                                                                            PD-0829-15
                            PD-0829-15                     COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
                                                           Transmitted 7/2/2015 1:33:48 PM
                                                             Accepted 7/2/2015 4:32:40 PM
                                                                            ABEL ACOSTA
                 IN THE COURT OF CRIMINAL APPEALS                                   CLERK
                      FOR THE STATE OF TEXAS

LESTER FANE WEBB
    APPELLANT

                   V.            COA NO. 02-14-00368-CR
                                 TRIAL COURT NO. 1304635
THE STATE OF TEXAS,
    APPELLEE




    APPEALED FROM CAUSE NUMBER 1304635D, IN CRIMINAL
DISTRICT COURT NUMBER ONE OF TARRANT COUNTY, TEXAS;
THE HONORABLE ELIZABETH BEACH, JUDGE PRESIDING.




  APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


                         WILLIAM H. "BILL" RAY
                         TEXAS BAR CARD NO. 16608700
                         ATTORNEY FOR APPELLANT
July 2, 2015
                         LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
                         512 MAIN STREET, STE. 308
                         FORT WORTH, TEXAS 76102
                         (817) 698-9090
                         (817) 698-9092, FAX
                         bill@billraylawyer.com


***Oral Argument is NOT Requested***

PETITION FOR DISCRETIONARY REVIEW, PAGE 1
                  IDENTITY OF PARTIES AND COUNSEL

LESTER FANE WEBB                            APPELLANT
    c\o Texas Dept. of Criminal
    Justice, Institutional
    Division, Huntsville, Texas

HONORABLE TERRI B MOORE                     ATTORNEY FOR APPELLANT
    300 Burnett Street, Suite 162           AT TRIAL
    Fort Worth, Texas 76102

HONORABLE WILLIAM H. RAY                    ATTORNEY FOR APPELLANT
    512 Main Street, Ste. 308               ON APPEAL
    Ft. Worth, Texas 76102

HONORABLE SHAREN WILSON                     CRIMINAL DISTRICT ATTORNEY
    401 West Belknap                        TARRANT COUNTY, TEXAS
    Fort Worth, Texas 76102

HONORABLE STEVEN GEBHARDT                   ASSISTANT DISTRICT
    401 West Belknap                        ATTORNEY, TARRANT
    Fort Worth, Texas 76102                 COUNTY, TEXAS

HONORABLE MICHELE HARTMAN                   ASSISTANT DISTRICT
    401 West Belknap                        ATTORNEY, TARRANT
    Fort Worth, Texas 76102                 COUNTY, TEXAS

HONORABLE ELIZABETH BEACH                   JUDGE, CRIMINAL DISTRICT
    401 West Belknap                        COURT NUMBER ONE
    Fort Worth, Texas 76102                 TARRANT COUNTY, TEXAS

HONORABLE LISA McMINN                       STATE PROSECUTING
    P.O. Box 13046                          ATTORNEY
    Austin, Texas 78711




PETITION FOR DISCRETIONARY REVIEW, PAGE 2
                            TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                                       2

INDEX OF AUTHORITIES                                                  4

STATEMENT CONCERNING ORAL ARGUMENT                                    5

STATEMENT OF THE CASE                                                 5

STATEMENT OF THE PROCEDURAL HISTORY                                   6

GROUND FOR REVIEW

GROUND FOR REVIEW NUMBER ONE                                          7

      THE TRIAL COURT ABUSED ITS DISCRETION BY
      REFUSING TO ALLOW APPELLANT TO PRESENT
      EVIDENCE OF GOOD CHARACTER, BASED ON
      THE STATE’S OBJECTION PURSUANT TO RULE 405,
      TEXAS RULES OF EVIDENCE.

PRAYER                                                                10

CERTIFICATE OF SERVICE                                                10

CERTIFICATE OF COMPLIANCE                                             11

The Opinion of the Court of Appeals is included with this Petition.




PETITION FOR DISCRETIONARY REVIEW, PAGE 3
                          INDEX OF AUTHORITIES


Cases                                                                Page

Love v. State 861 S.W.3d 899, 901 (Tex.Crim.App. 1993)               9

Melgar v. State, 236 S.W.3d 302, 306 (Tex.App.-Houston [1st Dist.]   7
     2007, pet. ref'd)

Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002)           8

Wheeler v. State, 67 S.W.3d 879, 882 n. 2 (Tex.Crim.App.2002)        7

Statutes


Rule 404(a), Texas Rules of Evidence                                 7

Rule 405, Texas Rules of Evidence                                    7




PETITION FOR DISCRETIONARY REVIEW, PAGE 4
               STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is not necessary in this case.



                         STATEMENT OF THE CASE

      This is an appeal from a felony conviction and sentence for the offense

of Aggravated Sexual Assault of a Child. Appellant was charged by indictment in

cause number 1304635 with the offense of Continuous Sexual Abuse. CR, Page 7.

