                                                              1q Jf:{q_._06
                                                         RECE\VED 1N
The Court of Criminal                               COURT OF CRIMINAL APPEALS
Appeals of Texas
P.O. Box 12308 Capitol Station
Austin, TX 78711                                           JAN 09 2015
Dear Mr.   Abel Acosta,   Clerk                         Abel Acosta, Clerk

I have enclosed a motion,     rebuttal,   and exhibits to recall facts
in the post conviction proceeding cause no. 1284277-B. Please file
and present these documents to the Honorable Judge of this court.
Thank you.
                                                          bmitted


                                                            /Z
                       CAUSE NUMBER 1 2.8 4 2 7 7- B .

WILLIE EDWARD CHOICE                 §      IN THE COURT OF
                                     §
vs                                   §      CRIMINAL
                                     §
THE STATE OF TEXAS                   §      APPEALS OF TEXAS
                                     §


TO TKE HONORABCE JUDGE OF THE COURT OF CRIMINA~ APPEA0S:

Come now Willie Edward Choice pro se applicant, would like to

inform the court after December 2, 2014 the clerk of the 176th

District Court of Harris County Texas mail the forwarding copy

of the trial courts finding of facts to the Garza unit Beeville

Texas address where I am not retained cause a delay. Thereby

inconvenience of the clerks error and due to the holidays I

respectfully ask this court to review the enclosed filed copies,

motion, rebttal and exhibit,     (proof of the facts)    in the case.

                                            Respectfully Submitted




                                            ~                  '     I
.   :


                                 CAUSE NO. 1284277-8
        WILLIE EDWARD CHOICE              §     IN THE COURT OF CRIMINAL
                                          §
        vs                                §     APPEALS
                                          §
        STATE OF .TEXAS                   §     AUSTIN TEXAS
                                           §


             Motion to object to the trial court finding of facts and
             conclusion of law.

        TO THE HONORABLE JUDGE OF SAID COURT:
        Comes now applicant Willie Edward Choice before this court in this

        motion and object to the trial courts conclusion of law on the
                                                                                  . .l
        ~allowing   in the States application page 3 at 16 alleged the app-

        licant was not placed in jeopardy twice for same offense. See

        State wrif exhibit B and C indictment. In the probable cause       rep~


        art taken by affiant Jackie Blanchard during the forenic interview

        of the complaintant Datavia M. Evangelista third paragraph under

        probable cause. The complainant alleged on or about October 20,

        2010 at 1006 Carolyn Ct., Humble Texas the offense supposedly

        occurred against her. The affiant Jackie Blanchard appeared be-

        fore the assistant district attorney of Harris county Texas and

        stated under oath that Willie Edward Choice the defendant alleg-

        edly committed the offfense against the child on or about March

        17, 2010 inconstant with the childs statement in the report. In.
        the second paragraph in the probable cause report the affiant

        interviewed the sister Davonqria Evangelista that stated during

        the interview alleged the offense committed against her on M9rch

        17, 2010 however the affiant Jackie Blanchard stated under oath
        that the offense allegedly occurred against the child Davondria

        Evanglista on. or about October 20, 2010 inconstant with the re-

        port~i   This error violates the applicants right to due process of
..   ~   law,   U.S. Constitution fourteenth and fifth             Amendment.

         However, both girls testified in the fir$t trial cause no. 1284276

         litigating their claim against the applicant therein was found

         not guilty and acquitted of the offense alleged.         The State was

         barred from relitigating the s3me issues in a second trial.

         Applicant believe that because of the affiant error to due process

         of   l~w   both indictments should have been "Squashed",      Applicants

         trial counsel was on a fully probated suspension and was not

         eligible to practice law in the state of Texas deceitfully            ~ook

         the case. Under the circumstances did not challenge the State

         prosecutor or made any attempt to prevent a second prosecution.

