                                                                         ACCEPTED
                                                                     06-15-00157-CR
                                                          SIXTH COURT OF APPEALS
                                                                TEXARKANA, TEXAS
                                                               11/3/2015 10:40:55 AM
                                                                    DEBBIE AUTREY
                                                                              CLERK

              NO. 06-15-00157-CR

         IN THE COURT OF APPEALS                   FILED IN
                                            6th COURT OF APPEALS
                                              TEXARKANA, TEXAS
   SIXTH APPELLATE DISTRICT OF          TEXAS
                                            11/3/2015 10:40:55 AM
                                                 DEBBIE AUTREY
            AT TEXARKANA, TEXAS                      Clerk




         NICHOLAS EDWARD AYERS,
                 Appellant

                       VS.

            THE STATE OF TEXAS,
                  Appel lee

  Appealed from the 2761h Judicial District Court
              Marion County, Texas
         Trial Court Cause No. F14576

            BRIEF OF APPELLANT


                               Submitted by:


                               James P. Finstrom
                               Counsel for Appellant
                               P.O. Box 276
                               Jefferson, Texas 75657
                               903-665-7111
                               Fax: 903-665-7167
                               State Bar #07038000



APPELLANT DOES REQUEST ORAL ARGUMENT
                 IDENTITY OF PARTIES AND COUNSEL
                      Pursuant to T.R.A.P. 38.1(a)

Appellant: Nicholas Edward Ayers
           Institutional Division of Texas Department
                  of Criminal Justice
           Joe F. Gurney Unit
           1835 FM 3328
           Tennessee Colony, Texas 75803

Counsel for Appellant at trial:

               Hon. Rick Berry
               111 West Austin Street
               Marshall, Texas 75670

Counsel for Appellant on appeal:

               Hon. James P. Finstrom
               P.O. Box 276
               Jefferson, Texas 75657

State's Counsel at trial and on appeal:

               Hon. Angela Smoak, County Attorney
               102 West Austin Street
               Jefferson, Texas 75657

Trial Judge:

               Hon. Robert Rolston, Judge,
               2761h Judicial District Court
               Marion County, Texas




                                      2
                  TABLE OF CONTENTS
                 Pursuant to T.R.A.P. 38.1(b)
                                                Page

IDENTITY OF PARTIES AND COUNSEL                        2

TABLE OF CONTENTS                                      3

INDEX OF AUTHORITIES                                   5

STATEMENT OF THE CASE                                  6

ISSUES PRESENTED                                       6

ISSUE NO. 1: THE STATE COMMITTED FUNDAMENTAL
    ERROR BY MAKING A PUNISHMENT ARGUMENT
    OUTSIDE THE EVIDENCE.

ISSUE NO. 2: APPELLANT DID NOT RECEIVE EFFECTIVE
    ASSISTANCE OF COUNSEL BECAUSE COUNSEL
    DID NOT OBJECT TO THE STATE'S PUNISHMENT
    ARGUMENT WHICH WAS LARGELY OUTSIDE THE
    EVIDENCE.

STATEMENT OF FACTS                                     7

ISSUE NO. ONE (Restated)                               8

IS THE STATE'S PUNISHMENT ARGUMENT OUTSIDE
THE EVIDENCE FUNDAMENTAL ERROR?

SUMMARY OF THE ARGUMENT                                8

ARGUMENT                                               8




                              3
ISSUE NO. TWO (Restated)                           10

DID APPELLANT RECEIVE EFFECTIVE ASSISTANCE OF
COUNSEL WHEN COUNSEL DID NOT OBJECT TO THE
ARGUMENT MADE THE BASIS OF ISSUE NO. ONE IN THIS
CASE?

SUMMARY OF THE ARGUMENT                            10

ARGUMENT                                           10

PRAYER                                             11

CERTIFICATE OF SERVICE                             12

CERTIFICATE OF COMPLIANCE                          13




                            4
                      INDEX OF AUTHORITIES
                     Pursuant to T.R.A.P. 38.1(c)

Cases:                                                      Page

Johnson v. State, 233 S.W.3d 109
     (Tex.App. Houston 14th Dist. 2007, no hist.)             9

Peak V. State, 57 S.W.3d 14                                   8
     (Tex.App. Houston 14th Dist. 2001)

Vaughn v. State 888 S.W.2d 62
     (Tex.App. -- Houston 1st Dist. 1994, p.d.r. granted
     and affirmed, 931 S.W.2d 564 (Tex.Crim.App.
     1996)                                                    11

Washington v. State.16 S.W.3d 70                              8
    (Tex.App. Houston 1st Dist. 2000, p.d.r. ref'd.)

