                                                                                     ACCEPTED
                                                                                 01-15-00183-CR
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                           7/31/2015 11:33:28 AM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK



                        NO. 01-15-00183-CR
                                                                FILED IN
                   IN THE COURT OF APPEALS               1st COURT OF APPEALS
                FOR THE FIRST DISTRICT OF TEXAS              HOUSTON, TEXAS
                                                         7/31/2015 11:33:28 AM
                                                         CHRISTOPHER A. PRINE
                                                                  Clerk
                           ROY VASQUEZ
                             Appellant
                                  v.
                       THE STATE OF TEXAS
                             Appellee



               On Appeal from Cause Number 1437421
     In the 230th Criminal District Court of Harris County, Texas



                      BRIEF FOR APPELLANT


ORAL ARGUMENT REQUESTED                     ALEXANDER BUNIN
                                            Public Defender
                                            Harris County, Texas
                                            MARK KRATOVIL
                                            Assistant Public Defender
                                            Texas Bar Number 24076098
                                            1201 Franklin Street, 13th Floor
                                            Houston, Texas 77002
                                            Telephone: (713) 274-6728
                                            Facsimile: (713) 437-4339
                                            mark.kratovil@pdo.hctx.net
                                            Counsel for Appellant
                  IDENTITY OF PARTIES AND COUNSEL

APPELLANT                                Roy Vasquez
                                         TDCJ # 01983466
                                         Eastham Unit
                                         2665 Prison Road #1
                                         Lovelady, Texas 75851

DEFENSE COUNSEL AT TRIAL                 Asha Reddi
                                         14090 Southwest Freeway
                                         Suite 300
                                         Sugar Land, Texas 77478

                                         Grant Scheiner
                                         2211 Norfolk Street
                                         Suite 735
                                         Houston, Texas 77098
PROSECUTORS AT TRIAL                     Sarah Roberts
                                         Assistant District Attorney
                                         Lisa Calligan
                                         Assistant District Attorney
                                         Harris County, Texas
                                         1201 Franklin Street, 6th Floor
                                         Houston, Texas 77002
PRESIDING JUDGE                          The Honorable Brad Hart
                                         230th Criminal District Court
                                         1201 Franklin Street, 16th Floor
                                         Houston, Texas 77002
APPELLANT’S COUNSEL                      Mark Kratovil
                                         Assistant Public Defender
                                         Harris County, Texas
                                         1201 Franklin Street, 13th Floor
                                         Houston, Texas 77002




                                 ii
                                                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................................. ii
TABLE OF CONTENTS ............................................................................................................ iii
INDEX OF AUTHORITIES ........................................................................................................ v
STATEMENT OF THE CASE ..................................................................................................... 1
ISSUE PRESENTED ................................................................................................................... 1
STATEMENT OF FACTS............................................................................................................ 2
     A. The Complainant's Version Of Events .................................................................... 2

     B. The Appellant's Version Of Events ......................................................................... 5

     C. Law Enforcement's Investigation Of the Incident ................................................. 9

SUMMARY OF THE ARGUMENT ............................................................................................ 11
ARGUMENT ............................................................................................................................ 12
          SOLE ISSUE: The trial court erred in not permitting defense counsel to go into
          the requirements of sex offender registration during closing arguments during
          the punishment phase, and in doing so effectively denied the Appellant his
          right to counsel. ......................................................................................................... 12
     A. Error Is Preserved For Appellate Review, As the Appellant Received an Ad-
        verse Ruling and Supplemented the Record With an Offer Of Proof ............... 13

     B. Counsel Is Entitled To Argue Correct Statements Of Law To the Jury And
        Sexual Assault Requires Lifetime Registration As a Sex Offender ..................... 16

               a. Arguments to the jury may contain correct statements of the law, even if
                  the argued law is not included in the jury charge ...................................... 16

               b. A conviction for sexual assault requires lifetime registration as a sex of-
                  fender .............................................................................................................. 18




                                                                  iii
     C. The Trial Court Abused Its Discretion In Prohibiting Defense Counsel From
        Arguing the Consequences Of Becoming a Sex Offender When Her Argument
        Was a Correct Statement Of the Law..................................................................... 19

     D. The Appellant Was Harmed By the Trial Court's Ruling, As the Jury Assessed
        Less Than the Maximum Punishment, Despite the State's Request To Do So
        To Protect the Community...................................................................................... 24

PRAYER ................................................................................................................................... 26
CERTIFICATE OF SERVICE .................................................................................................... 27
CERTIFICATE OF COMPLIANCE ........................................................................................... 28




                                                                     iv
                                              INDEX OF AUTHORITIES

Cases

Corpus v. State, 30 S.W.3d 35 (Tex. App.—Houston [14th Dist] 2000, pet.

  ref’d)….......... ......................................................................................................... 17, 18, 21

Dang v. State, 154 S.W.3d 616 (Tex. Crim. App. 2005)..................................................... 20

Davis v. State, 329 S.W.3d 798 (Tex. Crim. App. 2010) .................................................... 16

Johnson v. State, 698 S.W.2d 154 (Tex. Crim. App. 1985) ................................................. 17

Jones v. State, 725 S.W.2d 770 (Tex. App.—Dallas 1987, pet. ref’d) ............................... 22

Lancaster v. State, 772 S.W.2d 137 (Tex. App.—Tyler 1988, no pet.) ............................. 20

Lemos v. State, 130 S.W.3d 888 (Tex. App.—El Paso 2004, no pet.) .............................. 24

Mays v. State, 285 S.W.3d 884 (Tex. Crim. App. 2009) ..................................................... 16

McGee v. State, 774 S.W.2d 229 (Tex. Crim. App. 1989) .................................................. 17

