NO. 06-15-00157-CR IN THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OFTEXAS AT TEXARKANA, TEXAS
NICHOLAS EDWARD AYERS, Appellant VS. THE STATE OF TEXAS, Appellee Appealed from the 2761h Judicial District Court Marion County, Texas Trial Court Cause No. F14576 BRIEF OF APPELLANT
Submitted by:
James P. Finstrom Counsel for Appellant P.O. Box 276 Jefferson, Texas 75657 903-665-7111 Fax: 903-665-7167 State Bar#07038000

APPELLANT DOES REQUEST ORAL ARGUMENT ACCEPTED 06-15-00157-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 11/3/2015 10:40:55 AM DEBBIE AUTREY

CLERKIDENTITY OF PARTIES AND COUNSEL Pursuantto T.R.A.P. 38.1(a) Appellant: Nicholas Edward Ayers Institutional Division ofTexas Department ofCriminal Justice Joe F. Gurney Unit 1835 FM 3328 Tennessee Colony, Texas 75803 Counsel for Appellant at trial: Hon. Rick Berry 111 WestAustin Street Marshall, Texas 75670 Counsel for Appellant on appeal: Hon. James P. Finstrom P.O. Box 276 Jefferson, Texas 75657 State's Counsel at trial and on appeal:

Trial Judge:Hon. Angela Smoak, County Attorney 102 WestAustin Street Jefferson, Texas 75657

Hon. Robert Rolston, Judge, 2761hJudicial District Court Marion County, Texas

2TABLE OF CONTENTS Pursuantto T.R.A.P. 38.1(b)
IDENTITY OF PARTIES AND COUNSEL TABLE OF CONTENTS INDEX OF AUTHORITIES STATEMENT OF THE CASE ISSUES PRESENTED Page

ISSUE NO. 1: THE STATE COMMITTED FUNDAMENTAL ERROR BY MAKING A PUNISHMENT ARGUMENT OUTSIDE THE EVIDENCE. ISSUE NO. 2: APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE COUNSEL DID NOT OBJECT TO THE STATE'S PUNISHMENT ARGUMENTWHICH WAS LARGELY OUTSIDE THE EVIDENCE. STATEMENT OF FACTS ISSUE NO. ONE (Restated) IS THE STATE'S PUNISHMENT ARGUMENT OUTSIDE THE EVIDENCE FUNDAMENTAL ERROR? SUMMARY OF THE ARGUMENT ARGUMENT

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8 8ISSUE NO. TWO (Restated) DID APPELLANT RECEIVE EFFECTIVE ASSISTANCE OF COUNSELWHEN COUNSEL DID NOT OBJECT TO THE ARGUMENT MADE THE BASIS OF ISSUE NO. ONE IN THIS CASE? SUMMARY OF THE ARGUMENT ARGUMENT PRAYER CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE

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### 13INDEX OF AUTHORITIES Pursuantto T.R.A.P. 38.1(c) Cases: Page Johnson v. State, 233 S.W.3d 109 (Tex.App. Houston 14th Dist. 2007, no hist.) 9 Peak V. State, 57 S.W.3d 14 8 (Tex.App. Houston 14th Dist. 2001) Vaughn 

### v. State 888 S.W.2d 62 (Tex.App.
-- Houston 1st Dist. 1994, p.d.r. granted and affirmed, 931 S.W.2d 564 (Tex.Crim.App. 1996) 11 Washington 

### v. State.16 S.W.3d 70 8 (Tex.App. Houston 1st Dist. 2000, p.d.r. ref'd.) Williams 

### v. State, S.W.3d 11 2015WL 5158449 (2015) Wilson 

### v. State, 938 S.W.2d 57 (Tex.Crim.App. 2002) 8, 9 Statutes: Article 62.051(a), Code of Criminal Procedure 12 Other Materials: Tex. Jur3d, Criminal Procedure: Trial, Sec. 480 

### 8 All references to Texas statutes, rules, etc. are to the latest edition published by West Publishing Company, unless otherwise noted.