Williams v. State,    S.W.3d                                  11
      2015 WL 5158449 (2015)

Wilson v. State, 938 S.W.2d 57 (Tex.Crim.App. 2002)            8, 9

Statutes:

Article 62.051(a), Code of Criminal Procedure                  12

Other Materials:

Tex. Jur 3d, Criminal Procedure: Trial, Sec. 480                  8

      All references to Texas statutes, rules, etc. are to the latest
edition published by West Publishing Company, unless otherwise
noted.




                                    5
                    STATEMENT OF THE CASE
                    Pursuant to T.R.A.P. 38.1(d)

     Appellant was tried in a bench trial on two cases of indecency

with a child, being the instant case and Appellate Cause Number 06-

15-00156-CR, on his plea of guilty to the indictment in each case.

Appellant's pleas of guilty in each case were entered on August 5,

2015. (2 RR 1-33) Evidence on the pleas was heard on August 27,

2015. (3 RR 1-58) The court found Appellant guilty on each case

and assessed an eighteen (18) year sentence in the Institutional

Division of the Texas Department of Criminal Justice on each case on

August 27, 2015 to run concurrently. (3 RR 65-66)     Appellant gave

timely notice of appeal September 23, 2015. (CR 98) Counsel was

appointed to represent Appellant on appeal on September 21, 2015.

(RR 97)

                      ISSUES PRESENTED
                    Pursuant to T.R.A.P. 38.1(e)

ISSUE NO 1: IS THE STATE'S PUNISHMENT ARGUMENT
OUTSIDE THE EVIDENCE FUNDAMENTAL ERROR REQUIRING
REVERSAL OF APPELLANT'S CONVICTION?

ISSUE NO. 2: DID APPELLANT RECEIVE EFFECTIVE
ASSISTANCE OF COUNSEL WHEN COUNSEL DID NOT OBJECT
TO THE ARGUMENT MADE THE BASIS OF ISSUE NO. 1 IN THIS
CASE.



                                  6
                      STATEMENT OF FACTS
                     Pursuant to T. R.A. P. 38.1 (f)

     The State called seven witnesses and Appellant did not testify

but called one witness.

      Martha Dyles and Kimberly Lara testified to the predicate for

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

Child Advocacy Center interview of the child named in each

indictment. (3 RR 8-13)

      Lauren Whitehead, who was employed with the jail at the

Marion County Sheriff's Department, testified that Appellant had

possession of contraband in his cell block during his confinement in

jail consisting of peach hooch which smelled like alcohol, a Tramadol

pill, paper clips which had been made into needles, and ear phones

with a yellow substance in them.   (3 RR 14-16)

     Vera Humphrey, Trelena Ives, Christi McWilliams, and Taylor

Quinn McWilliams testified to the circumstances surrounding the

outcry by the child victim in each of the two cases. (3 RR 18-34)

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

a character witness for him.




                                    7
                     ISSUE NO. ONE (Restated)

IS THE STATE'S PUNISHMENT ARGUMENT OUTSIDE THE
EVIDENCE FUNDAMENTAL ERROR REQUIRING REVERSAL OF
APPELLANT'S CONVICTION?

                     SUMMARY OF THE ARGUMENT
                      Pursuant to T. R.A. P. 38.1 (g)

      Counsel for the State made a very strong punishment conduct

about matters outside the evidence and record in this cause which

should not be deemed harmless error and requires reversal of

Appellant's conviction.

                            ARGUMENT
                     Pursuant to T.R.A.P. 38.1(h)
                             Issue No. 1

      Proper jury argument is delineated into four categories: (1)

summation of the evidence; (2) reasonable deductions from the

evidence; (3) responsive arguments; and (4) pleas for law

enforcement. Tex. Jur 3d, Criminal Procedure: Trial Sec. 480.

Appellate courts should not hesitate to reverse when it appears that

the State has departed from one of these areas in argument and has

engaged in conduct calculated to deny the accused a fair and

impartial trial. Wilson v. State, 938 S.W.2d 57 (Tex.Crim.App. 2002);

Washington v. State.16 S.W.3d 70 (Tex.App. Houston 1st Dist. 2000,

p.d.r. ref'd.); Peak v. State, 57 S.W.3d 14 (Tex.App. Houston 14th

                                   8
Dist. 2001 ). The test to consider whether improper argument

constitutes reversible error is whether the argument violates a statute;

injects new and harmful facts into the case; or is extreme or

manifestly improper, harmful, and prejudicial to the rights of the

accused. Wilson v. State, supra. The applicable standard of review

is whether, in light of the record as a whole, there is a reasonable

possibility that the improper argument was so prejudicial as to deprive

the defendant of a fair and impartial trial. Johnson v. State, 233

S.W.3d 109 (Tex.App. Houston 141h Dist. 2007, no hist.)