         Violated double     jeopardy U.S.   Canst.   5th Amendment.   (see) doc-

         ument from the State bar of Texas.       Applicant pray that the Court

         of Criminal Appeal will act accordingly as         justice require.
                          CAUSE NUMBER 1284277-8

WI~~IE   EDWARD CHOICE                 §       IN THE 176TH DISTRICT COURT
                                       §
vs                                     §       OF
                                       §
THE STATE OF TEXAS                     §       HARRIS COUNTY TEXAS
                                       §


                                  REBUTTA~




TO THE   HONORAB~E   JUDGE OF TH£ COURT OF          CRIM~NAL   APPEA~S   OF TEXAS:

Comes now the applicant Willie Edward Choice before this Court,

and files this rebuttal to the above cou.rt finding of facts and

conclusion of law and recommendation.           The applicant filed a motion

for a evidentiary hearing Sept. 18,           2014 and no response from the

trial court.   (citing)   Perillo v.       Johnson 79 F3 441      5th Cir 1996

at 446,447. Therefore     t~e   applicant offer this proof in the re-

cords and portions of.the writ 11.07 that points out facts not

considered by the trial court and my trial counsel. The applicant
                                                                               I

pray that the court of criminal appeals review these facts off-

ered in my behalf to prevent a unfair judgement.                (Cite) Saline v.

United States 709 F2d 160 2d cir 1983 at 168-69 and a miscarrage

of justice.
                                IN THE COURT OF CRIMINAL APPEALS

         The Applicant's Response to the Trial Court's Findings of Facts

                     and Conclusions of Law               (State's Writ Page 5)


The Trial Court alleges the Applicant receivec'btotality of representation

sufficient to protect his rights to reasonably effective assistance of                        tri~l


counsel.

Applicant's Response:           Applicants Writ 6 Memorandum of Law Ground One page 5

Trial Counsel Mr. Osborne sh::>Uld have cross-examined the State's witness,

"Complainant Davondria Evangelista" from a                  prior~   trial with her sister- Datavia

Evangelisi:a in which the Applicant was acquitted.                    There was no logical reason

for counsel Mr. Osborne not to examine              .3.   critical witness as a ccitical stage·

of the trial.       While the same issues were being relitigated was Constittitional

Error.     United States v Cronic,,1466 U.S. at 659                  (See Exhibit Al through 5 at

A5-23)

Issue 2.     Mr.   Osborn·~    did not object to the Court's jury charge at the guilt/

innocence phase of the trial or at the punishment phase of                     t~ial,    which was

limitecl to "egregious" "error''.            [see exhibit B]

Issue 3.     Improper argument during voir dire and :::losing argument.

Appl._icant's Response:         Pr-osecutor stated the Applicant confessed to the crime,

and that the Applicant lied on i:he witness stand.                     (See Exhibit C)     Prosecutor

c'luring voir dire insinuated no one lies abo1Ji: sexual abuse was improper.

(Exhibit C2 at 19)           "Misleaoing the Jury''

Issue 4:     The Court alleged the Applicant must pcJVe harm of a venire par1el

shuffled outside      th·~    App 1 icant' s presen:::e.



                                                   1
.!\pp1icant's Response:      The shuffle was verbal by Tdal Counsel Mr. Osborne and

is unconst i tut iona l and no harm is nec?o of showing.           Tex. Code Crim. Proc. art.

35.11   Scott v State, 805        s.w.     2o 612, 614 (Tex. app.- Austin 1991)

Issue 5:   The Court finds that the applicant did not object to Dr. Thompson's

testimony at trial or raise the issue on appeal.