Nzewi v. State, 359 S.W.3d 829 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)...16,

  17, 19

State v. Prestwood, 711 S.E.2d 875, 2011 WL 1467627 (N.C. Ct. App. 2011) ........... 20, 21

State v. Renteria, 977 S.W.2d 606 (Tex. Crim. App. 1998) .......................................... 17, 21

Turner v. State, 87 S.W.3d 111 (Tex. Crim. App. 2002) ..................................................... 17

Ward v. State, 143 S.W.3d 271 (Tex. App.—Waco 2004, no pet.) .................................. 23

Williams v. State, 575 S.W.2d 30 (Tex. Crim. App. 1979) ................................................. 24




                                                                  v
Statutes & Rules

Tex. Code Crim. Proc. art. 37.07 ................................................................................. 21, 22

Tex. Code Crim. Proc. art. 42.12 ....................................................................................... 23

Tex. Code Crim. Proc. art. 62.001 ................................................................................ 12, 18

Tex. Code Crim. Proc. art. 62.005 ...................................................................................... 19

Tex. Code Crim. Proc. art. 62.051 ...................................................................................... 18

Tex. Code Crim. Proc. art. 62.055 ...................................................................................... 18

Tex. Code Crim. Proc. art. 62.101 ...................................................................................... 18

Tex. Code Crim. Proc. art. 62.102 ................................................................................ 18, 25

Tex. R. App. Proc. Rule 33.1 .............................................................................................. 15

Tex. R. App. Proc. Rule 44.2 .............................................................................................. 24

Tex. Penal Code § 12.33 ................................................................................................ 19, 23

Tex. Penal Code § 12.35 ...................................................................................................... 19

Tex. Penal Code § 22.011 .................................................................................................... 23

Secondary Sources

Op. Tex. Att’y Gen. No. GA-0056, 2003 WL 1849299 (2003) ...................................... 19




                                                               vi
                              STATEMENT OF THE CASE

      The Harris County District Attorney’s Office charged Roy Vasquez (“Appel-

lant”) by indictment on August 8, 2014, with one count of aggravated sexual assault.

(C.R. at 7). Specifically, the Appellant was alleged to have placed his sexual organ in

the complainant’s anus and compelled the complainant to submit and participate by

threatening to use force and violence, while exhibiting a knife (a deadly weapon). Id.

      Voir dire began on February 9, 2015, and a twelve-person jury was empaneled

on that same day. (3 R.R. at 130-136). Following a two-day trial on guilt-innocence,

the jury returned a guilty verdict on the lesser-included offense of sexual assault. (5

R.R. at 121-122; C.R. at 134-135, 148).     The punishment phase began immediately

after the verdict was rendered, and the jury court assessed the Appellant’s punishment

at seventeen (17) years confinement in the Texas Department of Criminal Justice,

along with a $10,000 fine. (7 R.R. at 28-30; C.R. at 147-148). A timely Notice of Ap-

peal was filed by the Appellant and certified by the trial court on February 17, 2015.

(C.R. at 151-153). No post-trial motions were filed.

                                  ISSUE PRESENTED

             SOLE ISSUE: The trial court erred in not permitting defense
             counsel to go into the requirements of sex offender
             registration during closing arguments during the
             punishment phase, and in doing so effectively denied the
             Appellant his right to counsel.




                                           1
                                STATEMENT OF FACTS

      The complainant is a twenty-five year old female, who was twenty-two years

old on the date of the incident. (4 R.R. at 13-14). On the morning of December 8,

2009, at about 6:00 a.m., the complainant awoke to someone entering her bedroom.

She testified that she did not recognize this person—who was eventually identified as

the Appellant—as someone that she knew, but recalled that they were a male wearing

a jacket, blue shirt, and rosary. (4 R.R. at 18-19, 55-56, 58). As will be explained in

more detail, accounts differ as to whether this person had consent to be in the com-

plaint’s house and as to what occurred between them, but it was uncontested that the

Appellant had sexual contact with the complainant on December 8, 2009.

          A. The Complainant’s Version Of Events

      According to the complainant, the Appellant demanded money from the com-

plainant, took her cell phone, grabbed her by the hair, and then told the complainant

that she was pretty. At this point, the complainant testified that she felt a knife placed

against her neck and that the Appellant instructed her to remove her clothes. (4 R.R.

at 19-21). Even though she felt the knife, the complainant was not able to remember

whether or not she had ever actually seen a knife at any point. (4 R.R. at 52, 57-58, 77-

78, 82). When the complainant refused to remove her clothes, she claimed that the

Appellant used the knife to rip off her shirt and then pulled off her pajama pants. (4

R.R. at 22, 24-25). The complainant then had her vaginal area penetrated by the Ap-

pellant’s fingers, followed by having her anus penetrated by the Appellant’s penis. (4

                                            2
R.R. at 26-27). For about the next five minutes, the Appellant had sex with the com-

plainant in this manner until he ejaculated onto her legs. (4 R.R. at 28-30, 73). In the

complainant’s version of events, the Appellant was not wearing a condom, although

he had asked the complainant for one, which she handed to him, but that he did not

use. (4 R.R. at 62).

        The house’s landline phone then began to ring and the Appellant instructed the

complainant to answer it. On the other end of the line was the complainant’s boy-

friend and the complainant told him that she could not talk at the moment and that

she would call him back. This was not done at the prompting of the Appellant and the

complainant explained that “I did that on my own because I didn’t know – I could

barely talk.” (4 R.R. at 31-33). The same scene played out a second time, as the com-

plainant’s boyfriend called back, the complainant told him that she could not talk, and

then hung up the phone.1 (4 R.R. at 34-35).

