                   05-12-00218-CR

         IN THE COURT OF APPEALS
      FOR THE FIFTH DISTRICT OF TEXAS
                 AT DALLAS

            _________________________

        GAYLAND LAMONT EDWARDS,
                   Appellant

                            v.

             THE STATE OF TEXAS,
                          Appellee

            _________________________

    On appeal from the Criminal District Court No. 7
                of Dallas County, Texas
                Cause No. F10-55217-Y
            _________________________

              APPELLANT’S BRIEF
            _________________________


                                    Counsel of Record:

Lynn Richardson                     Kathleen A. Walsh
Chief Public Defender               Assistant Public Defender
                                    Dallas County Public Defender’s Office
Katherine A. Drew                   State Bar Number: 20802200
Chief, Appellate Division           133 N. Riverfront Blvd., LB 2
                                    Dallas, Texas 75207-399
                                    (214) 653-3550 (telephone)
                                    (214) 653-3539 (fax)

              ATTORNEYS FOR APPELLANT
                                     LIST OF PARTIES

APPELLANT
Gayland Lamont Edwards

APPELLANT’S ATTORNEYS
AT TRIAL
Allan Fishburn
State Bar No. 07049110
211 N. Record St., Suite 450
Dallas, TX 75202

ON APPEAL
Kathleen A. Walsh
Assistant Public Defender
Dallas County Public Defender’s Office
State Bar No. 20802200
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399

STATE’S ATTORNEYS
AT TRIAL
Rachel Burris
State Bar No. 24030870
Meredith Behgooy
State Bar No. 24039201
Assistant District Attorneys

ON APPEAL
Craig Watkins
(or his designated representative)

Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399




                                            ii
                                            TABLE OF CONTENTS
LIST OF PARTIES.................................................................................................. ii
INDEX OF AUTHORITIES................................................................................... iv
STATEMENT OF THE CASE.................................................................................1
ISSUES PRESENTED..............................................................................................2
                                           POINT OF ERROR NO. 1

            The trial court abused its discretion in admitting extraneous offense
                                           evidence.

                                           POINT OF ERROR NO. 2

               The evidence is insufficient to support the trial court’s order for
                            Appellant to pay $806 in court costs.

STATEMENT OF FACTS .......................................................................................2
SUMMARY OF THE ARGUMENT .......................................................................3
          Point of Error No. 1 .......................................................................................3
          Point of Error No. 2 .....................................................................................13
ARGUMENT ............................................................................................................4
POINT OF ERROR NO. 1........................................................................................4
          Pertinent Facts................................................................................................4
          Applicable Law..............................................................................................5
              Rule 404(b) ...............................................................................................5
              Rule 105(b) ...............................................................................................6
          Analysis..........................................................................................................7
          Conclusion .....................................................................................................9
POINT OF ERROR NO. 2......................................................................................10
          Pertinent Facts..............................................................................................10
          Applicable Law............................................................................................11
          Analysis........................................................................................................12
PRAYER.................................................................................................................13
CERTIFICATE OF SERVICE ...............................................................................13


                                                               iii
                                      INDEX OF AUTHORITIES
Cases
Armstrong v. State,
  340 S.W.3d 759 (Tex. Crim. App. 2011)................................................................. 11
Gonzalez v. State,
 304 S.W.3d 838 (Tex. Crim. App. 2010)................................................................... 5
Hinds v. State,
  970 S.W.2d 33 (Tex. App. - Dallas 1998, no pet.) .................................................... 6
Hitt v. State,
  53 S.W.3d 697 (Tex. App. - Austin 2001, pet. ref'd) ................................................. 6
Jenkins v. State,
  993 S.W.2d 133 (Tex. App. - Tyler 1999, no pet.) .................................................... 6
Johnson v. State,
  No. 14-11-00693-CR, 2012 Tex. App. LEXIS 8657 (Tex. App.—Houston [14th
  Dist.] October 16, 2012 no pet. h.)..................................................................... 11, 12
Mayer v. State,
 309 S.W.3d 552 (Tex. Crim. App. 2010)................................................................. 11
Mayes v. State,
 816 S.W.2d 79 (Tex. Crim. App. 1991)..................................................................... 6
Morrison v. State,
 845 S.W.2d 882 (Tex. Crim. App. 1992)................................................................... 7
Rankin v. State,
  974 S.W.2d 707 (Tex. Crim. App. 1996)............................................................. 7, 10
Rogers v. State,
  853 S.W.2d 29 (Tex. Crim. App. 1993)..................................................................... 6
Statutes
TEX. CODE CRIM. PROC. art. 38.37 ............................................................................ 6, 9
TEX. CODE CRIM. PROC. art. 103.001 .......................................................................... 11
TEX. CODE CRIM. PROC. art. 42.16 .............................................................................. 11
TEX. GOV’T CODE § 501.014(e)................................................................................... 12
TEX. PENAL CODE § 22.021(a)(1)(B)(i)......................................................................... 5
TEX. PENAL CODE § 22.021(a)(1)(B)(ii)................................................................... 1, 5
TEX. PENAL CODE § 22.021(a)(2)(B)............................................................................. 1




