                                                                           ACCEPTED
                                                                      03-14-00094-CR
                                                                             4748960
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                  4/2/2015 2:53:14 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
             No. 03-14-00094-CR

                     In the                          FILED IN
                                              3rd COURT OF APPEALS
Court of Appeals for the Third District of Texas AUSTIN, TEXAS
                   at Austin                  4/2/2015 2:53:14 PM
       ___________________________              JEFFREY D. KYLE
                                                    Clerk
               No. 13-1008-K26
       In the 26th Judicial District Court
           Williamson County, Texas
      ____________________________

       WILLIAM ALBERT MOWER
                Appellant
                   v.
         THE STATE OF TEXAS
                Appellee
     _____________________________

      STATE’S BRIEF IN RESPONSE
     _____________________________

                                                       Jana Duty
                                                District Attorney
                                       Williamson County, Texas

                                                  John C. Prezas
                                        State Bar No: 24041722
                                      Assistant District Attorney
                                  405 Martin Luther King, Box 1
                                      Georgetown, Texas 78626
                                                 (512) 943-1234
                                           (512) 943-1255 (fax)
                                              jprezas@wilco.org




     ORAL ARGUMENT REQUESTED
                       i
            I.   STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rules of Appellate Procedure 39.1 and 39.7, Appellant

has requested oral argument in this case. Therefore, to preserve its right to argue,

the State requests oral argument although the State believes that the facts and legal

arguments are adequately presented in the briefs and record, and that the decision

process would not be significantly aided by oral argument.




                                          ii
                                      II.     TABLE OF CONTENTS




I. STATEMENT REGARDING ORAL ARGUMENT ........................................ ii
II. TABLE OF CONTENTS .................................................................................. iii
III. INDEX OF AUTHORITIES .......................................................................... iv
IV.        STATEMENT OF FACTS ...............................................................................1
  A. FACTS RELATED TO OFFENSE ITSELF ...................................................1
  B. FACTS RELATED TO ADMISSION OF EVIDENCE..................................4
V. SUMMARY OF THE ARGUMENT ..................................................................7
VI.        ARGUMENT....................................................................................................7
  A. ISSUE 1: THE STATUTE PURSUANT TO WHICH APPELLANT WAS
  CONVICTED IS CONSTITUTIONAL .................................................................7
   i. Standard of Review .......................................................................................7
      ii. Constitutional as Applied to Appellant .........................................................9
      iii. Constitutional on its Face ............................................................................12
  B. ISSUES 2-3: STATE’S EXHIBIT 5 AND STATE’S EXHIBIT 6 WERE
  PROPERLY ADMITTED ....................................................................................15
      i.     Standard of Review .....................................................................................15
      ii. Existing Precedent Gives Wide Latitude in Linking Appellant to Priors ...15
      iii. State’s Exhibit 7 Clearly Identifies Appellant ............................................17
      iv. The Evidence Sufficiently Links Appellant to State’s Exhibit 6 ................18
      v. The Evidence Sufficiently Links Appellant to State’s Exhibit 5 ................20
VII. PRAYER ........................................................................................................22
CERTIFICATE OF COMPLIANCE .......................................................................22
CERTIFICATE OF SERVICE ................................................................................22




                                                            iii
                                   III.      INDEX OF AUTHORITIES


                                                           CASES
Broadrick v. Oklahoma, 413 U.S 601 (1973) ................................................... 12, 13
Bynum v. State, 767 S.W. 2d 769, 774 (Tex. Crim. app. 1989) ................................9
Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007,
  pet. Ref’d) ...............................................................................................................9
Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim.App. [Panel Op.]1979) .....................9
Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988) .........................14
Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) ...............................................8
Ex Parte Warren, 353 S.W.3d 490, 493-495 (Tex. Crim. App. 2011)....................16
Flowers v. State, 220 S.W.3d 919 (Tex. Crim. App. 2007) ............................. 15, 16
in re Shaw, 204 S.W.3d 9, 15 (Tex.App—Texarkana 2006, pet. ref’d) ..................12
Maloney v. State, 294 S.W.3d 613, 625-629 (Tex.App.—Houston [1st Dist.] 2009,
  pet. Ref’d) ............................................................................................ 9, 12, 13, 14
Montgomery v. State, 810 S.W.2d 372, 380, 391 (Tex. Crim. App. 1990) .............15
New York v. Ferber, 458 U.S. 747 (1982) ...............................................................12
Parker v. State, 985 S.W.2d 460,464 (Tex.Crim.App. 1999) .................................14
Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) .................................7
State v. Holcombe, 187 S.W.3d 496 (Tex. Crim. App. 2006) .................................13
State v. Salinas 892 SW2d 9, 10-11 (Tex. App.—Houston [1st. Dist.] 1997, pet.
  Ref’d) ......................................................................................................................7
U.S. v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) ..........................................8
U.S. v. Williams, 553 U.S. 285, 297 (2008) ...............................................................8




