                                                                              PD-0796-15
                            PD-0796-15                      COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                            Transmitted 6/29/2015 5:15:37 PM
                                                               Accepted 7/1/2015 1:27:19 PM
                                                                              ABEL ACOSTA
                 IN THE COURT OF CRIMINAL APPEALS                                     CLERK
                      FOR THE STATE OF TEXAS

JONATHAN LEWIS HELM,
    APPELLANT

                   V.            COA NO. 02-14-00043-CR
                                 TRIAL COURT NO. 1276053D
THE STATE OF TEXAS,
    APPELLEE




       APPEALED FROM CAUSE NUMBER 1276053D, IN THE
      DISTRICT COURT NUMBER FOUR, TARRANT COUNTY,
   TEXAS; THE HONORABLE MIKE THOMAS, JUDGE PRESIDING.


  APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


                         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
                         bill@billraylawyer.com

***ORAL ARGUMENT IS NOT REQUESTED**
                                                            July 1, 2015




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

JOHNATHAN LEWIS HELM                        APPELLANT
    c\o Texas Dept. of Criminal
    Justice, Institutional
    Division, Huntsville, Texas


HONORABLE TERRENCE BAJUK                    ATTORNEY FOR APPELLANT
    P.O. Box 210863                         AT TRIAL
    Bedford, Texas 76095


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 W. Belknap St.                      TARRANT COUNTY, TEXAS
    Ft. Worth, Tx. 76196-0201

HONORABLE JAMES GIBSON                      ASSISTANT CRIMINAL DISTRICT
    401 W. Belknap St.                      ATTORNEY
    Ft. Worth, Tx. 76196-0201               TARRANT COUNTY, TEXAS


HONORABLE MIKE THOMAS                       JUDGE, CRIMINAL DISTRICT
    401 W. Belknap St.                      COURT NUMBER FOUR
    Ft. Worth, Texas 76196                  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

GROUNDS FOR REVIEW

GROUND FOR REVIEW NUMBER ONE                              7

      THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT
      APPELLANT SEXUALLY ASSAULTED THE COMPLAINANT
      IN THE STATE OF TEXAS, IN THAT THE ONLY TESTIMONY
      ON THIS MATTER WAS IMPEACHMENT EVIDENCE OF THE
      COMPLAINANT, WHO DENIED APPELLANT HAD EVER
      SEXUALLY ASSAULTED HER IN THE STATE OF TEXAS

PRAYER                                                    11

CERTIFICATE OF SERVICE                                    12

CERTIFICATE OF COMPLIANCE                                 12




PETITION FOR DISCRETIONARY REVIEW, PAGE 3
                          INDEX OF AUTHORITIES
Cases                                                                    Page

Barley v. State, 906 S.W.2d 27 (Tex.Crim.App. 1995)                      9

Cherb v. State, 472 S.W.2d 273, 279 (Tex.Crim.App. 1971)                 8

Hughes v. State, 4 S.W.3d 1, 5 (Tex.Crim.App. 1999)                      9

Jackson v. Virginia, 443 U.S.307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)   11

Key v. State, 492 S.W.2d 514, 516 (Tex.Crim.App.1973)                    8

Klein v. State, 191 S.W.3d 766, 782 (Tex.App. – Fort Worth, 2006),       9
       reversed 273 S.W.3d 297 (Tex.Crim.App. 2008)

McMurrough v. State, 995 S.W.2d 944, 948 (Tex. App.—Fort Worth           11
    1999, no pet.)

Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.– San Antonio, 1991,      8
pet.ref’d)

Shivers v. State, 374 S.W.2d 672 (Tex.Crim.App. 1964)                    8

Villyard v. State, 01-13-00589 (Tex.App-Houston [1st Dist.],             9
      May 15, 2014)

Wall v. State, 417 S.W.2d 59; (Tex.Crim.App/ 1967)                       8

Williams v. State, 565 S.W.2d 63 (Tex.Crim.App. 1978)                    8

Statutes

Rule 607, Texas Rules of Evidence                                        8

Rule 801 (e)(1)(B), Texas Rules of Evidence                              10



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 offenses of

Sexual Assault of a Child (Count Two) and Prohibited Sexual Conduct (Count

Three). Appellant was charged by indictment in cause number 1276053D with the

offenses of Continuous Sexual Abuse of a Child Under 14 (Count One),

Aggravated Sexual Assault of a Child (Count Two), Sexual Assault of a Child

(Count Three), and Prohibited Sexual Conduct (Count Four). Originally, the State

waived counts one, two, and three, and intended to proceed on count four only.

CR, Pages 68-69, RR-2, Page 4. Ultimately, the State waived count two, and

proceeded on the other three, with count three becoming count two, and count four

becoming count three respectively.