      The jury found Appellant guilty of the lesser included offense of Aggravated

Sexual Assault of a Child. CR, Page 210; RR-5, Pages 15-17. Appellant elected

for the jury to assess punishment . The jury assessed punishment at 7 years in the

Institutional Division of the Texas Department of Criminal Justice. CR, Page 210;

RR-5, Pages 29-31.

      On direct appeal, the Court of Appeals for the Second Appellate District in

Fort Worth affirmed Appellant’s conviction. The opinion was not designated for

publication.




PETITION FOR DISCRETIONARY REVIEW, PAGE 5
     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      Appellant was sentenced on August 29, 2014. Notice of Appeal was timely

filed. Appellant timely filed his brief in the Court of Appeals on January 13, 2015.

The State timely filed its brief on March 13, 2015.

      The case was submitted to the Court of Appeals, without oral argument, on

May 22, 2015. The Court of Appeals affirmed Appellant’s conviction on June 11,

2015. That opinion is not designated for publication.

      This Petition for Discretionary Review is timely filed.




PETITION FOR DISCRETIONARY REVIEW, PAGE 6
                   GROUND FOR REVIEW NUMBER ONE

       THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING
       TO ALLOW APPELLANT TO PRESENT EVIDENCE OF GOOD
          CHARACTER, BASED ON THE STATE’S OBJECTION
         PURSUANT TO RULE 405, TEXAS RULES OF EVIDENCE

      Generally, character evidence is not admissible to show that a person acted

in conformity with a character trait on a particular occasion. Tex.R. Evid. 404(a);

Melgar v. State, 236 S.W.3d 302, 306 (Tex.App.-Houston [1st Dist.] 2007, pet.

ref'd). But an accused in a criminal case is permitted to introduce evidence of a

specific good-character trait to show that it is improbable that he committed the

charged offense when that character trait is relevant to the offense. Tex.R. Evid.

404(a)(1)(A); Melgar, 236 S.W.3d at 306-07. A pertinent trait is " one that relates

to a trait involved in the offense charged or a defense raised." Melgar, 236 S.W.3d

at 307. Thus, in a prosecution for a crime of violence, the defendant's character for

being peaceful is pertinent because evidence of peaceful character makes it less

likely that the defendant committed the crime. Id. In a murder case, the accused's

reputation for peacefulness, or nonaggressive behavior, is the appropriate inquiry.

Wheeler v. State, 67 S.W.3d 879, 882 n. 2 (Tex.Crim.App.2002); Melgar, 236

S.W.3d at 307. This type of evidence can be elicited via opinion or reputation

testimony, or both. Tex.R. Evid. 405(a); Melgar, 236 S.W.3d at 308.



PETITION FOR DISCRETIONARY REVIEW, PAGE 7
      Rule 405 of the Texas Rules of Evidence states:

      Methods of Proving Character

      (a) Reputation or Opinion. In all cases in which evidence of a person's

      character or character trait is admissible, proof may be made by testimony as

      to reputation or by testimony in the form of an opinion. In a criminal case, to

      be qualified to testify at the guilt stage of trial concerning the character or

      character trait of an accused, a witness must have been familiar with the

      reputation, or with the underlying facts or information upon which the

      opinion is based, prior to the day of the offense. In all cases where testimony

      is admitted under this rule, on cross-examination inquiry is allowable into

      relevant specific instances of conduct.

      (b) Specific Instances of Conduct. In cases in which a person's character

      or character trait is an essential element of a charge, claim or defense, proof

      may also be made of specific instances of that person's conduct.

      A trial court's decision to admit or exclude evidence is reviewed under an

abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim.

App. 2002). An appellate court may not reverse a trial court's ruling unless that

ruling falls outside the zone of reasonable disagreement. Id.

      In the present case, Appellant sought to prove that he had a good character


PETITION FOR DISCRETIONARY REVIEW, PAGE 8
through the testimony of Martha Walker, who had known Appellant in excess of

two decades. RR-4, 193-196. The State’s objection “Rule 405" was erroneously

sustained. RR-4, Page 196. Walker should have been allowed to testify that in her

opinion, Appellant did not have the type character to commit the offense for which

he was charged. It was therefore relevant to the subject of the trial.

      Appellant submits that the trial court abused its discretion in not allowing

this testimony. Martha Walker was the only witness that Appellant attempted to

ask about his character. Appellant submits that to not allow this question was

improper and an abuse of discretion.

      The Court of Appeals held that Appellant’s trial counsel did not preserve

error, but did “by skillful questioning” manage to present the witnesses opinion.

Opinion, at pages 1-3. As the Court of Appeals noted, error may be made by an

offer of proof. Opinion, at page 2. Love v. State 861 S.W.3d 899, 901

(Tex.Crim.App. 1993). Appellant submits that by asking the questions referred to

above, Appellant did make an offer of proof. For this reason, Appellant submits

that he did preserve error and the Court of Appeals should not have dismissed his

complaint for that reason.




