                                   ACCEPTED
                                                               06-15-00154-CR
                                                    SIXTH COURT OF APPEALS
                                                          TEXARKANA, TEXAS
           No. 06-15-00154-CR                            11/25/2015 1:15:13 PM
                                                              DEBBIE AUTREY
                                                                        CLERK
      IN THE COURT OF APPEALS

                FOR THE
                                              FILED IN
   SIXTH JUDICIAL DISTRICT OF TEXAS    6th COURT OF APPEALS
                                         TEXARKANA, TEXAS
                                       12/1/2015 10:32:00 AM
                                            DEBBIE AUTREY
                                                Clerk
    ARTIS LADELL WILLIAMS, Appellant

                  VS.

     THE STATE OF TEXAS, Appellee



APPEALED FROM THE 71ST DISTRICT COURT

      HARRISON COUNTY, TEXAS

           CAUSE NO. 15-0053X




           APPELLEE’S BRIEF



                        COKE SOLOMON
                        CRIMINAL DISTRICT ATTORNEY
                        HARRISON COUNTY, TEXAS
                        P.O. BOX 776
                        MARSHALL, TEXAS 75671
                        (903) 935-4840

     BY:   LAURA M. CARPENTER
           ASSISTANT CRIMINAL DISTRICT ATTORNEY
           BAR #08618050
           ATTORNEY FOR APPELLEE




     Oral Argument is Not Requested
                                  No. 06-15-00154-CR

                               ARTIS LADELL WILLIAMS,
                                            Appellant

                                             VS.

                                THE STATE OF TEXAS,
                                            Appellee

                  __________________________________________

                    NAMES OF ALL PARTIES AND ATTORNEYS
                  __________________________________________

      The names and identifying information of all parties and attorneys were correctly

stated in Appellant’s brief, except for the following name should include

Laura M. Carpenter as Appellate Attorney on behalf of the State of Texas:

Laura M. Carpenter
Appellate Attorney
Harrison County District Attorney’s Office
P.O. Box 776
Marshall, TX 75671
Telephone: 903-935-8408
Facsimile: 903-935-4836
laurac@co.harrison.tx.us




                                             ii
                                               TABLE OF CONTENTS


NAMES OF ALL PARTIES AND ATTORNEYS ............................................................... ii

INDEX OF AUTHORITIES .............................................................................................. iv

         CASES: ................................................................................................................ iv

         CODES, RULES, STATUTES: ............................................................................. iv

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

STATE’S REPLY to ISSUE NUMBER ONE. ................................................................... 1

STATE’S REPLY to ISSUE NUMBER TWO. .................................................................. 1

GENERAL STATEMENT OF THE FACTS ...................................................................... 2

ARGUMENTS AND AUTHORITIES ................................................................................ 3

         SUMMARY OF THE ARGUMENT to ISSUE NUMBER ONE ............................ 3-5

         SUMMARY OF THE ARGUMENT to ISSUE NUMBER TWO .............................. 5

PRAYER ......................................................................................................................... 6

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

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




                                                               iii
                                    INDEX OF AUTHORITIES


CASES:

Skinner v. State, 956 S.W.2d 532, 544 (Tex.Crim.App 1987)…………………….………4

Almanza v. State, 686 s.w.2D 157, 171 (Tex.Crim.App 1984)(opinion on reh’g).......….4

Rogers. v. State, 38 S.W.3d 725 (Tex. App.- Texarkana 2001, pet. ref’d)………………4

Ramos v. State, 831 S.W.2d 10, 17-18 (Tex-App-El Paso, 1992, pet ref’d)……………..4

Stewart v. State, 293 S.W.3d 853 (Tex.App.-Texarkana 2009)…………………………...5

.


CODES, RULES AND STATUTES:


Texas Code of Criminal Procedure Article 37.07(4)(c) .................................................. 3



.




                                                   iv
                             STATEMENT OF THE CASE



      Appellant, Artis Ladell Williams, was convicted for possession of

methamphetamine and possession of cocaine after a plea of guilty in the 71st Judicial

District Court in Harrison County, Texas. At the conclusion of the punishment phase,

the jury sentenced him to 10 years imprisonment for possession of methamphetamine

and 15 years imprisonment for possession of cocaine. The sentences are to run

concurrently. (CR154).

      Appellant presents his appeal in two issues.



                  STATE’S REPLY to APPELLANT’S ISSUE NO. 1

      The trial court did not err in the manner of submission of the parole law

charge in the punishment charge to the jury.



                  STATE’S REPLY TO APPELLANT’S ISSUE NO. 2


      The trial court did err in assessing payment of court appointed counsel fees

against the appellant, an indigent person.




                                             1
                       GENERAL STATEMENT OF THE FACTS

             On February 26, 2015, Artis Ladell Williams was indicted for two count of

possession of drugs. CR-8. Count I alleged possession of methamphetamine in an

amount of more than one gram but less than four grams, a third degree felony. Count

II alleged possession of cocaine in an amount more than four grams but less than 200

grams, a second degree felony.

             On September 8, 2015, the trial started. After 2 ½ hours of testimony

from two State witnesses, the defendant changed his plea of not guilty to guilty on both

counts. 6 RR 72-74.

             On September 9, 2015, the trial for punishment began before the jury.