      The jury found Appellant not guilty in count one, and guilty in counts two

and three. CR, Pages 95-96; 111-119; RR-4, Pages 93-94.

      Appellant elected for the jury to assess punishment. The jury sentenced

Appellant to twenty years in count two and ten years in count three, in the

Institutional Division of the Texas Department of Criminal Justice. The trial court

ordered that the sentences run consecutively. CR, Pages 107-108, 112-119; RR-5,


PETITION FOR DISCRETIONARY REVIEW, PAGE 5
Pages 29-33.

      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.




     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      Appellant was sentenced on January 15, 2015. Notice of Appeal was timely

filed. Appellant timely filed his brief in the Court of Appeals on June 17, 2014.

The State timely filed its brief on September 26, 2014.

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

October 31, 2014. The Court of Appeals affirmed Appellant’s conviction on June

4, 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 EVIDENCE WAS INSUFFICIENT TO PROVE THAT
      APPELLANT SEXUALLY ASSAULTED THE COMPLAINANT IN
        THE STATE OF TEXAS, IN THAT THE ONLY TESTIMONY
       ON THIS MATTER WAS IMPEACHMENT EVIDENCE OF THE
         COMPLAINANT, WHO DENIED APPELLANT HAD EVER
         SEXUALLY ASSAULTED HER IN THE STATE OF TEXAS

      The State failed to prove venue in this case. The complainant testified that

she had sex with Appellant, and ended up getting pregnant, but the sex did not

occur in Tarrant County. The complainant specifically stated that nothing

happened at Noel Ranch, which is the street she lived on in Tarrant County with

Appellant. RR-3, Pages 73-74 and 80. The complainant testified that she had sex

with Appellant in Oklahoma one time in November of 2010 and never had sex with

Appellant in Texas. RR-3, Pages 89, and 96-97.

      The Court of Appeals held that since Appellant did not make a specific

request for a limiting instruction at the time the evidence was admitted, there was

no error. Opinion, pages 2-5. Further, the Court of Appeals stated that the

complainant wrote a letter, admitted without objection, that specifically stated that

Appellant had sex with her in Fort Worth. Opinion, at page 4. This letter, State’s

Exhibit 5A, does not confirm the Court of Appeals statement. Specifically, Fort

Worth is not mentioned in the letter. The complainant repeatedly testified that she

only had sex with Appellant in Oklahoma.

PETITION FOR DISCRETIONARY REVIEW, PAGE 7
      Testimony admitted only for impeachment purposes is without probative

value and cannot be considered as substantive evidence to support a judgment. Key

v. State, 492 S.W.2d 514, 516 (Tex.Crim.App.1973); Williams v. State, 565

S.W.2d 63 (Tex.Crim.App. 1978). The jury may consider the inconsistency as

damaging to the witness's credibility, but may not use the evidence substantively.

A statement admitted only for impeachment purposes, is without probative value

and cannot be considered in determining the sufficiency of the evidence to support

the conviction. This has been the law for a long time. Cherb v. State, 472 S.W.2d

273, 279 (Tex.Crim.App. 1971); Wall v. State, 417 S.W.2d 59; (Tex.Crim.App/

1967); Shivers v. State, 374 S.W.2d 672 (Tex.Crim.App. 1964).

      There has always been a danger that a party may attempt to use a prior

inconsistent statement under the guise of impeachment for the primary purpose of

placing before the jury evidence which is not otherwise admissible and which may

be treated as substantial evidence. To prevent this was the purpose of the formerly

required showing of surprise and damage or injury to the calling party's cause

before such testimony was elicited. This is still improper conduct under both the

federal and state versions of Rule 607, Tex.R.Evid., which are almost identical.

See Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.– San Antonio, 1991,

pet.ref’d). A prior inconsistent statement may only be used for impeachment, not


PETITION FOR DISCRETIONARY REVIEW, PAGE 8
as substantive evidence, unless it otherwise falls within an exception to the hearsay

rule. Villyard v. State, 01-13-00589 (Tex.App-Houston [1st Dist.], May 15, 2014.)

      This Court has not squarely addressed this issue. See Barley v. State, 906

S.W.2d 27 (Tex.Crim.App. 1995); Hughes v. State 4 S.W.3d 1, 4 (Tex.Crim.App.

1999). This Court considered the issue in Klein v. State, 191 S.W.3d 766, 782

(Tex.App. – Fort Worth, 2006), reversed 273 S.W.3d 297 (Tex.Crim.App. 2008).