        As the Appellant prepared to leave, he gathered up the Appellant’s laptop

computer, cell phone, and social security card. (4 R.R. at 35-36). The complainant told

the Appellant that she had to go to school, otherwise people would come looking for

her. In response, the Appellant instructed her to call whoever was supposed to pick



1
 The complainant’s boyfriend from 2009, Isaac Ramirez, testified that he had called the complainant
on the morning of December 9, 2009. Ramirez recounted that the complainant and he spoke on the
phone that morning only one time for about fifteen seconds and that it sounded like “she didn’t to
want talk to me, but she did or she couldn’t [sic]. I mean, I don’t know. It was just weird.” (5 R.R. at
88, 91).


                                                   3
her up. Following this instruction, the complainant called her sister and told her that

she needed to be picked up. (4 R.R. at 36-37). The Appellant then walked out of the

complainant’s bedroom, and the complainant waited for a time before she got dressed

and walked out of the bedroom as well. (4 R.R. at 37-38). The backdoor of the house

had been left open and unlocked, so the complainant assumed that the Appellant had

left. (4 R.R. at 39).

       Rather than call 911, the complainant ran out of the house to a nearby school

to try to find help. (4 R.R. at 39-40). A car passed by the complaint, who yelled at the

driver to stop. When the driver stopped the car, the complainant told the driver what

had happened and used the driver’s cell phone to call 911. The complainant had never

seen the driver before, did not know who it was, and has not seen the driver since

then. (4 R.R. at 40). An ambulance, law enforcement, and the complainant’s sister

then began to arrive at the complainant’s house a short time later. (4 R.R. at 41-42).

The ambulance transported the complainant to Memorial Hospital where a rape kit

examination was performed. (4 R.R. at 42).

       Members of the Houston Police Department interviewed the complainant on

two separate occasions and had her meet with an artist who created a sketch of the

Appellant. (3 R.R. at 44-48; 8 R.R. at 5-6 (State’s Exhibit 2)). Three years later in De-

cember 2012, the complainant tentatively identified the Appellant in a photo lineup

presented to her by the police. (4 R.R. at 71).




                                            4
          B. The Appellant’s Version Of Events

      The Appellant—who was seventeen years old at the time of the incident and

twenty-two during the trial—took the stand in his own defense. (5 R.R. at 7). During

his testimony, the Appellant admitted knowing the complainant and admitted that he

had sex with her on the morning of December 8, 2009, in the complainant’s bed-

room, but that this encounter was entirely consensual and that he did not have a

knife, nor did he make any threats. (5 R.R. at 22-23, 28-30, 35).

      In the Appellant’s version of events, he first encountered the complainant at

the Broad Mini Mart convenience store near his home towards the end of October

2009. (5 R.R. at 8, 16). As the Appellant pulled his car into the store’s parking lot, he

saw the complainant getting out of her own car. (5 R.R. at 11). Alexis Godinez is the

Appellant’s friend and was with him during the trip to the convenience store in the

passenger seat of the Appellant’s car. (5 R.R. at 9-12). The Appellant told Godinez

that he thought the complainant was pretty, and that he was going to attempt to go

talk to her. After the Appellant approached the complainant, he complimented her by

telling her she looked pretty, then asked if she had a boyfriend, to which the com-

plainant replied that she did not. (5 R.R. at 11-13). The Appellant then asked the

complainant for her phone number, but she instead asked to take the Appellant’s

phone number herself. The two then flirted with one another, made tentative plans to

get together at some point, and then went their separate ways. (5 R.R. at 13-15).




                                           5
        Alexis Godinez—the passenger who was with the Appellant when he first en-

countered the complainant—testified at trial and largely confirmed the Appellant’s

rendition of events in the Broad Mini Mart parking lot. The relationship between

Godinez and the Appellant has been a long one, as the two grew up together, but has

always remained strictly platonic. (4 R.R. at 292). Godinez recognized the complain-

ant’s face from seeing her around the neighborhood, and recounted what occurred

when the Appellant approached the complainant.(4 R.R. at 279-280). Once the Appel-

lant saw the complainant in the parking lot, Godinez recalled that the Appellant an-

nounced that he was going to attempt to talk to her. With Godinez’s encouragement,

the Appellant approached the complainant. The two of them began speaking, and

Godinez was close enough to them to hear most of their conversation. (4 R.R. at 285-

287). From what Godinez could hear, the complainant was receptive to the Appel-

lant’s advances, and inquired about the Appellant’s flashy car, complimented the Ap-

pellant’s looks, and asked the Appellant if he made a lot of money. (4 R.R. at 287-

288). As the two continued talking, Godinez heard the Appellant attempt to make

plans with the complainant, who told the Appellant that she was looking to smoke

some marijuana and have a good time. (4 R.R. at 288). The encounter ended when

Godinez saw the Appellant give the complainant his telephone number. (5 R.R. at

289).

        About a week-and-a-half after the Appellant and the complainant first met, the

complainant called the Appellant. The two made arrangements to meet up with one

                                           6
another at Brook Line Park near where they both lived. (5 R.R. at 16-17). The Appel-

lant was driven to the park by his sister, Donna Vasquez, because his car needed re-

pairs and was inoperable at the time. (4 R.R. at 307-309). When Donna Vasquez

dropped off the Appellant, she saw him walk up to the complainant. (4 R.R. at 309-

310).

        When the Appellant met up with the complainant at the park, they sat down

together at a bench in the park and spent some time talking and kissing. The Appel-

lant had brought some marijuana to the park, which he began smoking, although the

complainant did not want any for herself. (5 R.R. at 18-19). This entire encounter last-

ed about thirty-five to forty minutes before they left the park together on foot. The

complainant’s house was within walking distance of the park, and the Appellant

walked her home, but did not go into her house on that night. Id.