                                                       iv
Rules
TEX. R. EVID. 105(b).................................................................................................. 6, 7
TEX. R. EVID. 403 .......................................................................................................... 4
TEX. R. EVID. 404(b)...................................................................................................... 5




                                                              v
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Appellant, Gayland Edwards, and submits this brief on

appeal from a conviction for aggravated sexual assault of a child under 14 years of

age in the Criminal District Court No. 7 of Dallas County, Texas, the Honorable

Michael R. Snipes, Judge presiding.

                         STATEMENT OF THE CASE

       Appellant was charged by indictment with aggravated sexual assault of a

child pursuant to TEX. PENAL CODE § 22.021(a)(1)(B)(ii) and (a)(2)(B). (CR: 10).

A jury trial was held on Appellant’s plea of not guilty. (RR2-4). The jury

convicted Appellant of aggravated sexual assault of a child, as charged in the

indictment. (RR3: 186-87; CR: 30).

       Appellant elected to have the trial court assess punishment. (RR3: 188). At

the punishment hearing, Appellant pled true to the enhancement paragraph

alleging a prior conviction for burglary of a habitation. (RR3: 190). The trial court

found the enhancement paragraph true and assessed punishment at 60 years’

imprisonment. (RR3: 227). Appellant was sentenced on February 9, 2012. (RR3:

227-28; CR: 31-33). The motion for new trial was overruled as a matter of law.

(CR: 35). The notice of appeal and the trial court’s certification of the defendant’s

right of appeal were timely filed. (CR: 34, 36).
                             ISSUES PRESENTED

                           POINT OF ERROR NO. 1

       The trial court erred by failing to give a limiting instruction at the
              time the extraneous offense evidence was admitted.

                           POINT OF ERROR NO. 2

        The evidence is insufficient to support the trial court’s order for
                     Appellant to pay $806 in court costs.

                           STATEMENT OF FACTS

       Kaylan Edwards was 17 years old at the time of trial and a junior in high

school. (RR3: 11-12, 14). She testified that when she was younger than 12 years

old, right before she went into the sixth grade, Appellant called her into his room

to give him a massage and then made her perform oral sex. (RR3: 20-23). Kaylan

testified that Appellant made her perform oral sex on him somewhere between five

and ten times over a period of several months. (RR3: 24). Kaylan testified that

Appellant also penetrated her vagina with his penis on many occasions, more than

ten times, with the last incident taking place in the summer before her freshman

year in high school. (RR3: 28-31). Kaylan did not tell anyone about the assault

until she was 15 years old. (RR3: 35-36). The first person she told was her

boyfriend, Emmanuel Alexander Lamas. (RR3: 35-36, 42-46). A couple of months

later, she told her best friends, Yvonne and Marisol. (RR3: 36, 51-59, 60-63).

Based on what they said to her, Kaylan told her mom. (RR3: 37, 77-80). The

police were called, Appellant was arrested and Kaylan was interviewed at the

Dallas Children’s Advocacy Center. (RR3: 37-38, 82-83, 115-16).


                                         2
       During the punishment hearing, the State presented evidence pertaining to

Appellant’s prior convictions for two misdemeanor thefts and a burglary of a

habitation. (RR3: 191; State Exhibit Nos. 5, 6 & 7). Appellant testified on his own

behalf and presented testimony from numerous family members, friends, and one

of his employers. (RR3: 192-224).

                      SUMMARY OF THE ARGUMENT

       Point of Error No. 1. The evidence of vaginal penetration presented by

the State constituted extraneous offense evidence. Appellant was entitled to an

instruction limiting the jury’s use of such extraneous offense evidence at the time

the evidence was admitted. Under the circumstances of this case and the emphasis

placed on such evidence by the prosecutor, without the trial court having given the

limiting instruction at the time the evidence was admitted, this Court cannot be

sure that such evidence was used by the jury for its limited purpose. Since the real

possibility exists that the jurors used this evidence improperly by forming an

indelible perception of the Appellant that worked unfairly to his inevitable

detriment, Appellant should be given a new trial.