Applicant's Response:        Dr. Thompson did not me:?t the criteria of Tex. Code

Crim. Proc. Evio.    R~le    703.        This is a Constitutional violation of the Applicant's
right to due process of       l:~.·,v.    Dr. Thompson had no data in the case are     bas<~   on

an opinion of the facts in the case or had ever met the chilo Datavia Evangilista

while the State and the outcry witness Sadyia Evangilista was asserting mis-

leading the jury    tha~    the child was being treated at the center where his is

overseer. [$.?e exhibit El through 3] who never met the chj_ld.               The Applicant was

deprived of rGasonable effective protection of Trial Counsel and Appelant Counel

not to raise an obvious fact..see Exparte Gardner 9'59 S.W.2d at 201

Issue 6:   The Court alleged Blanchard Wds not inconsistent from ]1er probable

cause affidavit in her testimony at trial.

Applicant'~    Response:     See state's writ (Exhibits D and E)             Blanchard was very

inconsistent in her testimony . . Blanchard stated in her report to the District

Attorney that    Dat~via.   Evangelista alleged the offense supposedly occurred

againt>t her on or about March 17, 2010: under             Prob:~.ble   Cause, Blanchard state's

that in a interview the report allege() the child Datavia stated on or about

October 20, 2010 was       stat·~d       by the complainant, a violation of due process of

law to state date not alleged by complainant.               Blanchard in the affidavit report

state's the Applicant denied inserting his Einger inside their vaginas.                   (see

Exhib.it Dl)    The record shows Bl.=mchard testified at trial the Applicant had

admitted to sticking his finger inside of the child's vagina inconsistent with



                                                   2
her report.       [see Exhibit D2, D3]      Therefore the State prosecuted the Applicant

on both girls testimony in the first trial.

Issue 7:    ~he   Court seeks proof of suppression of evidence in the record.

Applicant's Response:       The State filed a Motion Inlime to exc1ude that Datavia

Evangelista had testified in the first trial where the Applicant was acquitted

of poth girls testimony's which vilated his Fifth Amendment rights.               Testimony

is evi·'lence.     (see Exhibit F) copy of the Motion Inlime limited my defense

violated Tex. Code Crim. Proc. art 2.01 "They shall not            suppre~1s   facts" and

violated U.S. Const. Fourteenth Amend. right to due process of law.

Issue 8:    The State alleges the Applicant was not placed in jeopardy twice for

the same offense.       (see State's writ Exhibit B and C indictments)

Applicant's Response:       The State prosecuted .the Applicant in the first tdal

wherein "both cor:lplainant Is   II   testified under offense report number 0/R No"

10005703 Humble PD alleging the statement's the affiant observed in the for-

ensic interview.      The Applicant was found Not Guilty and Acquitted.           The State

used the same offense 0/R number No. 10005703 to reprosecute the Applicant

using the same alleged v.-i..ctims ·from the first trial.        Jeopardy attached to all

the evidence offered at the first trial.


                                       CONCLUSION OF LAW

Applicant prays the Court of Criminal Appedls finds:

     l.    Applicant's Trial     Couns<~l   was not effective.

     2.    Applicant was placed twice in jeopardy for the same offense.

     3.    Applicant's dght to due process of law was violat:=d.

     4.    Dismiss the charges.




                                               3
                                                                         51



 1             Please call your next.

 2             MS. BYROM:      The State calls Davondria Evangelista.,

 3             THE COURT:      You may proceed.

 4             MS. BYROM:      May it please the Court.     Actually, your

 5   Honor, if you don't mind I'm going to move up here.

 6             THE COURT:      That's fine.

 7                            DAVONDRIA EVANGELIST]\, 1

 8   having been duly sworn, testified as follows:

 9                              DIRECT EXAMINATION

10   BY MS. BYROM:

11        Q.   Good afternoon, Davondria.         Could you please

12   introduce yourself to the ladies and gentlemen of the jury by

13   telling them' your name.

14        A.   My name is Davondria Evangelista.

15        Q.   Okay.   Now,    Davondria, you're going to have to speak

16   a little bit closer into the microphone, okay?

17        A.   Yes.

18        Q.   Can you say testing one two three?

19        A.   Testing one two three.

20             MS. BYROM:      Can you hear?

21             A JUROR:     Uh-huh.

22        Q.    (By Ms. Byrom)     It's real important that you speak up

23   so that way everyone can hear you, okay?