        The next encounter the Appellant had with the complainant was about a week

later when he saw the complainant walking in the neighborhood as he was driving by.

The Appellant stopped his car and offered to give her a ride, which she accepted and

had the Appellant drop her off at her house. (5 R.R. at 20-22, 60). Godinez testified

that she recalled seeing the Appellant driving his car with the complainant in it at

some point, but was not able to say where they were going or what they were doing.

(4 R.R. at 290).

        Concerning the events at the center of the case, the Appellant testified that the

complainant called him early in the morning on December 9, 2009, and invited him to

                                            7
come over to her house. (5 R.R. at 23-24). Although the Appellant’s car was available,

it was blocked in by other cars and he elected to walk to the complainant’s house,

which was about twenty minutes away from where he lived by foot. (5 R.R. at 25-26,

61). Once he arrived at the complainant’s house, the Appellant was allowed in the

front door by the complainant who then took him to her bedroom. As the two start-

ed undressing and engaging in some “messing around,” the house phone rang and the

complainant answered it. The Appellant described the complainant as acting angry

with the person on the other end of the line before she hung up the phone. (5 R.R. at

27-28, 64). From there, the complainant gave the Appellant a condom and the two

started to attempt to have sex. The Appellant testified that although he initially at-

tempted to penetrate the complainant’s anus, he found it difficult, it made him un-

comfortable, and it did not feel good. (5 R.R. at 28-30, 69-70). He therefore began to

attempt to penetrate the complainant’s vagina. But before the Appellant was able to

do this, he ejaculated on the complainant’s legs. (5 R.R. at 31-32, 71).

      For the second time, the house phone rang, but the complainant did not an-

swer it on this occasion as her and the Appellant were attempting to have sex. (5 R.R.

at 30). After the Appellant ejaculated, someone started knocking on the front door of

the complainant’s house. The complainant told the Appellant that it was her boy-




                                            8
friend2 and that the Appellant needed to leave the house, which he did through the

home’s backdoor. (5 R.R. at 32-33).

          When an officer came to the Appellant and asked for a buccal swab for a DNA

sample, the Appellant voluntarily agreed to it and was shocked to learn the nature of

the allegations against him. He agreed to cooperate with law enforcement’s investiga-

tion. (5 R.R. at 40-41).

             C. Law Enforcement’s Investigation Of the Incident

          Officer Juan Carrillo with the Houston Police Department was the first mem-

ber of law enforcement to respond to the complainant’s 911 call at about 7:45 a.m.

When he arrived, Carrillo saw the complainant outside the house and described her as

appearing distraught. (4 R.R. at 94). On the left side of the complainant’s neck, Carril-

lo saw what he described as a scratch. The size of the scratch lead Carrillo to believe

that it was could have been inflicted by a fingernail. (4 R.R. at 97).

          Inside of the house, Carrillo noted that the complainant’s bedroom was in a

state of disarray and found an unopened condom at the foot of the bed. (4 R.R. at 99-

100). The rear door to the house had been left open and a glass window had been

broken, both of which were found in the kitchen. (4 R.R. at 101-102). No pictures of

either the window or the door were taken during the investigation. (4 R.R. at 113).




2
    Isaac Ramirez denied going to the complainant’s house on December 9, 2009. (5 R.R. at 88-89).


                                                   9
       Dana Oldham is the forensic nurse examiner at Memorial Hermann Hospital

who conducted the sexual assault examination of the complainant on December 8,

2009. (4 R.R. at 123-124). Some thin superficial abrasions were found on the com-

plainant’s neck measuring 0.2 by 5 centimeters (or 0.07 by 1.9 inches in imperial

units). (4 R.R. at 130-131, 133, 166-167). The complainant reported some tenderness

on her left inner thigh. (4 R.R. at 136). Oldham elected not to conduct a speculum ex-

amination of the complainant’s genitals, as no penetration of her vagina had been re-

ported. However, some external injuries on the complainant’s genitalia were discov-

ered, including a 0.3 centimeter tear on her labia minora and a 0.7 centimeter tear on

her anus, both of which she described as superficial. (4 R.R. at 136-138, 158-159).

Swabs were taken of the complainant’s anus, vagina, and lips. (4 R.R. at 141-142).

       Officer Darcus Shorten is an investigator with the Houston Police Department

and was assigned to do follow-up investigation in the complainant’s case in late March

of 2010. (4 R.R. at 169-173). Through the use of DNA evidence, Shorten identified

the Appellant as a suspect. (4 R.R. at 173). A photospread featuring the Appellant was

created by Shorten in October of 2012 and shown to the complainant in December of

2012. (4 R.R. at 174-177). Of the six pictures presented to her, the complainant identi-

fied two people—one of whom was the Appellant—as the person who had assaulted

her. (4 R.R. at 180-181). With this identification, Shorten obtained a warrant for the

Appellant’s arrest. (4 R.R. at 182).




                                          10
      Priscilla Hill is a DNA analyst with the Harris County Institute of Forensic Sci-

ences and conducted analysis of the genetic materials collected in the Appellant’s case.

(4 R.R. at 243). Hill concluded that the Appellant could not be excluded as a source

of sperm found on swabs of the complainant. (4 R.R. at 260-264).

                            SUMMARY OF THE ARGUMENT

      The Appellant’s sole point of error revolves around the punishment phase of

his trial only. During closing arguments at the punishment phase, defense counsel

sought to argue a correct and true statement of the law to the jury, but the State ob-

jected to this line of argument and the trial court sustained the objection. Specifically,

defense counsel sought to argue that as a consequence of the Appellant’s conviction

for sexual assault, he would have to register for the rest of his life as a sex offender

and would be subject to further criminal penalties if he failed to meet the registration

requirements laid out in chapter 62 of the Code of Criminal Procedure.