The State introduced Mr. Williams’ criminal history of ten misdemeanor offenses. 8 RR

SX 61-72. Six witnesses testified for the defendant in support of his application for

community supervision. The State in closing argument asked the jury to sentence the

defendant to 10 years and 15 years. 7 RR 105. The jury sent a note to the judge

during deliberations asking whether the sentences would run concurrently or

consecutively. CR-138. The trial court responded stating for the jury to determine the

sentence based on the law given and the facts presented. CR-139. The jury

assessed 10 years for possession of methamphetamine and 15 years for possession of

cocaine. CR 145-146




                                            2
                      STATE’S REPLY to ISSUE NUMBER ONE

      The trial court did not err in the manner of submission of the parole law charge in

the punishment charge to the jury.


                           SUMMARY OF THE ARGUMENT

      The trial court properly submitted the instruction on parole law per the statutory

language of the Texas Code of Criminal Procedure Article 37.07(4)(c).



                 ARGUMENTS AND AUTHORITIES REPLY to ISSUE ONE

      The punishment charge given to the jury tracked the language as set forth in Texas

Code of Criminal Procedure 37.07(4)(c) regarding parole law. CR-142. This statutory

language applies to second and third degree convictions. In this case, Count I involved

a third degree felony and Count II involved a second degree felony.

      Appellant argues that the court erred in submitting one parole law instruction for

the two counts, yet provides no case law or statute to support this argument. The

defendant made no objection to the charge. 7 RR 89. At no time in the case did the

State nor the defendant ever mention parole. 7 RR 93-105.

     During jury deliberation, the foreman sent a note to the court asking if the sentences

would run concurrently or consecutively. CR-38. The trial court responded that the jury

is to determine the sentence based on the law given and the facts presented. CR-139,

7 RR 107. The defendant made no objection to the trial court’s response.



                                            3
            Appellee agrees with Appellant’s argument that since Appellant did not object

to the punishment charge nor to the judge’s response to the jury note, his appellate

complaint may be sustained only if he can show egregious harm, i.e., harm so great that

he was denied a fair and impartial trial.         Skinner v. State, 956 S.W.2d532, 544

(Tex.Crim.App. 1997). Almanza v. State, 686 S.W. 2d 157, 171 (Tex.Crim.App. 1984)

(opinion on reh’g).

       In determining whether egregious harm occurred, we review the error “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 the trial as a whole.” Almanza, 686 S.W.2d at 171.

       Appellant argues that based on the jury’s note that the jury was concerned with the

application of the parole law. Appellant cites Rogers v. State, 38 S.W.3d 725 (Tex.App.-

Texarkana 2001, pet. ref’d) as supporting case law for application to this case. Rogers

is distinguishable because in that case the trial court did not provide the statutory

instruction on the application of parole in the charge. Further, after receiving a request

from the jury, the trial court gave a limited answer and still failed to provide the statutory

language.

       Ramos v. State, 831 S.W.2d 10, 17-18 (Tex-App –El Paso, 1992, pet ref’d) held

that where a defendant did not object to the absence of the parole instruction, if the jury

raises a question about parole law, the court is required to give a full and complete

response.) In this instance, the trial court referred the jury back to the charge which

stated the complete statutory language of Tex.Code Crim. Proc. Ann. Art 37.07 (4)(c).


                                              4
       In Stewart v. State, 293 S.W.3d 853 (Tex.App.- Texarkana 2009) the court set

out four categories to review harm: on the entirety of the jury charge; the state of

evidence, the contested issues, and the weight of the probative evidence; on the

arguments made by counsel; and on any other relevant information by the record.

       The jury charge in this case tracked the statutory language regarding parole

application, including the standard curative language. The Defendant plead guilty to

the two counts and evidence was introduced regarding his ten misdemeanor offenses.

Neither the State nor the defendant ever mention parole in voir dire or in argument. The

jury’s note which may have indicated the jury’s interest in and consideration of parole

during its deliberations was responded to by the trial court in referring back to the

charge which, again, tracked the correct statutory parole instruction including the

standard curative language. The Appellant has failed to show any harm, much less

any egregious harm.

              Appellant’s Issue Number One should be overruled.




                   STATE’S REPLY TO APPELLANT’S ISSUE TWO

       .Appellee agrees with Appellant that the trial court judgment should be modified

to delete the assessment of court appointed counsel fees.

       .




                                             5
                                         PRAYER

       The trial court having committed no reversible error as to Issue One, Appellee

respectfully prays this Court affirm the judgment of the court below as to Issue One and

to modify the judgment to delete the assessment of court appointed counsel fees.



                                                       Respectfully Submitted
                                                       Coke Solomon
                                                       Criminal District Attorney
                                                       Harrison County, Texas



                                                 By:   /s/ Laura M. Carpenter
                                                       Laura M. Carpenter,
                                                       Assistant District Attorney
                                                       Bar Card #08618050


                           CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief contains 1489 words according to the computer
program used to prepare the document.



                                                 /s/ Laura M. Carpenter
                                                 Laura M. Carpenter



                              CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing Appellee’s Brief has
been faxed to the attorney for Appellant, Ebb Mobley, this 25th day of November, 2015,
by e-file.


                                                 /s/ Laura M. Carpenter
                                                 Laura M. Carpenter

                                             6