                                                               iv
TO THE HONORABLE COURT OF APPEALS:

                         IV.    STATEMENT OF FACTS

The state wishes to clarify the following facts to supplement those addressed in

Appellant’s brief.

                      A. FACTS RELATED TO OFFENSE ITSELF

      The site Appellant used to chat with a person he thought was fourteen year

old girl was MocoSpace, a legitimate site that allows users to start a chat based on

zip code. R.R. vol. 5 p. 23. Adults do use MocoSpace when seeking romantic

relationships.   R.R. vol. 5 p. 23. However, the only age restriction is that a

MocoSpace user must input a date of birth that indicates they are 18. R.R. vol. 5 p.

19-20. There are no background investigations or other efforts to verify whether or

not the birthdate input is accurate. R.R. vol. 5 p. 19-20.

      The profile, “sammylopez”, Sergeant Rodgers created and used to chat with

Appellant did list an age of 22. R.R. vol. 5 p. 25, 27. However, Rodgers took

several steps to let Appellant know that the person with whom Appellant was

chatting was indeed a underage child. Rodgers chatted with Appellant a week

prior to the chats recorded and entered into evidence in this case. R.R. vol. 5 p. 25.

In this prior chat, Rodgers identified himself as a 14-year-old girl and updated his

profile, the same one that showed an age of 22, to indicate the girl was grounded

and was in trouble with her mom. R.R. vol. 5 p. 25. Rodgers did this specifically


                                           1
to make clear to Appellant that Appellant was not chatting with a 22-year-old but

rather with a 14-year-old girl, as 22-year-old women are not typically grounded by

their mothers. R.R. vol 5. p. 25.

      After this previous chat, in which Appellant learned that the profile with

whom he was chatting belonged to a 14-year-old girl, Appellant again contacted

Rodgers. R.R. vol. 5 p. 25. Rodgers recognized Appellant’s screen name as

badbilly1966. R.R. vol. 5 p. 25. This time, Rodgers updated the profile to make

reference to summer time and not being able to believe that she was going to be a

freshman. R.R. vol 5. p. 26. Based on statements made in the prior chat, the

statements in the prior profile and the statements made in the then-current profile,

Appellant had every indication he was initiating a second chat session with an

eighth grade girl going into freshman year of high school after the summer ended.

R.R. vol. 5 p. 25-26.

      Appellant’s first post in this chat was, “what’s up sexy young lady?” R.R.

vol. 5 p. 29. During that chat session Appellant references and confirms his

knowledge from the previous chat that he is speaking with a 14-year-old girl when

he says, “I’d ask you to go but your grounded.” R.R. vol. 5 p. 31. Appellant then

asked Rodgers to go skinny dipping with him, at which point Rogers reminded him

that the online persona with whom Appellant was chatting was 14 and, thereby,

giving Applicant the chance to back out. R.R. vol. 5 p. 32. Rather than backing


                                         2
out, Appellant asked Rodgers if that was a problem and Rodgers stated “no just

making sure that u remembered that I was only 14 and not like 22 like my profile

says.” R.R. vol. 5 p. 33.

      After this exchange, when there can be no doubt left that Appellant is

chatting with a 14-year-old child, Appellant asked, “you like big cock”, sent

Rodgers a picture of his penis and asked, “you wanna ride it”. R.R. vol 5. p.36.

Rodgers again made clear that the persona was a virgin and Appellant responded,

“want me to pop you’re cherry”. R.R. vol. 5 p. 37

      As the chat session becomes more sexual in nature, Rodgers, in the persona

of the minor girl, says she doesn’t want to be 15 and pregnant and that Appellant

should bring a condom. R.R. vol. 5 p. 38. After they agreed on an address of a

nearby park as a place to meet, Appellant stated he would bring beer, and directed

the persona to wear a loose dress and no panties. R.R. vol. 5 p. 38-39.