      Despite the fact that defense counsel’s argument tracked the language of cer-

tain portions of chapter 62, the trial court ruled that there were no facts in evidence

before the jury that would support this argument. But the trial court’s ruling in sus-

taining this objection was error, as counsel is permitted to argue correct statements of

the law before the jury that are relevant to the case, even if that law is not included in

the jury charge. Although no Texas appellate court has apparently ruled before on this

issue, at least one foreign jurisdiction court was held that under this exact scenario, a




                                           11
defense attorney is entitled to inform the jury of the fact that a defendant will have to

register as a sex offender as a consequence of a guilty verdict.

       The punishment that the jury ultimately assessed was less the maximum sen-

tence, despite the State’s request for the jury to assess the maximum possible sen-

tence. Harm to the Appellant is demonstrated here, as there is a reasonable possibility

the jury would have assessed an even lower sentence had it been fully and fairly in-

formed of the sex offender registration requirements that the Appellant was subject to

as a result of his conviction.

                                      ARGUMENT

              SOLE ISSUE: The trial court erred in not permitting
              defense counsel to go into the requirements of sex
              offender registration during closing arguments during the
              punishment phase and in doing so effectively denied the
              Appellant his right to counsel.
       There can be no doubt that as a consequence of his conviction in this case, the

Appellant will be required to register as a sex offender for the rest of his life. See Tex.

Code Crim. Proc. art. 62.001(5)(A) & (6)(A) (including sexual assault under the defini-

tion of a “reportable conviction or adjudication” and as a “sexually violent offense”);

see also Tex. Code Crim. Proc. art. 62.101(a)(1) (requiring lifetime registration for of-

fenders convicted of a sexually violent offense). The judgment in the Appellant’s case

notes that the sex offender registration requirements found in chapter 62 of the Texas

Code of Criminal Procedure apply to him. (C.R. at 148). Despite the fact that lifetime

sex offender registration was an automatic and immutable consequence of the Appel-


                                            12
lant’s conviction, the trial court sustained multiple objections from the State during

defense counsel’s closing argument in the punishment phase informing the jury of the

sex offender registration requirements that the Appellant would face. (7 R.R. at 11-

12). The trial court’s ruling in this respect constituted reversible error.

          A. Error Is Preserved For Appellate Review, As the Appellant Re-
             viewed an Adverse Ruling and Supplemented the Record With an
             Offer Of Proof
       During defense counsel’s closing argument to the jury in the punishment phase

of trial, the following occurred near the end of defense counsel’s argument to the jury:

       [Defense counsel]: What does it mean to get convicted on a sexual as-
                          sault case? What does it mean to Roy even before
                          you assess punishment in this case? It means a life-
                          time of registration as a sexual offender, basically un-
                          til the day he dies. Every time he moves houses, he
                          will be required to register -- pre-register seven days
                          before.
       [The State]:         Objection, Your Honor. This is all facts not in evi-
                            dence.
       [Trial court]:       Sustained. Please stay within the evidence.
       [Defense counsel]: Sexual registration will also require --
       [The State]:         Objection, Your Honor, this is facts not in evidence.
       [Trial court]:       Sustained.
(7 R.R. at 11).

       Defense counsel proceeded to move on to the remainder of her argument and

concluded shortly thereafter. (7 R.R. at 14). However, after the jury began its punish-

ment deliberations and before it returned its punishment verdict, defense counsel

placed an offer of proof on the record. Before allowing defense counsel to make an


                                             13
offer of proof, the trial court reiterated its position that “it is quite clear, the law says

you’re only allowed to argue to a jury facts that are in evidence and reasonable infer-

ences there from.” (7 R.R. at 22). It was the trial court’s position that since there were

no evidence or witnesses who delivered testimony concerning sex offender registra-

tion requirements that there was “not any shred of evidence that was presented that

allows you to argue that.” (7 R.R. at 23). But the trial court did acknowledge that “I’m

not saying what you were going to say is not true. You’re right. They do have to regis-

ter as a sex offender.” Id.

       In her offer of proof, defense counsel articulated what her closing argument

would have consisted of had the trial court not sustained the State’s objection in the

two instances quoted above. Specifically, defense counsel would have argued the fol-

lowing:

       [Defense counsel]: Being a sex offender essentially means lifetime regis-
                          tration, basically until the day he dies. Every time he
                          moves residences, he would be required to register.
                          Before he moves – seven days before he moves and
                          seven days after the move. If he were to go some-
                          where for two days in three months, he has to report
                          to the authorities of that city and county as well. And
                          failure to comply with the registration requirements
                          is another felony. And depending on the circum-
                          stances of that particular case, the range of punish-
                          ment can be anywhere between 180 days to 20 years
                          in prison for each violation.
                              Once he registers, the police will automatically be
                              provided with his sex offender status upon request
                              when they run a check on his driver’s license or his
                              license plate.


                                             14
                           Additionally, the Texas Attorney General’s Office
                           authorizes local governments to broadcast infor-
                           mation about registration of sex offenders to local
                           cable television news because it’s public information.
                           His name will also be on the Internet as a registered
                           sex offender.
(7 R.R. at 24-25).