This Court held, at 782 and citing Hughes, supra, that

      “The Texas Court of Criminal Appeals limits such attacks:
      [T]he State's knowledge that its own witness will testify unfavorably
      is a factor the trial court must consider when determining whether the
      evidence is admissible under Rule 403.... [A] trial court abuses its
      discretion under Rule 403 when it allows the State to admit impeachment
      evidence for the primary purpose of placing evidence before the jury
      that was otherwise inadmissible. [Such] impeachment evidence must
      be excluded under Rule 403's balancing test because the State profits
      from the witness' testimony only if the jury misuses the evidence by
      considering it for its truth. Consequently, any probative value the
      impeachment testimony may have is substantially outweighed by its
      prejudicial effect. Hughes v. State, 4 S.W.3d 1, 5 (Tex.Crim.App. 1999).”

      The Court of Criminal Appeals reversal in Klein, supra, was premised on

the idea that the complainant’s testimony at trial was a recent fabrication and

inconsistent testimony, as the complainant had testified that the Appellant had

sexually assaulted her and also had not sexually assaulted her, and was then

admissible under Rule 801 (e)(1)(B) of the Texas Rules of Evidence. Appellant

submits therefore, that the rule of law on a witnesses’ complete denial of an
PETITION FOR DISCRETIONARY REVIEW, PAGE 9
offense is still good law. The only direct testimony of the complainant that

Appellant sexually assaulted her was that such act happened outside the

jurisdiction of the State of Texas. RR-3, Pages 73-74, 80, 89, and 96-97.

      In the present case, the State did exactly what the rule of law should

prevent. In its opening statement, the prosecutor told the jury:

      “And part of what Mark [co-prosecutor] was saying yesterday about
      this case being interesting is that we don’t know what [the complainant]
      is going to say now.” RR-3, Page 15.

      The State called an impeachment witness before calling the complainant

because the State knew she was not going to testify that Appellant had sexually

assaulted her in Texas. The prosecutor cannot claim surprise because he had

interviewed the complainant in the jail the day before. RR-3, Page 67.

      Given that there was no proper evidence to substantiate the allegations of

sexual misconduct as alleged, Appellant submits that no rational trier of fact could

have found all the elements of the crime beyond a reasonable doubt. For these

reasons, Appellant submits that the evidence of impeachment was improperly

considered for substantive evidence, and when that evidence is not considered, as

should be the case, the evidence was insufficient to support a finding of guilty in

Counts Two and Three. Jackson v. Virginia, 443 U.S.307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979).


PETITION FOR DISCRETIONARY REVIEW, PAGE 10
      The Court of Appeals’ holding that the lack of a limiting instruction request

is dispositive is not the correct analysis. The only substantive evidence is that the

State did not prove venue in Texas. Impeachment evidence on this issue is not

proper evidence, and not substantive as proof of venue or any other element.

      Appellant submits that the testimony had a significant or injurious effect on

the jury's verdict such that his substantial rights were affected. McMurrough v.

State, 995 S.W.2d 944, 948 (Tex. App.—Fort Worth 1999, no pet.). Klein, supra

at 785.

      Appellant submits that venue was not proven, even by a preponderance.

Accordingly, the evidence was insufficient to sustain Appellant’s conviction.

                             PRAYER FOR RELIEF

      Appellant Prays that this Honorable Court reverse his conviction and enter a

judgment of acquittal.




PETITION FOR DISCRETIONARY REVIEW, PAGE 11
                          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 Petition for Discretionary Review
was delivered via the electronic filing system to the office of Sharen Wilson,
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

                         CERTIFICATE OF COMPLIANCE
       Pursuant to Rule 9.4 i3, of the Texas Rules of Appellate Procedure, I certify
that this Petition for Discretionary Review filed in this case, has 2141 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 12
                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-14-00043-CR

Johnathan Lewis Helm                      §   From Criminal District Court No. 4

                                          §   of Tarrant County (1276053D)

v.                                        §   June 4, 2015

                                          §   Opinion by Justice Gardner

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/ Anne Gardner_________________
                                          Justice Anne Gardner
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00043-CR


JOHNATHAN LEWIS HELM                                               APPELLANT

                                          V.

THE STATE OF TEXAS                                                      STATE


                                     ----------

     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
                   TRIAL COURT NO. 1276053D

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

      A jury found Appellant guilty of sexual assault of a child under seventeen

and of prohibited sexual conduct and assessed his punishment at twenty years’

and ten years’ imprisonment, respectively.        The trial court ordered the

punishments to run consecutively.      Appellant brings one point attacking the

sufficiency of the evidence. We affirm.


      1
       See Tex. R. App. P. 47.4.
                                The Evidence

      K.A., the complainant, was Appellant’s stepdaughter. K.A. turned sixteen

in November 2010 shortly before Thanksgiving. K.A. said she and Appellant had

sex together during Thanksgiving in November 2010 in Oklahoma. However, on

other occasions, K.A. said the sex occurred in their home in Fort Worth, Texas.