      Prior to arriving at the park, gave Rodgers his phone number so that

Appellant could continue to communicate via text message. R.R. vol. 5 p. 42.

Appellant notified Rodgers via text message when Appellant was near and when

he arrived at the agreed upon park. R.R. vol. 5 p. 42. Rodgers observed Appellant

walking around the park with his cell phone out, looking around as if expecting to

meet someone, and carrying brown bags that appeared to contain beer. R.R. vol. 5

p.42-43.


                                          3
      At no point in the records from the chat or from the testimony at trial, is

there any indication that Appellant ever made reference to age-play or any sort of

roleplay or attempted to clarify the true age of the profile with whom he thought he

was chatting. Rather, Appellant accepted without hesitation the assertion that he

was chatting with an underage girl and continued to pursue a sexual interlude with

her. Appellant’s admissions in his subsequent interview with investigators further

confirms that he did, in fact, go to the agreed upon meeting location with the plan

to engage in sexual intercourse with a person he believed to be a 14-year-old girl.

R.R. vol. 7, Exhibit 3.

                B. FACTS RELATED TO ADMISSION OF EVIDENCE

                      AT PUNISHMENT PHASE OF TRIAL

      During the punishment phase of the trial, the State offered State’s Exhibit 5

and State’s Exhibit 6, to which Appellant objected. R.R. vol. 5 p. 93. After

allowing both sides to argue outside the presence of the jury, the Court admitted

State’s Exhibit 6 but initially sustained Appellant’s objection as to State’s Exhibit

5, R.R. vol. 5 p. 93-99, 100. After further argument, the trial court admitted State’s

Exhibit 5, R.R. vol. 6 p. 11.

      State’s Exhibit 5 consists of two documents from the state of Nebraska, one

entitled “Amended Complaint” and one entitled “Journal Entry and Order”, R.R.

vol. 7, State’s Exhibit 5. The latter appears to be a computer print-out summary of


                                          4
the disposition of the complaint and states, “Defendant was granted allocution and

sentence was pronounced by the Court.” R.R. vol. 7, State’s Exhibit 5. The

“Amended Complaint” charges William Mower with violating the Nebraska

Sexual Offender Registration Act on January 16, 2008, by failing to register with

the Sheriff of the County of Hall within the appropriate time period after becoming

subject to such registration, R.R. vol. 7, State’s Exhibit 5. Both pages of State’s

Exhibit 5 document a Date of Birth of 6/12/1966 and the name of the person

charged and sentenced as William Mower, R.R. vol. 7, State’s Exhibit 5. Both

pages are consistent with each other in their reflection of the Nebraska statute

charged, the County of Hall, the Case ID number of CR08-188, R.R. vol. 7,

State’s Exhibit 5.

      State’s Exhibit 6 is a Certificate of Conviction from the state of New York

that reflects that William A. Mower pled and was sentenced for the crime of

Attempted Rape in the First Degree. R.R. vol. 7. State’s Exhibit 6 does list an

erroneous date of birth of 6/1/1966 rather than 6/12/1966. R.R. vol. 7. State’s

Exhibit 6 lists a disposition date of December 17, 1998. R.R. vol. 7.

      During the punishment phase of the trial, the State also offered, and the trial

court admitted, State’s Exhibit 7, a business record affidavit and accompanying

records from the Texas Department of Public Safety’s Sex offender Registration

Bureau. R.R. vol. 6 p. 101. State’s Exhibit 7 contains a variety of information


                                          5
identifying Appellant, such as name, date of birth, photographs of Appellant’s face,

an FBI number, a TIC number, an NIC number, a driver’s license number, social

security number, height, weight, shoe size, eye and hair color, a listing of scars and

tattoos, signature, and a full set of Appellant’s fingerprints. R.R. vol. 7 State’s

Exhibit 7. The name and date of birth of Appellant contained in State’s Exhibit 5

match that reflected for Appellant in State’s Exhibit 7. R.R. vol. 7 State’s Exhibit

5, 7. State’s Exhibit 7 also lists the conviction for attempted rape in New York as

the basis for the imposition of sex offender registration on Appellant and contains

corroborating details, as discussed further below. R.R. vol. 7., State’s Exhibit 6, 7.