       At the conclusion of defense counsel’s offer of proof, the trial court again stat-

ed its position that this argument was not allowed and explain its logic thusly:

       [Trial court]:      All right. And again, I heard absolutely zero evidence
                           of any of that information presented to this jury to
                           allow them to consider that. And in my mind this --
                           allowing the defense to be able to say those things
                           with no evidence being presented is almost -- even
                           though all that may well be true, is almost the same
                           thing as allowing the State to get up then and even
                           though they did not present evidence of prior juve-
                           nile adjudications, which was given notice of, or
                           misconduct in the hail, which they didn’t present any
                           evidence of -- to get up and say oh, yeah, by the way,
                           he had all of this stuff, which is probably true. It’s
                           the same thing --
       (7 R.R. at 25).
       Because the State made an objection during closing arguments, stated the

grounds it was basing its objection on, and the trial court ruled on the State’s objec-

tion, error has been preserved for appellate review. It is also apparent from the trial

court’s comments on the record that it understood the nature of the State’s objection

and agreed with the legal reasoning presented by the State. See Tex. R. App. Proc.

33.1(a). Additionally, because defense counsel made an offer of proof as to what her



                                           15
argument would have consisted of had the trial court overruled the State’s objection,

the record contains sufficient information to allow this Court to determine whether

the trial court’s exclusion of this argument was erroneous and harmful. Mays v. State,

285 S.W.3d 884, 890 (Tex. Crim. App. 2009) (quoting 1 Steven Goode, et al., 1 Texas

Practice Series: Guide to the Texas Rules of Evidence § 103.3 (2d ed. 1993)).

           B. Counsel Is Entitled To Argue Correct Statements Of Law To the
              Jury And Sexual Assault Requires Lifetime Registration As a Sex
              Offender
       When reviewing a trial court’s ruling on objections made during the course of

arguments to the jury, an abuse of discretion standard is applied. See Davis v. State, 329

S.W.3d 798, 825 (Tex. Crim. App. 2010). However, when the objected to argument

concerns whether a party misstated the law during the jury argument, appellate courts

review de novo whether the law was presented correctly. Nzewi v. State, 359 S.W.3d 829,

841 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Thus, there are two layers of

review that must be employed. First, this Court must determine whether the trial

court abused its discretion in sustaining the State’s arguing facts not in evidence objec-

tion. And second, whether the argument defense counsel proffered was a misstate-

ment of the law.

           a. Arguments to the jury may contain correct statements of the law,
              even if the argued law is not included in the jury charge
       As a general matter, the trial court has broad discretion in controlling the scope

of closing arguments, but a trial court may not prevent defense counsel from making



                                               16
a point essential to the defense. Nzewi, 359 S.W.3d at 841. The improper denial of a

jury argument may constitute a denial of the right to counsel if the jury argument is

one the defendant is entitled to make. McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim.

App. 1989); see also Johnson v. State, 698 S.W.2d 154, 166 (Tex. Crim. App. 1985). But

no party is entitled to argue an incorrect statement of law before the jury. Id.

       The Court of Criminal Appeals has “long held that ‘error in jury argument does

not lie in going beyond the court’s charge, but in stating law contrary to the same.’

That is, there is no error in correctly arguing the law, even if the law is not included in

the court’s charge.” State v. Renteria, 977 S.W.2d 606, 608 (Tex. Crim. App. 1998) (quot-

ing Mauldin v. State, 628 S.W.2d 793, 795 (Tex. Crim. App. 1982)); see also Turner v. State,

87 S.W.3d 111, 117-18 (Tex. Crim. App. 2002) (holding that prosecutor’s argument to

the jury that they were to consider defendant’s self-defense claim from the viewpoint

of an “ordinary and prudent person” and not from the standpoint of a “psychopath

or a sociopath” was permissible as it did not misstate self-defense law). Thus, in Cor-

pus v. State, 30 S.W.3d 35 (Tex. App.—Houston [14th Dist] 2000, pet. ref’d), the State

could properly assert in closing arguments that two people could possess a weapon

per the law of parties, although no law of parties charge was included in the jury

charge. Much like the present case, defense counsel in Corpus objected that this argu-

ment was outside the facts and outside the charge, but the trial court overruled this

objection. On appellate review, the Fourteenth Court of Appeals held that the State




                                            17
was entitled to argue matters of law before the jury so long as the law was correctly

stated, even if the legal issue was not submitted to the jury in its charge. Id. at 41-42.

          b. A conviction for sexual assault requires lifetime registration as a
             sex offender
       Chapter 62 of the Texas Code of Criminal Procedure governs the registration

of sex offenders. Because sexual assault is a reportable conviction, the requirements of

Chapter 62 became applicable to the Appellant following his conviction in the guilt-

innocence phase of trial. Tex. Code Crim. Proc. art. 62.001(5)(A). Further, the Appel-

lant was subject to lifetime registration as a sex offender, as sexual assault is catego-

rized as a sexually violent offense.      Tex. Code Crim. Proc. art. 62.001(6)(A) &

62.101(a)(1).

       When a person required to register as a sex offender moves residences, they are

required to register and confirm their new address within seven days with local law

enforcement. Tex. Code Crim. Proc. art. 62.051(a). Similarly, law enforcement must

be notified seven days in advance when a required registrant intends to change his ad-

dress. Tex. Code Crim. Proc. art. 62.055(a).

       The failure to comply with any of the mandatory registration requirements em-

bodied in Chapter 62 ranges anywhere from a state jail felony to a second degree felo-

ny for a first offense. Tex. Code Crim. Proc. art. 62.102(b). The maximum penalty for

a state jail felony is up to 180 days confinement, while the maximum penalty for a




                                             18
second degree felony is up to 20 years confinement. Tex. Penal Code §§ 12.33 &

12.35.

         The Texas Department of Public Safety is required to publicly post on a web-

site a sex offender’s picture and vital information. Tex. Code Crim. Proc. art.

62.005(c). Additionally, a sex offender’s registration is tied to any licenses—

professional or otherwise—he may carry. Tex. Code Crim. Proc. art. 62.005(e, f, g).