PETITION FOR DISCRETIONARY REVIEW, PAGE 9
                              PRAYER FOR RELIEF

      Appellant Prays that this Honorable Court reverse his conviction and remand

the case for a new trial.

                            RESPECTFULLY SUBMITTED,

                            /S/ WILLIAM H. “BILL” RAY
                            WILLIAM H. "BILL" RAY
                            TEXAS BAR CARD NO. 16608700
                            ATTORNEY FOR APPELLANT

                            LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
                            512 MAIN STREET, STE. 308
                            FORT WORTH, TEXAS 76102
                            (817) 698-9090
                            (817) 698-9092, FAX


                            CERTIFICATE OF SERVICE

       I certify that a true copy of Appellant's Brief was delivered via the electronic
filing system to the office of Joe Shannon, Jr., Criminal District Attorney, Criminal
District Attorney of Tarrant County, Texas, 401 W. Belknap St. Ft. Worth, Tx.
76196-0201 on the date of this document’s filing.
       I certify that a true copy of Appellant's Petition for Discretionary Review
was placed in the United States Mail addressed to Appellant, in the Texas
Department of Corrections, on the date of this document’s filing.
       I certify that a true copy of Appellant's Petition for Discretionary Review
was delivered via the electronic filing system to the State’s Prosecuting Attorney,
at P.O. Box 13046, on the date of this document’s filing.


                                 /S/ WILLIAM H. “BILL” RAY
                                 WILLIAM H. “BILL” RAY



PETITION FOR DISCRETIONARY REVIEW, PAGE 10
                       CERTIFICATE OF COMPLIANCE

       Pursuant to Rule 9.4 i3, of the Texas Rules of Appellate Procedure, I certify
that the Brief on Direct Appeal filed in this case, has 1527 words contained
therein. This count was obtained via the WordPerfect computer program.

                                /S/ WILLIAM H. "BILL" RAY
                                WILLIAM H. “BILL” RAY




PETITION FOR DISCRETIONARY REVIEW, PAGE 11
                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-14-00368-CR

Lester Fane Webb                          §    From Criminal District Court No. 1

                                          §    of Tarrant County (1304635D)

v.                                        §    June 11, 2015

                                          §    Opinion by Justice Dauphinot

The State of Texas                        §    (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS


                                       By _/s/ Lee Ann Dauphinot______________
                                          Justice Lee Ann Dauphinot
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00368-CR


LESTER FANE WEBB                                                      APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                    TRIAL COURT NO. 1304635D

                                      ----------

                         MEMORANDUM OPINION 1

                                      ----------

      A jury convicted Appellant Lester Fane Webb of aggravated sexual assault

of a child under the age of fourteen years and assessed his punishment at seven

years’ confinement. The trial court sentenced him accordingly. In a single point,

Appellant contends that the trial court reversibly erred by refusing to allow him to

present evidence concerning his good character.

      1
       See Tex. R. App. P. 47.4.
      As the State points out, to preserve error in a trial court’s exclusion of

evidence, the substance of the excluded evidence must be shown by an offer of

proof unless it is apparent from the context of the questions asked. 2 Error may

be preserved by an offer of proof, either in question-and-answer form or in the

form of a concise statement by counsel. 3 Counsel’s concise statement must

include a summary of the proposed testimony. 4 Here, trial counsel made no

offer of proof. We note, however, that by skillful questioning, able trial counsel

nevertheless managed to present to the jury the witness’s opinion:

      Q.    Are you familiar for—with his reputation in the community for
            being a peaceful and law-abiding citizen?

      A.    Yes, we are.

      Q.    Okay. And what is that reputation?

      A.    It’s a very upstanding reputation, caring [and] law abiding.

      Q.    Uh-huh. And his reputation for honesty?

      A.    Very good.

      Q.    Okay. Would you trust him around your grandchildren?

      A.    I sure would.

      Q.    No hesitation?


      2
     Tex. R. Evid. 103(a)(2); Bundy v. State, 280 S.W.3d 425, 428 (Tex.
App.—Fort Worth 2009, pet. ref’d).
      3
       Tex. R. Evid. 103(a)(2), (c); Love v. State, 861 S.W.2d 899, 901 (Tex.
Crim. App. 1993).
      4
       Love, 861 S.W.2d at 901.



                                        2
      A.     No hesitation.

      Q.     You understand what he is charged with here today?

      A.     Yes, [I] do.

      Q.     And you understand it involves R[.]?

      A.     Right.

      Q.     And the allegation is sexual abuse?

      A.     Right.

      Q.     And I can sit here and go into all the details about what the
             allegation involves. Would that change your opinion of Mr.
             Webb?

      A.     No.

      Because Appellant did not preserve error, we overrule his sole point and

affirm the trial court’s judgment.




                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

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

DELIVERED: June 11, 2015




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