      During the punishment phase of the trial the State also offered, and the trial

court admitted, State’s Exhibit 8, a fingerprint card collected by Janet Boring, a

crime scene specialist with the Williamson County Sheriff’s Office. R.R. vol. 6 p.

107, 112, R.R. vol. 7. Ms. Boring testified as to her training and experience and

then testified that she compared the fingerprints she collected in State’s Exhibit 8

and the fingerprints contained in State’s Exhibit 7 and concluded both sets of

fingerprints came from the same person. R.R. vol. 6 p. 113, 109-112.

      Also during the punishment phase, the State offered State’s Exhibit 3 (a

previous redacted version State’s 3A had been offered at trial with many of the

portions relevant to this appeal redacted), a video recording of an interview with

Appellant. R.R. vol. 7. During that interview, Appellant admitted to both the


                                          6
offense reflected in State’s Exhibit 5 and in State’s Exhibit 6. R.R. vol. 7, Exhibits

3, 5, 6.

                    V.    SUMMARY OF THE ARGUMENT

       The Statute pursuant to which Appellant was convicted is neither overbroad

nor impermissibly vague. It does not forbid the “Age Play” Appellant describes

and it is clear that Appellant was not engaged in “Age Play” in this case.

Therefore, the statute is constitutional both as applied to Appellant and on its face.

       Both State’s Exhibits 5 and 6 were properly admitted because the State

produced sufficient evidence, consistent with existing precedent, to properly link

Appellant to both exhibits.

                                VI.    ARGUMENT

                 A. ISSUE 1: THE STATUTE PURSUANT TO WHICH

                APPELLANT WAS CONVICTED IS CONSTITUTIONAL

                                       i. Standard of Review

       When considering Appellant’s assertion that the Tex. Penal Code §33.021 is

unconstitutional, this Court must review the statute de novo. See, State v. Salinas

892 SW2d 9, 10-11 (Tex. App.—Houston [1st. Dist.] 1997, pet. ref’d). The court

must presume the statute is valid and the legislature has not acted unreasonably or

arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002).




                                           7
Generally, the burden rests up on the person challenging the statute to establish its

unconstitutionality. Id.

      Appellant is correct that in Ex Parte Lo, the Court of Criminal Appeals held

that where the government seeks to restrict and penalize speech, precedent from

the Supreme Court of the United States makes clear that a “strict scrutiny” analysis

applies, and the usual presumption of constitutionality is reversed. Ex Parte Lo,

424 S.W.3d 10 (Tex. Crim. App. 2013).          However, it is not speech that the

government seeks to restrict in Appellant’s case. The Court of Criminal Appeals

in Ex Parte Lo, struck down section 33.021(b) of the Texas Penal Code that did

punish speech by prohibiting certain types of sexually explicit communications.

Id.

      However, the Court of Criminal Appeals made a strong and direct

distinction between that provision and §33.021(c), which prohibits the conduct of

using electronic communications to solicit a minor to meet another person with the

intent that the minor will engage in certain sexual behavior. Id. In fact, the court

noted, “Such solicitation statutes exist in virtually all states and have been

routinely upheld as constitutional because ‘offers to engage in illegal transactions

[such as sexual assault of a minor] are categorically excluded from First

Amendment protection.’” Id. at 15, citing U.S. v. Williams, 553 U.S. 285, 297

(2008) and U.S. v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004).


                                          8
      The Court of Criminal Appeals went on to note that it is the conduct of

requesting that a minor engage in illegal sexual acts that is the gravamen of the

statute by which Appellant in this case was convicted and noted that the First Court

of Appeals previously upheld the constitutionality of this statute in Maloney v.

State, 294 S.W.3d 613, 625-629 (Tex.App.—Houston [1st Dist.] 2009, pet. Ref’d).

The Court of Criminal Appeals noted that the conduct oriented §33.021(c), while

not an issue in that case, provided, “an excellent contrast” to the §33.021(b) that

they ultimately deemed unconstitutional. Id.

      Thus, Appellant’s reliance on Ex Parte Lo in this case is misplaced.

Therefore, this Court must uphold the statute if it can determine a reasonable

construction that will render it constitutional. Ely v. State, 582 S.W.2d 416, 419

(Tex. Crim. App. [Panel Op.] 1979). Further, if the statute at issue here can be

construed in more than one way, at least one of which sustains its validity, this

Court should apply the interpretation that sustains is validity. Duncantell v. State,

230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).