When any peace officer looks up a sex offender’s driver’s license number or a licenses

plate tied to a car the registrant owns, all information relating to the registrant’s status

as sex offender becomes immediately available to the peace officer. Tex. Code Crim.

Proc. art. 62.006. All information regarding a sex offender’s registration—with certain

limited exceptions, such as social security number—is public information and may be

broadcast on television. Tex. Code Crim. Proc. art. 62.005(a); see also Op. Tex. Att’y

Gen. No. GA-0056, 2003 WL 1849299 (2003).

         While the above information may seem axiomatic, it is important to note that

these statutes track the language of the closing argument that defense counsel was

prohibited from delivering, as outlined by defense counsel’s offer of proof. (7 R.R. at

24-25).

            C. The Trial Court Abused Its Discretion In Prohibiting Defense
               Counsel From Arguing the Consequences Of Becoming a Sex Of-
               fender When Her Argument Was a Correct Statement Of the Law
         The argument proffered by defense counsel in her offer of proof was a correct

statement of the law regulating the registration of sex offenders as prescribed in


                                            19
Chapter 62 of the Texas Code of Criminal Procedure. (7 R.R. at 24-25). And although

a trial court has broad discretion to control closing arguments to the jury, this discre-

tion is not completely unfettered. Nzewi, 359 S.W.3d at 841. For example, it is error

for a trial court to not permit defense counsel to show a videotape during closing ar-

guments which had earlier been admitted into evidence by the State. Lancaster v. State,

772 S.W.2d 137, 139-40 (Tex. App.—Tyler 1988, no pet.). Likewise, a trial court may

not exercise its broad discretion in presiding over arguments before the jury to limit

the amount of time permitted for argument to an unreasonably short amount of time.

Dang v. State, 154 S.W.3d 616, 622 (Tex. Crim. App. 2005). The Appellant would now

ask this court to hold that it is an abuse of the trial court’s discretion to control the

scope of closing arguments when a trial court does not permit counsel to argue a cor-

rect statement of law before the jury that is applicable to the case, bit which is not

contained in the jury charge. A review of Texas case law has not uncovered a case

where this issue has been previously addressed, apparently making this an issue of first

impression. However, at least one foreign jurisdiction appellate court has addressed

this exact issue and held that such an argument was permissible.

      In the North Carolina case of State v. Prestwood, 711 S.E.2d 875, 2011 WL

1467627 (N.C. Ct. App. 2011), an analogous situation presented itself. In Prestwood,

the defendant was charged with three counts of sexual battery and defense counsel

attempted to inform the jury during closing arguments that the defendant would be

required to register as a sex offender if he was convicted. Id. at *3. The prosecution

                                           20
objected to this line of argument, which the trial court sustained. On appellate review,

the North Carolina Court of Appeals held “the defendant’s trial counsel had the right

to inform the jury of the consequences of a conviction for sexual battery, including

the mandatory registration requirements, and it was error for the trial court to sustain

the State’s objection.” Id. The appellate court’s decision was based on North Carolina

case law that had previously held that counsel is permitted to “read or state to the jury

a statute or other rule of law relevant to such case, including the statutory provision

fixing the punishment for the offense charged.” Id. (quoting State v. Britt, 204 S.E.2d

817, 829 (N.C. 1974)). The precedent relied on by the North Carolina Court of Ap-

peals in Prestwood is comparable to the Texas rule that a closing argument may contain

a correct statement of the law, even if it is not included in the jury charge. Renteria, 977

S.W.2d at 608; Corpus, 30 S.W.3d at 41-42. Ultimately, the North Carolina Court of

Appeals held that the trial court’s erroneous ruling was harmless, as there was over-

whelming evidence against the defendant. But nevertheless, the trial court’s limitation

of defense counsel’s closing argument regarding sex offender registration was in error.

Prestwood, 2011 WL 1467627, at * 3-4.

       A comparison can be drawn between the facts of the present case and cases

that have addressed the use by the State of parole laws in closing arguments at pun-

ishment. It must be noted initially that there is a statutory prohibition on the jury’s

consideration of parole laws in assessing punishment. See Tex. Code Crim. Proc. art.

37.07 § 4 (providing that the jury should be instructed that they are not to consider

                                            21
the extent to which good conduct time may be awarded to or forfeited by a particular

defendant or the manner in which the parole laws may be applied to a particular de-

fendant). Any jury argument that encourages the jury to ignore this statutory instruc-

tion and consider parole laws is undoubtedly impermissible. See Jones v. State, 725

S.W.2d 770, 772 (Tex. App.—Dallas 1987, pet. ref’d) (holding that prosecutor’s argu-

ment to the jury to act contrary to the prohibition on considering parole law in as-

sessing punishment “was error, was manifestly improper, and was so prejudicial that

even had an objection been raised, an instruction to disregard would not have cured

the error”).

       However, no similar statutory prohibition exists against informing juries that

someone convicted of a reportable sexual offense will have to register as a sex offend-

er, or of what the other statutorily prescribed consequences of registration entail. The

presence of a statute specifically preventing the jury from considering parole laws

would indicate that but for this statute, such an argument would otherwise be permis-

sible as it would constitute a correct statement of the law.