24        A.   Yes, ma'am.

25        Q.   Okay.   Davondria, how old are you?
'··




       1      restaurant in October of 2010?

       2            A.        Yes, ma'am.

       3            Q.        Who was there with you that da,y?

        4                     THE COURT:     I'm sorry, ladies and gentlemen, can

       5      you-all excuse us for just a minute.                       Take the jury out for
                                                                   U.$ .. C..orJS+~ s.f-47 I~ ~f""le~d,
        6     J. ust a minute.                                     v·leo\0..+-l:o....,
       7                       (Jury out.)

       8                      THE COURT:     Be seated.

        9                      I'm sorry, you're just making me real real                    nervou~


      10      from the time that you called her, so

      11                      MS. BYROM:     It's okay.
                                                                                                   .'
      12                 .I   ·THE COURT:    Deja vu all over again.
                                                                                                    ./,.   . '.


      13                      MS. BYROM:     I'll give you a proffer as to what I                                 :   ...


      14      anticipate.        Essentially I anticipate her just discussing what

      15      she observed happening there at the restaurant that day with

      16      her sister, and how the police were contacted, and then we'll

      17      be done with her.         Just so the jury will understand that how

      18      the police got involved in the first place.

      19                      THE COURT:     Okay.

      20                      MS. BYROM:     And that's it.               It really won't be very

      21      much longer.

      22                      THE COURT:     She knows all that.
                                                                           ·.·•

      (0                      MS. BYROM:     ~ 've   spoke!), t£.J1er a_b_qgt not         ta~g
      c:3)    abo..:::~~ything_ involving herself and Mr:..! Choic·e.                    We're not

      25     _g,oing_to 2 cover any of that.           Don't worry, it's just going to be



                   .])e)a... vu; en     v-teb5·!e.r's dt-ch6.neu-v=, cdr-ectd'-f seen, the
                         or
              '1/ IUS It) 11  ha.'t~Vli p;-e.\(/ cu s I '1 Q,.)(.re .- t ced
                                                         \':..f)
     '•
                                                                                     54



           1        Q.      Louder?

           2        A.      Yes, ma'am.

           3        Q.      And what about. Rachel, how old is Rachel?

           4        A.      Four.

           5        Q.      Okay.     And who is Rachel's father?

           6        A.      Mr. Will.

           7        Q.      Who?

           8        A.      Mr. Will.

           9        Q.      And what is Mr. Will's full name?

          10        A.      Uh, Willie Choice.

          11        Q.      Okay.     How do you know Mr. Will?

          12        A.      Because I used to stay with him a long time ago.

          13        Q.      You got to speak a little bit louder, okay,

          14   Davondria?

          15        A.      I used to stay    ~th   h~.


          16        Q.      Okay.     And when you used to stay with Mr. Will, where

          17   would you stay with him, do you remember the street name?

          18        A.      Uh, not really.     I think it was Caroline something.

          19        Q.      And was that in         do you remember the city that that

          20   was in?

          21        A.      Yes, ma'am.

          22        Q.      What city was that in?

          23        A.      Humble.

          24        Q.      Okay.     That was here in Humble in Texas?

          25        A.      Yes, ma'am.




l_
                                                                      55



 1         Q.   Okay, good.

 2              Did anyone live with you at the house with Mr. Will

 3    besides your sister Datavia and your sister Rachel?

 4         A.   Yes, rna' ai14

 5         Q.   Who else lived there with you?

 6         A.   My mom, and Caleb, and Benjamin, my step-brothers.

 7         Q.   Who is Caleb?

 8         A.   He -- was my step-brother.

 9         Q.   And how old is he?

10         A.   I don't know how old he is right now.

11         Q.   Is he a big kid or a little kid?

12         A.   He's about in the middle,    like seven, eight.

13         Q.   Okay.    And what about your -- the other -- Benjamin,

14    how old was he?