                           ii. Constitutional as Applied to Appellant

      When asserting that a statute is facially unconstitutional, Appellant must first

carry the burden of showing that the statute is unconstitutional as applied to

him. Bynum v. State, 767 S.W. 2d 769, 774 (Tex. Crim. app. 1989) Appellant’s

brief does not appear to contain any such argument beyond a single statement that


                                          9
Appellant was chatting with a person whose profile indicated they were twenty two

years old in what Appellant terms an adult-only chat room. Other than this

statement, the entire brief is directed toward challenging the constitutionality of the

statute as a whole.

      Regardless, §33.021 is clearly not unconstitutional as applied to Appellant,

and therefore, this Court need not consider the more general assertion of

unconstitutionality as the First Court of Appeals did in Maloney. Appellant never

made any reference to fantasy, inquired as to the true age of the persona with

whom he was chatting, or attempted to otherwise define the scope of any such

fantasy. Instead, Appellant was repeatedly confronted with the fact that the person

with whom he was chatting was an underage girl. Appellant responded to the

multiple repeated assertions and clues of the age of the person with whom he was

chatting by soliciting for sexual activity the person he thought was an underage

girl, arranging a meeting, and then arriving at the meeting place with the very

supplies that he indicated he would bring.

      Further, in State’s Exhibit 3, the video recording of law enforcement

interviewing the Appellant, the Appellant makes admissions that make clear that

the statute at issue is constitutional as applied to him. Once at approximately




                                          10
12:38:001 and twice in a discussion beginning at approximately 13:17:06,

Appellant makes the statement, “You got me dead to rights.” C.R. vol. 7. The

Appellant admits that he knew the girl with whom he was chatting was 14 in a

conversation beginning at approximately 12:38:45. C.R. vol. 7. He admits he

chatted with “her” (the 14-year-old persona) once before and discussed how “her”

mother was angry at “her” in a conversation beginning at approximately 12:42:10.

R.R. vol. 7. Appellant admits sending “her” the picture of his erect penis at

approximately 12:43:48. Appellant also admits that when “she” told him “she”

was a virgin, he said he wanted to “pop her cherry,” at approximately 12:48:10.

R.R. vol. 7. At approximately 13:01:00 the Appellant admits he was sexually

stimulated by the conversation with “her.” R.R. vol. 7. At approximately 13:03:20

the Appellant admits that he has an interest in young girls because they are young

and inexperienced and he is older and can “show them the ropes.” R.R. vol. 7. At

approximately 13:11:20, the Appellant agrees that if a girl had shown up in a

sundress and no panties he would have sexually assaulted her. R.R. vol. 7. Finally,

at approximately 13:29:30, the investigator interviewing the Appellant asked him if

he understood how bad it could have been if a 14-year-old girl had shown up, and

the Appellant answered, “Yes I do. Yes I do. And that’s what’s eating me up.


1
  The times indicated in this brief come from the timer on the banner that is visible at the top of
the video when the video file contained on State’s Exhibit 3 is played on a PC computer with
Windows Media Player.
                                                11
Knowing I was going to do something so,” and then Appellant trailed off without

finishing his sentence. R.R. vol. 7.

      Thus, the interview with the Appellant makes clear that he was not engaging

in “age play” or some other fantasy, but in fact was planning to meet and have sex

with a person he believed to be a 14-year-old girl, and that if he had found a 14-

year-old girl at the park where law enforcement found him, he would have sexually

assaulted her.

                                  iii. Constitutional on its Face

       However, if this Court does consider Appellant’s assertion that §33.021 is

facially unconstitutional, it should consider the First Court of Appeals decision in

Maloney, which is directly on point. There, as here, §33.021 (c) was challenged,

unsuccessfully, as void for vagueness and as being overbroad on the basis of the

lack of definition for the term fantasy and that it prevents adults from engaging in

fantasy with another consenting adult. Maloney v. State, 294 S.W.3d at 625-629.

                                       1. Statute is Not Overbroad

   The Supreme Court of the United States has held that the doctrine of

overbreadth should be employed with hesitation and only as a last resort. See, New

York v. Ferber, 458 U.S. 747 (1982). Thus, to invalidate a statute on its face, the

overbreadth must be substantial and a court must find more than the mere

possibility of imagining some unconstitutional application. See, In re Shaw, 204


                                         12
S.W.3d 9, 15 (Tex.App—Texarkana 2006, pet. ref’d) (citing Members of City

Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)) and Broadrick v.