5STATEMENT OF THE CASE Pursuantto T.R.A.P. 38.1(d) Appellantwas tried in a bench trial on two cases of indecency with a child, being the instant case and Appellate Cause Number 06- 15-00156-CR, on his plea ofguiltyto the indictment in each case. Appellant's pleas ofguilty in each case were entered on August 5, 2015. (2 RR 1-33) Evidence on the pleas was heard on August 27, 2015. (3 RR 1-58) The court found Appellant guilty on each case and assessed an eighteen (18) year sentence in the Institutional Division ofthe Texas Department ofCriminal Justice on each case on August 27, 2015to run concurrently. (3 RR 65-66) Appellant gave timely notice ofappeal September23, 2015. (CR 98) Counsel was appointed to represent Appellant on appeal on September21, 2015. (RR 97) ISSUES PRESENTED Pursuantto T.R.A.P. 38.1(e) ISSUE NO 1: IS THE STATE'S PUNISHMENT ARGUMENT OUTSIDE THE EVIDENCE FUNDAMENTAL ERROR REQUIRING REVERSAL OF APPELLANT'S CONVICTION? ISSUE NO. 2: DID APPELLANT RECEIVE EFFECTIVE ASSISTANCE OF COUNSELWHEN COUNSEL DID NOT OBJECT TO THE ARGUMENT MADE THE BASIS OF ISSUE NO. 1 IN THIS CASE.

6STATEMENT OF FACTS Pursuantto T.R.A.P. 38.1(f) The State called seven witnesses and Appellant did nottestify but called one witness. Martha Dyles and Kimberly Lara testified to the predicate for the admission into evidence ofa DVD in each ofthe two cases ofthe Child Advocacy Center interviewofthe child named in each indictment. (3 RR 8-13) Lauren Whitehead, who was employed with thejail atthe Marion County Sheriff's Department, testified that Appellant had possession of contraband in his cell block during his confinement in jail consisting of peach hooch which smelled like alcohol, aTramadol pill, paper clips which had been made into needles, and ear phones with ayellowsubstance in them. (3 RR 14-16) Vera Humphrey, Trelena Ives, Christi McWilliams, and Taylor Quinn McWilliamstestified to the circumstances surrounding the outcry by the child victim in each ofthe two cases. (3 RR 18-34) Appellant called his step-father, Virgil T. Allen, who testified as a characterwitness for him.

7ISSUE NO. ONE (Restated) IS THE STATE'S PUNISHMENT ARGUMENT OUTSIDE THE EVIDENCE FUNDAMENTAL ERROR REQUIRING REVERSAL OF APPELLANT'S CONVICTION? SUMMARY OF THE ARGUMENT Pursuantto T.R.A.P. 38.1 (g) Counsel forthe State made avery strong punishment conduct about matters outside the evidence and record in this cause which should not be deemed harmless error and requires reversal of Appellant's conviction. ARGUMENT Pursuantto T.R.A.P. 38.1(h) Issue No. 1 Properjury argument is delineated into four categories: (1) summation ofthe evidence; (2) reasonable deductions from the evidence; (3) responsive arguments; and (4) pleas for law enforcement. Tex. Jur 3d, Criminal Procedure: Trial Sec. 480. Appellate courts should not hesitateto reverse when it appearsthat the State has departed from one ofthese areas in argument and has engaged in conduct calculated to denythe accused a fair and impartial trial. Wilson v. State, 938 S.W.2d 57 (Tex.Crim.App. 2002); Washington v. State.16 S.W.3d 70 (Tex.App. Houston 1st Dist. 2000, p.d.r. ref'd.); Peakv. State, 57 S.W.3d 14 (Tex.App. Houston 14th 8Dist. 2001). The testto considerwhether improper argument constitutes reversible error is whetherthe argumentviolates astatute; injects newand harmful facts into the case; or is extreme or manifestly improper, harmful, and prejudicial to the rights ofthe accused. Wilson v. State, supra. The applicable standard of review is whether, in light ofthe record as awhole, there is a reasonable possibilitythatthe improper argumentwas so prejudicial as to deprive the defendant of a fair and impartial trial. Johnson v. State, 233 S.W.3d 109 (Tex.App. Houston 141h Dist. 2007, no hist.) The State's argument in this case was almost entirelytotally outsidethe record and based on a letterAppellant had written to the Court which was not offered or admitted into evidence in this cause. No objection was madeto the argument, but it should be considered
as fundamental error because ofthe nature ofthe argument, referring to Appellant as a person "who has an addiction to pornography" (3 CR 59), and that "he never says he's sorry" (3 CR 61), and "he tells the Courtthat he didn'tsee a reaction from the children, so it must be okay" (3 CR 60), and that "he even mentions my very own mother in this letterto the Court." (3 CR 60). The harm can been seen in the length ofthe sentence given Appellant by the Court. Appellant's