15         A.   Uh,   I think he was about 15.

16         Q.   Okay~    Where do you live now?   Do you live with your

17    mom and Mr. Will now?

18         A.   No, rna' am.

19         Q.   Who do you live with now?

20         A.   I live with my aunt.

21         Q.   And what is her name?

22         A.   Sadiyah Evangelista.

23         Q.   And how long have you lived with her?

24         A.   About a year and a half now.

2'5        Q.   Okay.    And who else lives there besides you and your
                                                                           62



 1                January 28th.

 2        Q.      Okay.   Okay.     I want you to take a moment and look

 3   around the room, Davondria.         Do you see the person in the room

 4   that you call Mr. Will?

 5        A.      Yes, ma'am.

 6        Q.      Could you please point to him and kind of describe

 7   where he's sitting?

 8        A.      Right there.      He's sitting by Ms. Becky.

 9        Q.      Okay.   And what is he wearing?

10        A.      He's wearing a black     su~t.


11        Q.      Okay.   Does he have on a tie or glasses or anything

12   like that?

13        A.      Yes, ma'am.

14        Q.      What else is he wearing besides a suit?

15        A.      He's wearing a tie, glasses.

16        Q.      Okay.

17                MS. BYROM:      May the record reflect that she's

18   identified the defendant.

19                THE COURT:      The record will reflect.

20                MS. BYROM:      Thank you.

21                And I will pass this witness.

22                THE COURT:      All right.   Mr. Osborne.

23                MR. OSBORNE:      I have no questions.

24                THE COURT:      All right.   May she be excused?

25                MS. BYROM:      Yes, your Honor.
r          Because     there    was     no    evidence      before        the    jury    that

r   appellant had been charged with the sexual assault of the


r   complainant's sister,

    not relevant       to    the
                                      evidence of appellant's acquittal was

                                   issue of the proper punishment                       to be

r   assessed in the case being tried.


r          7. Instructions to the Jury: Appellant did not

    the Court's jury charge at the guilt/innocence phase of trial,
                                                                                  object_~g




r   or at the punishment phase of trial. (R.R. 6,                        52, 72; R.R. 7,


r   41-42) .     Defense       counsel's           affirmative

    objections to the charge," waived any error because it leads
                                                                        statements,       "no



r   the trial court to believe it is giving a charge to which the


r   defendant has no objection. Coleman v.

    (Tex.App.     Houston              Dist~]      2001,
                                                               State, 45 S.W.3d 175

                                                            pet.    ref'd).      Absent an
r
                               [1st

    objection     to   the     charge,       review    is    limited       to    "egregious

r   error" which is error that goes to the very basis of the case,


r   deprives the defendant of a valuable right, or vitally affects

    the defense.       Texas Code of Criminal               Procedure, Art.          36.19;

r   Almanza v. State, 686 S.W.2d 157, 172 (Tex.Crim.App. 1985).


r   trial
           The application paragraph at the guilt innocence stage of

               correctly     defined         the   elements        of    the    offense    of

r   aggravated sexual abuse of a child and authorized a conviction


r   only    if   the    alleged       elements       had    been        proven    beyond    a


[   c:\appeals\choice\friv. brief                                                          17



r
                               I (nfr-Dp-tA   ,!:Yrrrt"\~+C£ee w:{{- ro4nrf. 1J)              I   'ih·,~~f
...
                         S·i~:f-e (H-ocsecl.l-1-or C los.;f\CtI A-t-qu
                                                                    _,
                                                                       Me:()+
                                                                                            47      c .t
       1   after consulting with his attorney, but I just want you to

       2   remember what we discussed during voir dire, that the

       3   presumption of innocence is not the presumption of credibility.

       4   And you can consider any bias or motive that that man would

       5   have to lie up there on the stand.