       Put simply, it is inconsequential whether or not there was evidence presented

during the punishment phase of the Appellant’s newfound requirement to register as a

sex offender, or the other registration requirements that the Appellant would be sub-

ject to. The trial court’s ruling in sustaining the State’s objection to defense counsel’s

argument would be akin to not allowing counsel to argue for a suggested term of con-

finement in prison on the grounds that no evidence was presented at the punishment

                                           22
phase that there are any prisons in Texas, despite the fact that confinement in prison

is a statutorily prescribed consequence of the Appellant’s conviction. See Tex. Penal

Code §§ 12.33(a) & 22.011(f) (punishing sexual assault as a second degree felony and

setting the punishment range for a second degree felony at 2 to 20 years “imprison-

ment in the Texas Department of Criminal Justice”). The Appellant’s duty to register

a sex offender as a consequence of his conviction was a fait accompli in the same way

that his guaranteed imprisonment was once the jury rendered a guilty verdict for sexu-

al assault.3

       Because defense counsel was entitled to make an argument to the jury that con-

sisted of a correct statement of the law—even if that law was not contained in the jury

charge—and because defense counsel’s proffered argument was a correct statement of

the law, the trial court abused its discretion in sustaining the State’s objection and

prohibiting defense counsel from continuing her proffered closing argument.




3
  No Motion for Community Supervision was filed in the Appellant’s case. But even if such a mo-
tion had been filed, the Appellant was not eligible for community supervision due to his prior felony
convictions, which the Appellant stipulated to. (C.R. at 106-17; 6 R.R. at 6, 8-11). See Tex. Code
Crim. Proc. art. 42.12 § 4(d)(3) & (e); Ward v. State, 143 S.W.3d 271, 275 (Tex. App.—Waco 2004, no
pet.) (“[W]e conclude that a defendant must prove by a preponderance of the evidence that he or
she has no prior felony convictions to be eligible for community supervision.”). This necessarily
means that the Appellant would have to be sentenced to a term of imprisonment as a consequence
of his conviction.


                                                 23
          D. The Appellant Was Harmed By the Trial Court’s Ruling, As the
             Jury Assessed Less Than the Maximum Punishment, Despite the
             State’s Request To Do So To Protect the Community
      Because the improper denial of a jury argument which defense counsel is enti-

tled to make served to deny the Appellant his right to counsel, this error rises to the

level of constitutional error and must be evaluated for harm under Texas Rules of

Appellate Procedure 44.2(a). See Lemos v. State, 130 S.W.3d 888, 892-93 (Tex. App.—

El Paso 2004, no pet.) (holding trial court’s error in preventing defense counsel from

arguing a legitimate inference form the evidence was harmful under Rule 44.2(a)’s

constitutional error standard; also noted that improper argument by a prosecutor

would be evaluated under Rule 44.2(b)’s harmless error standard, as such a situation

did not constitute denial of a defendant’s right to counsel). Under this standard, rever-

sal is required “unless the court determines beyond a reasonable doubt that the error

did not contribute to the conviction or punishment.” Tex. R. App. Proc. 44.2(a).

      In her closing argument to the jury, the prosecutor for the Sate made a plea for

law enforcement in that she urged the jury to sentence the Appellant to the maximum

possible punishment “for your community.” (7 R.R. at 21). While it has long been the

case that such arguments in closings are permissible, Williams v. State, 575 S.W.2d 30,

33-34 (Tex. Crim. App. 1979) (“It is a proper argument that a sentence ought to deter

crime and therefore protect the community.”), the trial court’s ruling prevented the

jury from knowing that the sex offender registration requirements the Appellant was

subject to would act as a further protection for the community. As defense counsel


                                           24
would have informed the jury, the Appellant would constantly be under the threat of a

second degree felony if he failed to comply with the sex offender registration re-

quirements. (7 R.R. at 24); Tex. Code Crim. Proc. art. 62.102(b). This left the jury with

the false impression that the only way it could protect the community was to sentence

the Appellant to a lengthy prison term.

      “A defendant is entitled to be convicted upon a correct statement of the law.”

Hutch v. State, 922 S.W.2d 166, 174 (Tex. Crim. App. 1996). In this case, the trial court

prevented the Appellant from having his punishment assessed upon a full and correct

statement of the law. Because the jury assessed less than the maximum amount of im-

prisonment that could have been levied on the Appellant—despite the State’s request

that the jury assess the maximum punishment of 20 years, (7 R.R. at 21-22)— there is

a reasonable doubt that had the jury been informed of the sex offender registration

requirements the Appellant would be subject to, they would have assessed an even

lower punishment.




                                           25
                                       PRAYER

      Roy Vasquez asks this Honorable Court to reverse the jury’s assessment of

punishment for the offense of sexual assault and remand the case to the trial court for

a new proceeding on punishment only.


                                                     Respectfully submitted,
                                                     ALEXANDER BUNIN
                                                     Chief Public Defender
                                                     Harris County, Texas


                                                     /s Mark Kratovil
                                                     MARK KRATOVIL
                                                     Assistant Public Defender
                                                     Texas Bar Number 24076098
                                                     1201 Franklin Street, 13th Floor
                                                     Houston, Texas 77002
                                                     Telephone: (713) 274-6728
                                                     Facsimile: (713) 437-4339
                                                     mark.kratovil@pdo.hctx.net




                                          26
                              CERTIFICATE OF SERVICE

      I certify that I provided a copy of the foregoing brief to the Harris County

District Attorney’s appellate division by electronic delivery through eFile Texas on July

31, 2015.

                                                      /s Mark Kratovil
                                                      MARK KRATOVIL




                                           27
                           CERTIFICATE OF COMPLIANCE

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

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

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

contains 6,510 words printed in a proportionally spaced typeface.

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

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

3.    Upon request, undersigned counsel will provide an electronic version of this

brief and/or a copy of the word printout to the Court.

4.    Undersigned counsel understands that a material misrepresentation in complet-

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

9.4(j), may result in the Court's striking this brief and imposing sanctions against the

person who signed it.

                                                /s Mark Kratovil
                                                MARK KRATOVIL




                                           28