Oklahoma, 413 U.S 601 (1973). Indeed the Supreme Court has said that when

conduct, and not just speech, is involved, the overbreadth of the statute at issue

must, “not only be real, but substantial as well, judged in relation to the statute’s

plainly legitimate sweep.” Broadrick, 413 U.S. at 615.

   The First Court of Appeals in Houston, considered these cases, among others, in

holding that prevention of sexual assault and abuse of children addressed by

§33.021(c) was “of surpassing importance” and that, “the incidence of the State

seeking to prosecute two consenting adults engaging in online role playing or

‘fantasy’ would likely be exceedingly low.” Maloney, 294 S.W.3d at 628. That

court then held that the over breadth of §33.021 was not substantial relative to its

plainly legitimate sweep and therefore the section was not unconstitutionally

overbroad. The First Court’s analysis is sound and this Court should adopt its

holding. Id.

                              2. The Statute is Not Impermissibly Vague

      Appellant also claims that §33.021 is void for vagueness because it fails to

provide a definition for fantasy, for which proposition Appellant cites State v.

Holcombe, 187 S.W.3d 496 (Tex. Crim. App. 2006). In Holcombe, the Court of

Criminal Appeals did indeed hold that a statute is void for vagueness when it fails


                                         13
to define a criminal offense with enough clarity that ordinary people can

understand what conduct is forbidden in a manner that does not allow arbitrary or

discriminatory enforcement. Id. at 499. However, The Court of Criminal Appeals

has also held that a statute is not unconstitutionally vague simply because it fails to

define certain words or terms contained therein, but has instead directed courts to

give such undefined words their plain meaning. Engelking v. State, 750 S.W.2d

213, 215 (Tex. Crim. App. 1988), Parker v. State, 985 S.W.2d 460,464 (Tex. Crim.

App. 1999).

   Further, the First Court of Appeals reasoned in Maloney that §33.021 does not

criminalize engaging in fantasy, but instead very clearly prohibits a person from

"soliciting a minor over the internet or through other electronic media to meet him

or another person with the intent that the minor will engage in sexual contact,

sexual intercourse, or deviate sexual intercourse with him or another person.”

Maloney, 294 S.W.3d at 629. The First Court then correctly reasoned that since it

is not until this conduct is established that §33.021 prohibits an accused from

defending against the charge by claiming that he was merely engaged in fantasy,

§33.021 does not criminalize the act of fantasy. Id. Based on that rationale, the

First Court held that §33.021 was not unconstitutionally vague. This reasoning is

sound and this Court should hold similarly here.




                                          14
           B. ISSUES 2-3: STATE’S EXHIBIT 5 AND STATE’S EXHIBIT 6

                              WERE PROPERLY ADMITTED

                                       i. Standard of Review

      Appellant is correct that this court must review the trial court’s decision to

admit State’s Exhibit 5 and State’s Exhibit 6 under the abuse of discretion standard

and only reverse the trial court’s decision if the trial court acted without referring

to any guiding rules or principles or, in other words, if the trial court acted in an

arbitrary and unreasonable manner. Montgomery v. State, 810 S.W.2d 372, 380,

391 (Tex. Crim. App. 1990) (citing Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-242 (Tex. 1985), cert. denied 476 U.S. 1159, (1986)). “The mere

fact that a trial judge may decide a matter within his discretionary authority in a

different manner than an appellate judge in a similar circumstance does not

demonstrate that an abuse of discretion has occurred.” Id.

                     ii. Existing Precedent Gives Wide Latitude in Linking

                                          Appellant to Priors

      The Court of Criminal Appeals has held that to establish a Defendant’s

previous conviction the State must show that a prior conviction exists and must

link the Defendant to that conviction, but has not required any particular manner

for providing such proof. Flowers v. State, 220 S.W.3d 919 (Tex. Crim. App.

2007). Not only is a written judgment and sentence not required, but the Court of


                                          15
Criminal Appeals noted that in a “paperless” era, such judgments may become

obsolete, when it went on to hold that a computer print-out from the Dallas County

Clerk coupled with a certified driving record was enough to prove the prior

convictions contained therein beyond a reasonable doubt. Id at 923-925. The

Court of Criminal Appeals cited the Flowers holding to find that the Texas

Department of Criminal Justice properly imposed sex-offender registration

conditions of parole based on an out of state prior sex offense conviction as

evidenced by the DPS CCH report (or rap sheet) and a “Final Disposition Report”

submitted to the FBI by the Chicago Police Department. Ex Parte Warren, 353

S.W.3d 490, 493-495 (Tex. Crim. App. 2011).