       Point of Error No. 2. The Judgment should be reformed to delete the trial

court’s order requiring Appellant to pay court costs in the amount of $806.00. The

Texas Code of Criminal Procedure specifically provides that a “cost is not payable

by the person charged with the cost until a written bill is produced or is ready to be

produced, containing the items of cost, signed by the officer who charged the cost




                                          3
or the officer who is entitled to receive payment for the cost.” No such bill of costs

appears in the record of this case.

                                      ARGUMENT

                            POINT OF ERROR NO. 1

        The trial court erred by failing to give a limiting instruction at the
               time the extraneous offense evidence was admitted.

Pertinent Facts.

       The Indictment alleged that Appellant committed the offense of aggravated

sexual assault by causing his sexual organ to contact and penetrate the mouth of

the child. (CR: 10). Prior to trial, the State gave notice of its intent to introduce

extraneous offense evidence showing that Appellant also penetrated the child’s

vagina on numerous occasions. (CR: 17-18; RR3: 6). Prior to the start of trial,

Appellant objected to the admission of this extraneous offense evidence under

TEX. R. EVID. 404(b) and 403. (RR3: 6-7). The trial court overruled the objection

under the theory that such alleged conduct is “inextricably intertwined with the

charged offense as res gestae.” (RR3: 7). The trial court also overruled the Rule

403 objection, making a finding that the evidence was more probative than

prejudicial. (RR3: 7).

       During trial, the complainant testified about the conduct pertaining to the

oral sex allegations in the Indictment and testified that Appellant also penetrated

her vagina with his penis on many occasions, more than ten times, with the last

incident taking place in the summer before her freshman year in high school.



                                          4
(RR3: 28-31). After the complainant finished her testimony on direct examination,

Appellant requested that the trial judge give the jury a limiting instruction on the

extraneous evidence related to vaginal penetration. (RR3: 41). The judge declined

to give such an instruction, stating that he did not believe that the evidence

constituted extraneous offense because he had already ruled that the alleged

conduct was inextricably intertwined. (RR3: 41). The judge did, however, include

a limiting instruction in the jury charge. (CR: 27).

Applicable Law.

       Rule 404(b).

       Each discretely defined act in Section 22.021 of the Penal Code constitutes

a discrete offense. Gonzalez v. State, 304 S.W.3d 838, 849 (Tex. Crim. App.

2010). Under the statute, penetration of the mouth constitutes a discrete act from

penetration of the sexual organ and Appellant can be prosecuted for each act

separately, even if they occur with a short period of time. Id.; TEX. PENAL CODE §

22.021(a)(1)(B)(ii) and (a)(1)(B)(i). Thus, contrary to the trial court’s ruling,

evidence pertaining to vaginal penetration would be considered extraneous offense

evidence under TEX. R. EVID. 404(b). Rule 404(b) prohibits evidence of other

crimes, wrongs, or acts to prove the character of a person in order to show that he

acted in conformity therewith.

       Same transaction contextual evidence is an exception to the propensity rule

where “several crimes are intermixed, or blended with one another, or connected

so that they form an indivisible criminal transaction, and full proof by testimony,


                                          5
whether direct or circumstantial, of any one of them cannot be given without

showing the others. Rogers v. State, 853 S.W.2d 29, 32 (Tex. Crim. App. 1993)

(relying on the holding in Mayes v. State, 816 S.W.2d 79, 80 (Tex. Crim. App.

1991). However, Appellant has found no cases which hold that discrete acts of

sexual conduct as defined in Section 22.021 of the Penal Code constitutes same

transaction contextual evidence for purposes of Rule 404(b).

      Notwithstanding the above, the Texas Legislature has chosen to make a

specific and limited exception to the prohibition against admission of extraneous

offense evidence. Article 38.37 of the Code of Criminal Procedure allows

introduction of extraneous offenses between a defendant and a child victim under

the age of 17 for the limited purpose of showing the state of mind of the defendant

and child and their relationship. TEX. CODE CRIM. PROC. art. 38.37; Hitt v. State,

53 S.W.3d 697, 705 (Tex. App. – Austin 2001, pet. ref’d); Jenkins v. State, 993

S.W.2d 133, 136 (Tex. App. – Tyler 1999, no pet.); Hinds v. State, 970 S.W.2d 33,

35 (Tex. App. – Dallas 1998, no pet.).

      Rule 105(b).