9conviction should be reversed becausethe argument appears to have been asking for serious punishment for matters outside the record. The letter is in the clerk's record at CR36, because itwas filed by the Clerk although it was not admitted as evidence in the
case. The argument is avery strong argument and should not be considered harmless error. ISSUE NO. TWO (Restated) DID APPELLANT RECEIVE EFFECTIVE ASSISTANCE OF COUNSELWHEN COUNSEL DID NOT OBJECT TO THE ARGUMENT MADE THE BASIS OF ISSUE NO. ONE IN THIS CASE. SUMMARY OF THE ARGUMENT Pursuantto T.R.A.P. 38.1 (g) Issue No. 2 Appellant'strial counsel did not objectto the argument outside the evidence madethe basis forthe argument in Issue No. 1 and Appellant did not receive effective assistance of counsel. ARGUMENT Appellant's counsel attrial did not objectto the State's argument madethe basis of Issue No. 1 above. Appellant can conceive of no trial strategy in this case thatwouldjustifytrial counsel's failure to objectto the argument.

10This Court recently dealtwith the issue offundamental or egregious error in a criminal trial and the failure ofcounsel to object to the error in Williams v. State, S.W.3d ,2015WL 5158449 (2015). In Williams, this Court held that an appellate court will not reverse based on an unpreserved claim of charge error unlessthe defendant suffered harm so egregiousthat he was denied
a fair and impartial trial becausethe error affected thevery basis of the case or deprived the defendant ofavaluable right orvitally affect
a defensive theory. Whilethe factual background of charge error may differfrom argument error, Appellant urgesthat the error presented in his case affectthevery basis ofthe punishment given him by the trial court. Wheretrial counsel fails to objectto the State's argument, Appellant urgesthat it is clearthatthe trial court would have committed error in refusing to sustain an objection to the argumentthat is clearly outsidethe record and prejudicial to Appellant. See Vaughn v. State 888 S.W.2d 62 (Tex.App.
-- Houston 151 Dist. 1994, p.d.r. granted and affirmed, 931 S.W.2d 564 (1996) PRAYER Upon the issues presented, Appellant, Nicholas Edward Ayers prays that this Court reverse thejudgment ofthe trial court and

11remand the case to thetrial court for a new punishment hearing, and forsuch other and further reliefto which he may be entitled. Respectfully submitted,

ls/James P. Finstrom James P. Finstrom Counsel for Appellant 202 S. Marshall, P.O. Box 276 Jefferson, Texas 75657 903-665-7111 Fax: 903-665-7167 Texas Bar#07038000

CERTIFICATE OF SERVICE I certify that I have delivered atrue copy ofthis briefto Hon. Angela Smoak, counsel forthe State, and to Appellant by United States mail, first class postage prepaid, atthe Joe F. Gurney Unit, 1385 FM 3328, Tennessee Colony, Texas 75803, on this 3rd day of November, 2015.
ls/James P. Finstrom James P. Finstrom

12CERTIFICATE OF COMPLIANCE I certify that Appellant's Brieffiled electronically on this 3rd day of November, 2015 complies with Tex. R. App. P. 9.4(i)(2)(B). This Brief contains 1,731 words.

13 /s/James P. Finstrom James P. Finstrom