       6             And you know that he did at some point in time,

       7   because even though he confessed to the crime, and he's telling

       8   something different now, he claims he was telling the truth on

       9   both occasions.       And you know that's not possible.              This is a

      10   man that's willing to say.whatever it takes to keep himself out

      11   of trouble.

      12              What should you be considering at this point in time?

      13   Well, I submit to you there are four factors that you should

      14   consider as part of your deliberation and what appropriate

      15   punishment is in this case.            First of all, I'll go ahead and

      16   say it, mitigation.         What has he done that's good in his life?

      17   Consider that.

      18              Two, future danger to society, is this person a

      19   threat?   Three, the seriousness of the crime itself.                  And four,

      20   the lasting effect that that man's crime had on Datavia

      21   Evangelista.      So let's go through and talk about each and every

      22   one of those things.

      23              Mitigation, we haven't heard much about what he's

      24   done that's good in his life.             Sure, you heard that he stayed

      25   out of trouble, that he hasn't been convicted of a felony or a
                                                                                         75



 1                MS. BYROM:     Okay.    So would you agree with me that

 2   children typically lie to get out of trouble, rather than to

 3   get themselves into trouble?

 4                VENIREPERSON:      Oh, yeah.

 5                MS. BYROM:     Oh, yeah.      Does that sound familiar to

 6   everyone?

 7                Okay.   Now, this next part, it's audience

 8   participation section.        Raise your hand if you ever told a lie

 9   in yoi..lr entire life, including when you were a child.

10                (Hands raised.)

11                MS. BYROM:     And your hand should be up because if

12   your hand isn't up now, then you're lying now, because

13   everyone's told some little fib at some point in time.                      No,

14   mom,    I didn't eat the last cookie.          Now,   keep 'em up.

15                THE COURT:     There's one guy there that's never told a

16   lie.                                        IMf't-ef'~   Jl-t-·y'-V·1e.Vlt (see    ~ ..(       )
17                MS. BYROM:
                                                 'We.'=>v-Mp~~-t>lf t>~ ~re.dn;;\·llt"\ +-h~
                                 It's up now. C..~t-tpi~M.,u..a,·\· will ~OT
                                                                                                ·
                                                                                Lie
18                Okay.   Now,   keep your hand up if you lied and told

19   someone that you were sexually abused when you really were not.
                                                                                          J



20                Not a single hand, okay.         'IY1 Pt-{) r~ !J.-rrrn ~ ( s ~e. vJt-,f p~~
21                All right.     Juror No. -- I think we covered this down

22   here.    Let me go over here.        I told you it was like a tennis

23   match.

24                Juror No. 15, what are your expectations for a child

25   witness?    What do you think that they'll sound like or look


                                                                     e.o.l .Pro .se.
          '   .'




         AFFIANT WAS ADVISED BY THE DEFENDANT 1HATHE DID NOT TOUCH COMPLAINANT DAVONDRIA EVANGELISTA'S
         BREAST EXCEPT WHEN HE ACCIDENTALLY ELBOWED HER IN THE BREAST. THE DEFENDANT DENIED EVER INSERTING
         IDS FINGER INTO ErmER COMPLAINANT'S VA GINA (FEMALE SEXUAL ORGAN). THE DEFENDANT AGREED TO TAKE A
         POLYGRAPH EXAMINATION AND SHOWED EXTREME DECEPTION ON THE TEST. THE DEFENDANT REQUESTED TO SPEAK
         TO THE AFFIANT AFTER THE POLYGRAPH AND CONFESSED. THE DEFENDANT SAID TIIATHE HAD RUBBED ON THE
         COMPLAINANTS VAGINA ON THE OUTSIDE, BVf DENIED INSERTING IDS FINGER INSIDE THEIR. VAGINA'S. Tiffi
         DEFENDANT STATED TIIATHE DID GRAB AND SQUEEZE COMPLAINANT DAVONDRIA EVANGELISTA'S BREASTS AND
         TOLD HER THAT TiiEY WERE GETI1NG BIG, BUT DENIED TIIAT TinS WAS FOR A SEXUAL REASON. TilE DEFENDANT
         111EN ADMIITED TO RUBBING ON BOTH COMPLAINANTS' BREASTS. THE DEFENDANT TIIEN STATED TIIATHE WAS JUST
         ADMIITING TO WHAT THE COMPLAINANTS ALLEGATIONS WERE BECAUSE HE THOUGHf IT WOULD "GO BEITER FOR
         lllM IN COURT". THE AFFIANT ENDED THE INTERVIEW/CONFESSION AT TIIA T POINT.