       TEX. R. EVID. 105(b) states, in pertinent part:

      When evidence which is admissible as to one party or for one
      purpose but not admissible as to another party or for another purpose
      is admitted, the court, upon request, shall restrict the evidence to its
      proper scope and instruct the jury accordingly…

      In Rankin v. State, the Court of Criminal Appeals that Rule 105(b) requires

a limiting instruction, upon proper request, when the evidence is admitted. Rankin



                                         6
v. State, 974 S.W.2d 707, 713 (Tex. Crim. App. 1996). In reaching this

conclusion, the Court reasoned that because the spirit of the rule and the

contemplation of the rule-makers includes the notion that limiting isntructions

actually curb the improper use of evidence, and that the rule should act in a way

that not only ‘restricts the evidence to its proper scope,” but does so as effectively

as possible, “logic demands that the instruction be given at the first opportunity.”

Id. at 712. The Court opined that an instruction given for the first time during the

jury charge necessarily leaves a window of time in which the jury can contemplate

the evidence in an inappropriate manner. Id. at 712. “Jurors cannot be expected to

know exactly how to use the evidence unless we tell them, nor can we guarantee

that they will “remain open-minded until the presentation of all of the evidence

and instructions…” Id. at 712 (citing Morrison v. State, 845 S.W.2d 882, 887

(Tex. Crim. App. 1992). Because a court cannot determine how jurors have used

admitted evidence, “the possibility exists that, unless we instruct the jury on

evidence concurrently with its admittance, jurors may, unbeknownst to us, use the

evidence improperly by forming an indelible perception of the defendant that will

work unfairly to this inevitable detriment.” Id.

Analysis.

       Appellant was charged with aggravated sexual assault by oral penetration.

Evidence of vaginal penetration clearly constituted extraneous offense evidence.

Under Rule 105(b), Appellant was entitled to an instruction limiting the jury’s use




                                          7
of such extraneous offense at the time the evidence was admitted. The trial court’s

refusal to give such an instruction was clearly error.

       Moreover, Appellant was harmed by the trial court’s failure to give such an

instruction. More time during the trial was spent on the evidence pertaining to

vaginal penetration than was spent on the evidence pertaining to the offense

charged in the indictment. The complainant’s testimony regarding oral penetration

can be fairly characterized as somewhat limited and vague. Indeed, the entirety of

such testimony consisted of three pages out of the 41 pages of the record

constituting the complainant’s testimony on direct examination. The description of

what occurred regarding oral penetration consisted of the complainant’s testimony

that when Appellant called her into the room to give him a massage, “he motioned

for me to go lower than was proper and give him oral sex”….”he pushed on my

head towards his penis”…”He told me to suck it”…[when it was done] “he told

me to leave”…it happened more than five times, less than 10 times over a couple

of months. (RR3: 20-23).

       On the other hand, the testimony pertaining to vaginal penetration was

lengthy, detailed, and emotional. Based on the prosecutor’s questioning of the

complainant about the vaginal penetration, the jury heard how and where

Appellant laid her down, what clothes she had on and how they were removed, the

position she was in when Appellant penetrated her and exactly how Appellant

penetrated her, and how the penetration of her vagina felt. (RR3: 25-27).

Furthermore, the jury heard that the vaginal penetration occurred more than ten


                                          8
times and that the vaginal penetration contintued for many years until the summer

before her freshman year. (RR3: 27-28). In addition, the jury heard about a

specific instance when the complainant’s brother was asleep during one of the

instances of vaginal penetration and heard that Appellant required her to engage in

such activity in exchange for things she wanted, such as new clothes or shoes.

(RR3: 31-34). And finally, the prosecutor’s focus during jury argument was

clearly on the evidence of vaginal penetration. Although the prosecutor referenced

the complainant’s description of the first incident of oral penetration, she went into

detail about the complainant’s testimony regarding the vaginal penetration and

referred specifically to the complainant’s emotion as she described the incidences

of vaginal penetration, stating:

              You heard her describe for you when he put her in the room
       and he told her to take off her underwear and her pants and he
       pushed her, got her into the position he wanted her in, bent her over
       as she sat on the bed and then put his penis in her vagina.

              And when it stopped, he sent her away. And you felt when
       she was describing that for you that she was reliving it, her fear, her
       anger, her hurt through all of that. It was palpable in here. And you
       knew at that moment that Kaylen Edwards was telling you the truth
       about what had happened with her and her father.

(RR3: 183).

Conclusion.