      In his brief, the Appellant himself acknowledges that the Flowers case

expanded the ways the State can prove a prior conviction in light of the ways in

which electronic records are handled in the digital age. This is especially true

given that Flowers, like this case, involves prior convictions from a State other

than Texas, and thus which operates on rules and common procedures other than

those imposed for judgments here in Texas. Appellant’s objection then, in light of

the wide latitude given the State in Flowers, is to challenge the links between the

Appellant and State’s Exhibits 5 and 6.




                                          16
                          iii. State’s Exhibit 7 Clearly Identifies Appellant

         The State used State’s Exhibit 7 to link the Appellant to the prior convictions

about which Appellant now complains. The State did so because the link between

Appellant and State’s Exhibit 7 is clear. State’s Exhibit 7 contains a multitude of

information about the Appellant including multiple photographs of his face, date of

birth, sex, race, height, weight, eye color, hair color, FBI number, DPS number,

TIC number, NIC number, driver’s license number, shoe size, blood type, social

security number, address history, cellular phone numbers, information regarding

his vehicle (year, make, model, license plate number, color, style), a description of

scars and tattoos, and multiple fingerprints of the Appellant include a full set and

multiple thumbprints. R. R. vol. 7.

         Further, Janet Boring, the fingerprint expert with the Williamson County

Sheriff’s Office testified that the fingerprints on State’s Exhibit 7 matched the

fingerprints she obtained from the Appellant. R.R. vol. 6 p. 113, 109-112. This

kind of information, especially the FBI number and other such government issued

numbers, is the type of information used and approved in the Flowers and Warren

cases.

         Thus, there can be little doubt that the same William Mower appealing his

conviction in this case is the same William Mower described in State’s Exhibit 7.




                                            17
                   iv. The Evidence Sufficiently Links Appellant to State’s

                                               Exhibit 6

      State’s Exhibit 6, entitled “Certificate of Conviction” is clearly on its face

documentation of a conviction from the state of New York for the crime of

Attempted Rape in the First Degree in violation of section 110-130.35 of New

York penal laws. R.R. vol. 7. State’s Exhibit 7 indicates the Appellant is required

to register as a sex offender in Texas because of a New York conviction for

“Attempt to Commit Rape/1st Degree/Forcible Compulsion New York Penal Law

130.35.” R.R. vol. 7. Both State’s Exhibit 7 and State’s Exhibit 6 list the same

sentencing date. R.R. vol. 7. This sentencing date, offense title, and section of the

New York penal law are listed in multiple places in State’s Exhibit 7. R.R. vol. 7.

      In addition, the third page of the document entitled “Pre-Release

Notification Form Texas Sex Offender Registration Program” contained within

State’s Exhibit 7, lists the same county where the offense occurred, Chenango, as

that reflected on the face of State’s Exhibit 6. R.R. vol. 7. The document in State’s

Exhibit 7 entitled “Offender Relocate Notice From Colorado to Texas” lists “NY”

under “Where Sex Conviction Occurred.” R.R. vol. 7.

      It is true that the State’s Exhibit 7 shows Appellant’s date of birth as

06/12/1966 and State’s Exhibit 6 lists a date of birth of 06/1/1966, but in light of




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the other linking evidence, the trial court did not abuse its discretion in deeming

this a clerical error and admitting State’s Exhibit 6. R.R. vol. 7.

      Further, State’s Exhibit 5, discussed below, reflects that Appellant was

charged with violating sex offender registration conditions. R.R. vol. 7. Given that

State’s exhibit 7 reflects only the New York attempted rape conviction as a basis

for the Appellant’s duty to register, the existence of State’s Exhibit 5 serves as

another factor showing the connection between State’s Exhibits 6 and 7.