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;:::; AGAINST TilE PEACE AND DIGNITY OF TilE STATE.
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~                                                                 COMPLAINT
 <l.J
u
    70-71).      The next time he called her into his bedroom,         told


r   her to remove her underwear and lay down on his bed.            He then



r   lay .down next to her and put his index finger in her vagina

    (R.R. 5, 73-76).       Appellant threatened to kill her if she told

r   anyone (R.R. 5, 72, 80).        Her testimony was inconsistent as to


r   whether this type of touching occurred more than ?nee.

    initially testified that appellant never again touched her in
                                                                        She



r   a way that he shouldn't have (R.R. 5, 81), but admitted that


r   she told the prosecutor that it had happened five times (R.R.

    5, 82) and went on to testify that he penetrated her vagina

r   with his finger a total of three times (R.R. 5, 82-87).


r        Datavia eventually told her aunt about the touching when

    they were together in the restroom of a restaurant (R.R.5, 88-

r   89, 101-102).      Her outcry was confirmed by her mother, Thelma


r   Choice

    (R.R .. 5,
              (R.R.   6,

                 57-61).
                           34),   and her sister,   Davondria Evangelista

                             The police were contacted, and DetectJ_ve

r   Jackie Blanchard of the Humble Police Department determined


r   that the first officer was contacted on October 23, 2010, and

    the alleged abuse occurred the prior week.          Tasha Rogers-James
r   conducted a forensic interview on        Octob~r   25, 2010.   She found

r   that the complainant was able to distinguish between the truth


r   and a lie, and was able to disclose details about the sexual



!   c:\appeals\choice\friv. brief                                          4



r
    abuse (R.R. 5, 39-40, 45).

r        There was no physical or biological evidence of abuse and


r   no witnesses to the alleged sexual misconduct.

    not testify at the guilt/innocence phase of trial.
                                                                      Appellant did

                                                                             However,

r   Detective    Blanchard      testified        that    Appellant    came    to   the


r   station voluntarily on October 26,

    the complainant         (R.R.   5,    22).
                                                        2010, and denied abusing

                                                  He returned on October 29,
r
L   2010,    and gave   a    taped statement in which he               admitted to


r   sticking    his    fingers      inside       of   the   child's

    contended that the complainant had been wetting the bed and he
                                                                       vagina,     but



r   was just trying to make her realize she shouldn't sleep so


r   soundly, and that he was checking to see if she were wetting

    the bed (R.R. 5, 23-25).

r                                        Discussion


r       . The elements of the offense of Aggravated Sexual Assault

    of a Child as alleged in the indictment are set forth in Texas
r   Penal Code, Sec. 22.021:

r           Sec. 22.021. Aggravated Sexual Assault


r               (a)   A person commits an offense:
                       (1) If the person:
                            (B) intentionally or knowingly:

r                                (i) causes the penetration of the
                           mouth or sexual organ of a child by any
                           means, and

r
    c:\appeals\choice\friv. brief                                                    5



r
                                                                     5



 1             MS. BYROM:   The State calls Dr. Lawrence Thompson.

 2             THE COURT:   Thank you.

 3             Whenever you're ready.

 4                            DR. L. THOMPSON,

 5   having been duly sworn, testified as follows:

 6                           DIRECT EXAMINATION

 7   BY MS. BYROM:

 8        Q.   Good morning, Dr. Thompson.       How are you?

 9        A.   I'm fine.    How are you doing?

10        Q.   Good.

11             If you'd please introduce yourself by name to the

12   ladies and gentlemen of the jury.