       The vaginal penetration evidence was admissible under Article 38.37 for

the limited purpose of showing the state of mind of the defendant and child and

their relationship. However, under the circumstances of this case and the emphasis



                                          9
placed on such evidence by the prosecutor, without the trial court having given the

limiting instruction at the time the evidence of vaginal penetration was admitted,

this Court cannot be sure that such evidence was used by the jury for its limited

purpose. Accordingly, the real possibility exists that the jurors used this evidence

improperly by forming an indelible perception of the Appellant that worked

unfairly to his inevitable detriment. Rankin, 974 S.W.2d at 712. Indeed, as noted

by the Court of Criminal Appeals:

         The purpose of…midtrial limiting instructions is to insure that the
         jurors realize the proper use of each bit of evidence as it comes in.
         Where the jurors have been accumulating their impressions of the
         evidence over the course of the trial, it is impossible for them to go
         back at the close of the trial and reassess the evidence in light of the
         limiting instruction, even if they could appreciate which items of
         evidence the instruction was supposed to apply to.

(emphasis added). Id. (quoting Professors Wright and Graham, Federal Practice

and Procedure § 5065).

         Appellant is entitled to a new trial.

                              POINT OF ERROR NO. 2

          The evidence is insufficient to support the trial court’s order for
                       Appellant to pay $806 in court costs.

Pertinent Facts.

         The Judgment of Conviction sets forth court costs in the amount of

$806.00. (CR: 31). The clerk’s record filed in this case does not contain a bill of

costs.




                                            10
Applicable Law.

       The Texas Code of Criminal Procedure specifically provides that a “cost is

not payable by the person charged with the cost until a written bill is produced or

is ready to be produced, containing the items of cost, signed by the officer who

charged the cost or the officer who is entitled to receive payment for the cost.”

TEX. CODE CRIM. PROC. art. 103.001; Johnson v. State, No. 14-11-00693-CR,

2012 Tex. App. LEXIS 8657 at * 4 (Tex. App.—Houston [14th Dist.] October 16,

2012 no pet. h.) (not yet published). Costs so charged need not be included in the

trial court’s judgment to be effective because the obligation of a convicted person

to pay court costs is established by statute, not by court order. Armstrong v. State,

340 S.W.3d 759, 766-67 (Tex. Crim. App. 2011). Yet, the Code of Criminal

Procedure also mandates that judgments of conviction assess costs against the

defendant. TEX. CODE CRIM. PROC. art. 42.16. Consequently, a claim of

insufficient evidence to support court costs is reviewable on direct appeal in a

criminal case. See Armstrong, 340 S.W.3d at 767. This is true even in the absence

of an objection to the judgment. Johnson, 2012 Tex. App. LEXIS 8657 at * 6-7

(holding that the sufficiency of the evidence to support assessments of costs

contained within judgments may be directly appealed without the necessity of

having preserved the issue below); see also Mayer v. State, 309 S.W.3d 552, 555

(Tex. Crim. App. 2010) (holding that a sufficiency of the evidence claim regarding

a judgment, even the assessment of attorney’s fees as costs, need not be preserved

and is not waived by the failure to object).


                                          11
Analysis.

       The evidence is clearly insufficient to support the trial court’s assessment

of $806.00 in court costs. The record contains no written bill of costs. However,

the judgment is formalized and could be acted upon in an attempt to collect the

specified amount of $806.00. Indeed, TEX. GOV’T CODE § 501.014(e) requires the

Texas Department of Criminal Justice to withdraw from an inmate’s account the

amount ordered by a court as payment for court costs. See also Johnson, 2012

Tex. App. LEXIS 8657 at * 6.

       Because there is no evidence in the record to support the trial court’s

assessment of $806 as court costs, the judgment should be reformed to delete the

specific amount of costs. Id. at *8.




                                        12
                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

Court reverse the conviction and remand the cause for a new trial. Further,

Appellant prays that this Court will reform the Judgment to delete the assessment

of court costs in the amount of $806.00. Appellant further prays for any such relief

to which he may be entitled.

                                         Respectfully submitted,
                                         Lynn Richardson
                                         Chief Public Defender


                                         _________________________________
                                         Kathleen A. Walsh
                                         Assistant Public Defender
                                         State Bar No. 20802200
                                         Frank Crowley Courts Building
                                         133 N. Riverfront Blvd., LB-2
                                         Dallas, TX. 75207-4399
                                         (214) 653-3550 (telephone)
                                         (214) 653-3539 (fax)

                          CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the foregoing brief was served on the

Dallas County Criminal District Attorney’s Office (Appellate Division), 133 N.

Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by hand delivery on

the 29th day of November, 2012 and by email to Michael R. Casillas, Chief of the

Appellate Division.

                                         _________________________________
                                         Kathleen A. Walsh



                                        13