K.A. had a baby in August 2011. DNA showed Appellant was the father.

      Appellant admitted having sex with K.A. on Thanksgiving in Oklahoma in

2010. Appellant conceded doing some research on the charges against him and

said he thought the age of consent in Oklahoma was sixteen.

                              Appellant’s Point

      In one point, Appellant contends the evidence is insufficient to prove he

sexually assaulted K.A. in the State of Texas because the only evidence showing

the offense occurred in Texas was impeachment evidence, which Appellant

maintains had no probative value. See Williams v. State, 565 S.W.2d 63, 65

(Tex. Crim. App. 1978) (stating that evidence admitted for a limited purpose may

not be used for another purpose); Key v. State, 492 S.W.2d 514, 516 (Tex. Crim.

App. 1973) (holding that evidence admitted only for impeachment purposes has

no probative value and cannot be used when determining sufficiency of the

evidence); Cherb v. State, 472 S.W.2d 273, 279 (Tex. Crim. App. 1971) (same).

Appellant argues venue was an element of the offenses and had to be proved

beyond a reasonable doubt.




                                       2
                                  Discussion

      Venue is not an element of Appellant’s two offenses. See Tex. Penal

Code Ann. §§ 22.011(a)(2)(A), 25.02(a)(2) (West 2011); Schmutz v. State, 440

S.W.3d 29, 35 (Tex. Crim. App. 2014).        Venue need be proven by only a

preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 13.17 (West

2015); Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983), overruled on

other grounds by Schmutz, 440 S.W.3d at 37–39 (holding venue error does not

require automatic reversal but is subject to a harm analysis under rule 44.2(b) of

the Texas Rules of Appellate Procedure). Evidence is sufficient to prove venue if

a jury may reasonably conclude that the offense was committed in the county

alleged. Knabe v. State, 836 S.W.2d 837, 839 (Tex. App.—Fort Worth 1992, pet

ref’d); Schmutz v. State, No. 06-12-00059-CR, 2013 WL 1188994, at *2 (Tex.

App.—Texarkana March 22, 2013) (mem. op., not designated for publication),

aff’d, 440 S.W.3d at 31.

      The party opposing evidence has the burden of objecting and requesting a

limiting instruction when the other party introduces the evidence. Turro v. State,

950 S.W.2d 390, 400 (Tex. App.—Fort Worth 1997, pet. ref’d). If evidence is

received without a proper limiting instruction, it becomes part of the general

evidence in the case and may be used as proof to the full extent of its rational

persuasive power. See Tex. R. Evid. 105(b)(1); Hammock v. State, 46 S.W.3d

889, 895 (Tex. Crim. App. 2001); Navarro v. State, 280 S.W.3d 405, 406–07

(Tex. App.—Amarillo 2008, no pet.) (stating where prior inconsistent statement of


                                        3
assault victim was offered to impeach her at trial and was admitted without a

limiting instruction, it was admissible for substantive purposes; court sustained

the jury’s finding of guilty in face of challenge to legal sufficiency on appeal);

Turro, 950 S.W.2d at 400.

      K.A.’s earlier statements identifying Fort Worth as the location of the

offenses came into evidence on numerous occasions.                For example, the

investigator from Child Protective Services, over a hearsay objection, said K.A.

told her the abuse happened in their home in Fort Worth. See Poindexter v.

State, 153 S.W.3d 402, 406–09 (Tex. Crim. App. 2005) (holding that once a trier

of fact has weighed the probative value of otherwise inadmissible hearsay

evidence, an appellate court cannot deny that evidence probative value or ignore

it in its sufficiency review). K.A. herself later twice admitted that she had told the

CPS investigator the offenses happened in their house in Fort Worth. Over a

leading objection, K.A. admitted writing the criminal investigator a letter in which

she identified Fort Worth as the location of the offenses. The letter itself was

admitted without any objection.         K.A. even admitted telling the criminal

investigator it all occurred in Fort Worth.      Finally, the caseworker from the

adoption center that K.A. had used said—again without any objection—that K.A.

reported to the center’s admissions department that the sexual encounter

happened in Fort Worth.      On none of these instances did Appellant request

contemporaneous limiting instructions when the evidence was admitted.             We

hold the evidence was admitted for all purposes. See Tex. R. Evid. 105(b)(1).


                                          4
With this evidence, we hold that a jury could have reasonably concluded that the

offense was committed in Tarrant County as alleged. See Knabe, 836 S.W.2d at

839. We overrule Appellant’s point.

                                  Conclusion

      Having overruled Appellant’s point, we affirm the trial court’s judgments on

the two counts.



                                                  /s/ Anne Gardner
                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

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

DELIVERED: June 4, 2015




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