      In addition, State’s Exhibit 3, the recorded interview of the Appellant

contains an admission by the Appellant, at approximately 12:38:54, that he is a

registered sex offender because of an Attempted Rape charge out of the state of

New York. R.R. vol. 7. During this conversation, the Appellant gives further

detail about the crime, telling the interviewer that he got drunk, blacked out, beat

up a 38 year old woman, and tore her clothes off. R.R. vol. 7. He says the offense

happened in 1998. R.R. vol. 7. Again at approximately 12:56:20, the Appellant

admits that he was incarcerated in New York and took the first plea deal they

offered him. At 13:07:34, the Appellant confirms yet again that he was involved in

an attempted rape in New York. R.R. vol. 7.

      The details in the Appellant’s confession, beyond the fact of the admission

itself, match details in the State’s other exhibits. Specifically, the Appellant’s

admission to investigators that the victim in the attempted rape charge in New


                                           19
York was a 38-year-old female corresponds to the victim information listed under

the subheading “Offense Information” in State’s Exhibit 7. R.R. vol. 7. The

Appellant’s admission that the New York offense happened in 1998 matches with

State’s Exhibit 6, which lists an indictment number of 98-39 and the Date of plea

and sentence of December 17, 1998. R.R. vol. 7.

      Given the manner in which these various links lend credibility to the

Appellant’s admission that he was convicted of the crime shown in State’s Exhibit

6, the trial court did not abuse its discretion in admitting State’s Exhibit 6.

                     v. The Evidence Sufficiently Links Appellant to State’s

                                                Exhibit 5

      State’s Exhibit 5 consists of two documents from the state of Nebraska, an

Amended Complaint accusing Appellant of the crime of “Criminal Attempt—

Violation of Sexual Offender Registration Act” and a “Journal Entry and Order”

reflecting Appellant’s sentencing for said crime. R.R. vol. 7. In addition to having

the same name, State’s Exhibit 5 and State’s Exhibit 7 both reflect the Appellant’s

proper date of birth as 06/12/1966. R.R. vol. 7. As discussed above State’s Exhibit

5 and 6 are linked to each other as well as Appellant since there is no other basis

listed than the New York conviction that would require Appellant to register as a

sex offender and thus no other reason that Appellant would be charged with

violating the conditions of sex offender registration. Further in State’s Exhibit 3,


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discussed above, when the Appellant is asked if anything ever happened in

Nebraska at approximately 13:07:34, the Appellant replies, “They got me for

failure to register because I didn’t know what the laws were…didn’t get there in

time or something so I got that.” R.R. vol. 7.

      This admission, along with the connection between State’s Exhibit 6, which

is clearly linked to the Appellant, and State’s Exhibit 5 as well as the Appellant’s

correct date of birth, provide sufficient links such that the trial court did not abuse

its discretion in admitting State’s Exhibit 5.

      Certainly when evaluating both State’s Exhibits 5 and 6, the fact that the

Appellant admitted to the offenses in his recorded interview is significant as that is

something that the court in Flowers did not have. Flowers, 220 S.W.3d at 919-921.

Further, in Flowers the Court of Criminal Appeals found a certified driver’s record

from the Texas Department of Public Safety sufficient to corroborate a computer

print out of a conviction from the Dallas County Clerk’s office. Here, we have far

more information in the Certification of Sex Offender Record Information from the

Texas Department of Public Safety admitted as State’s Exhibit 7, than is typically

obtained from driver’s license records.




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                                VII.    PRAYER

      Wherefore, the State respectfully requests that this Court affirm the

conviction.


                                                            Respectfully submitted,

                                                                        Jana Duty
                                                                  District Attorney
                                                         Williamson County, Texas

                                                                 /s/ John C. Prezas
                                                                   John C. Prezas
                                                          State Bar No: 24041722
                                                        Assistant District Attorney
                                                    405 Martin Luther King, Box 1
                                                        Georgetown, Texas 78626
                                                                    (512) 943-1234
                                                             (512) 943-1255 (fax)
                                                                jprezas@wilco.org

                VIII.       CERTIFICATE OF COMPLIANCE

       I certify that the State’s brief contains 4,999 words in compliance with Rule
9.4 of the Texas rules of Appellate Procedure.
                                                 __/s/ John C. Prezas______________
                                                 John C. Prezas


                      IX.    CERTIFICATE OF SERVICE

      I certify that a copy of the State’s brief has been e-filed on April 2, 2015,
and sent to the attorney for Appellant, Kristen Jernigan, 207 S. Austin Ave.,
Georgetown, Texas, 78626, via e-service.

                                              _/s/ John C. Prezas_______________
                                              John C. Prezas


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