13        A.   Yeah, my name is Dr. Lawrence Thompson Jr.

14        Q.   Dr. Thompson, where do you work?

15        A.   I work at the Harris County Children's Assessment

16   Center.

17        Q.   Okay.   And what do you do at the Children's

18   Assessment Center?

19        A.   I'm the director of therapy and psychologica.l

20   services there.

21        Q.   Okay.   What sort of training and background and

22   experience do you have to become a director of psychological/

23   services there?

24        A.   Well,   I have a bachelor's degree in English and a

25   bachelor's degree in psychology from Shriner University, a
                                                                         6



 1   little small liberal arts college really in Kerrville, Texas,

 2   Also have a master's degree in the clinical psychology and a

 3   doctorate in clinical psychology from the University of

 4   Michigan.

 5        Q.     And how long have you been practicing?

 6        A.     As a fully licensed psychologist, since 2001.

 7        Q.     Okay.   And where have you spent the majority of your

 8   career?

 9        A.     At the Children's Assessment Center.

10        Q.     And what sort of things have you done at the

11   Children's Assessment Center?

12        A.     Well, I came on to start with as a staff psychologist

13   there, and at that time my job responsibilities were primarily

14   seeing patients, individual therapy, group therapy,

15   psychological evaluations, suicide assessments, homicide

16   assessments, things of that nature.

17               Became director of psychological services and

18   research in about,    I think 2005, and had a lot of the same

19   responsibilities, but more supervisory responsibilities, and

20   ultimately became the director of therapy and psychological

21   services.    The agency combin!=d a couple of mental health

22   divisions that I oversee.     And now I still provide some direct

23   services to patients, but we have a team of over 30 masters and

24   doctorate level mental health professionals and I supervise all

25   those folks' work at some level or another.
                                                                             7




     1        Q.   Dr. Thompson, as a part of your practice, your



                                        -- -
     2   clinical practice, have you ever had a patient by the name of

     3   Datavia Evangelista?

     4        A.   I have not.

     5        Q.   Okay.     Have you testified here in Harris County

     6   before as an expert?

     7        A.   I have.

     8        Q.   Would you say that's been on few or many occasions?

     9        A.   Many times.

    10        Q.   And is it fair to say that you're here to lend your

    11   expertise regarding psychology of victims of    ch~-~9-~exual   abuse

    12   to the jury today?

    13        A.   That's correct.

    14        Q.   Okay.     Dr. Thompson, based on your training and your

    15   experience, would you say that there's some general categories

    16   that a child might exhibit, behavior that a child might exhibit

    17   if they're the victim of sexual abuse?

    18        A.   There are some symptoms that we tend to see

    19   heightened in most kids.

    20        Q.   Okay.     Would you mind explaining to the ladies and

    21   gentlemen of the jury kind of some general areas of concern.

    22        A.   Uh-huh.     Well, depression is one thing that we see

    23   heightened oftentimes in kids who have been sexually abused.

    24   Depression,   just sadness, crying, sleep difficulties, appetite

    25   difficulties, fatigue,    those types of things can be heightened




0
...,·


                                           CAUSE NO. 1284277

        STATE OF TEXAS                               §       IN THE 176th

        vs.                                          §       DISTRICT COURT OF

        WILLIE CHOICE                          §             ~SCOUNTY,TEXAS



                                              ORDER


               ON TillS THE       d3        day of       ff&t,-c,L2012, came to be heard the
        State's Motion In Limine, and it is hereby ORDERED that said motion is:




        _ _ _ _ _ _ _ Denied.




               SIGNED AND ENTERED this the           J-3      day of   rflc;;-o-c/.-zm2


                                                                                  ----    ,,