      The State's argument in this case was almost entirely totally

outside the record and based on a letter Appellant had written to the

Court which was not offered or admitted into evidence in this cause.

No objection was made to the argument, but it should be considered

as fundamental error because of the nature of the argument, referring

to Appellant as a person "who has an addiction to pornography" (3

CR 59), and that "he never says he's sorry" (3 CR 61 ), and "he tells

the Court that he didn't see a reaction from the children, so it must be

okay" (3 CR 60), and that "he even mentions my very own mother in

this letter to the Court." (3 CR 60). The harm can been seen in the

length of the sentence given Appellant by the Court. Appellant's


                                   9
conviction should be reversed because the argument appears to

have been asking for serious punishment for matters outside the

record. The letter is in the clerk's record at CR36, because it was

filed by the Clerk although it was not admitted as evidence in the

case. The argument is a very strong argument and should not be

considered harmless error.

                            ISSUE NO. TWO
                               (Restated)

DID APPELLANT RECEIVE EFFECTIVE ASSISTANCE OF
COUNSEL WHEN COUNSEL DID NOT OBJECT TO THE
ARGUMENT MADE THE BASIS OF ISSUE NO. ONE IN THIS
CASE.

                      SUMMARY OF THE ARGUMENT
                       Pursuant to T. R.A. P. 38.1 (g)
                            Issue No. 2

      Appellant's trial counsel did not object to the argument outside

the evidence made the basis for the argument in Issue No. 1 and

Appellant did not receive effective assistance of counsel.

                               ARGUMENT

      Appellant's counsel at trial did not object to the State's

argument made the basis of Issue No. 1 above. Appellant can

conceive of no trial strategy in this case that would justify trial

counsel's failure to object to the argument.


                                     10
      This Court recently dealt with the issue of fundamental or

egregious error in a criminal trial and the failure of counsel to object

to the error in Williams v. State,        S.W.3d       , 2015 WL

5158449 (2015). In Williams, this Court held that an appellate court

will not reverse based on an unpreserved claim of charge error

unless the defendant suffered harm so egregious that he was denied

a fair and impartial trial because the error affected the very basis of

the case or deprived the defendant of a valuable right or vitally affect

a defensive theory. While the factual background of charge error

may differ from argument error, Appellant urges that the error

presented in his case affect the very basis of the punishment given

him by the trial court. Where trial counsel fails to object to the

State's argument, Appellant urges that it is clear that the trial court

would have committed error in refusing to sustain an objection to the

argument that is clearly outside the record and prejudicial to

Appellant. See Vaughn v. State 888 S.W.2d 62 (Tex.App. -- Houston

151 Dist. 1994, p.d.r. granted and affirmed, 931 S.W.2d 564 (1996)

                                 PRAYER

      Upon the issues presented, Appellant, Nicholas Edward Ayers

prays that this Court reverse the judgment of the trial court and


                                     11
remand the case to the trial court for a new punishment hearing, and

for such other and further relief to which he may be entitled.

                                           Respectfully submitted,




                                            ls/James P. Finstrom
                                           James P. Finstrom
                                           Counsel for Appellant
                                           202 S. Marshall,
                                           P.O. Box 276
                                           Jefferson, Texas 75657
                                           903-665-7111
                                           Fax: 903-665-7167
                                           Texas Bar #07038000




                     CERTIFICATE OF SERVICE

      I certify that I have delivered a true copy of this brief to Hon.
Angela Smoak, counsel for the State, and to Appellant by United
States mail, first class postage prepaid, at the Joe F. Gurney Unit,
1385 FM 3328, Tennessee Colony, Texas 75803, on this 3rd day of
November, 2015.


                                             ls/James P. Finstrom
                                           James P. Finstrom



                                   12
                   CERTIFICATE OF COMPLIANCE

       I certify that Appellant's Brief filed electronically on this 3rd day
of November, 2015 complies with Tex. R. App. P. 9.4(i)(2)(B). This
Brief contains 1, 731 words.


                                                    /s/ James P. Finstrom
                                                    James P. Finstrom




                                      13
