NO. 06-15-00157-CR 

IN THE COURT OF APPEALS 

SIXTH APPELLATE DISTRICT OF TEXAS 

AT TEXARKANA, TEXAS 

NICHOLAS EDWARD AYERS, 

Appellant 

VS. 

THE STATE OF TEXAS, 

Appel lee 

Appealed from the 2761

h 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

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 11/3/2015 10:40:55 AM DEBBIE AUTREY Clerk
IDENTITY OF PARTIES AND COUNSEL 

Pursuant to T.R.A.P. 38.1(a) 

Appellant: Nicholas Edward Ayers 

Institutional Division of Texas Department 

of Criminal Justice 

Joe F. Gurney Unit 

1835 FM 3328 

Tennessee Colony, Texas 75803 

Counsel for Appellant at trial: 

Hon. Rick Berry 

111 West Austin 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 West Austin Street 

Jefferson, Texas 75657 

Hon. Robert Rolston, Judge, 

2761

h Judicial District Court 

Marion County, Texas 

2 
TABLE OF CONTENTS 

Pursuant to 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 

ARGUMENT WHICH 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 

3 

2 

3 

5 

6 

6 

7 

8 

8 

8 
ISSUE NO. TWO (Restated) 

DID APPELLANT RECEIVE EFFECTIVE ASSISTANCE OF 

COUNSEL WHEN 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 

4 

10 

10 

10 

11 

12 

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INDEX OF AUTHORITIES 

Pursuant to 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 

2015 WL 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. Jur 3d, 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. 

5 
STATEMENT OF THE CASE 

Pursuant to T.R.A.P. 38.1(d) 

Appellant was 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 of guilty to the indictment in each case. 

Appellant's pleas of guilty 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 of the Texas Department of Criminal Justice on each case on 

August 27, 2015 to run concurrently. (3 RR 65-66) Appellant gave 

timely notice of appeal September 23, 2015. (CR 98) Counsel was 

appointed to represent Appellant on appeal on September 21, 2015. 

(RR 97) 

ISSUES PRESENTED 

Pursuant to 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 COUNSEL WHEN COUNSEL DID NOT OBJECT 

TO THE ARGUMENT MADE THE BASIS OF ISSUE NO. 1 IN THIS 

CASE. 

6 
STATEMENT OF FACTS 

Pursuant to T. R.A. P. 38.1 (f) 

The State called seven witnesses and Appellant did not testify 

but called one witness. 

Martha Dyles and Kimberly Lara testified to the predicate for 

the admission into evidence of a DVD in each of the two cases of the 

Child Advocacy Center interview of the child named in each 

indictment. (3 RR 8-13) 

Lauren Whitehead, who was employed with the jail at the 

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, a Tramadol 

pill, paper clips which had been made into needles, and ear phones 

with a yellow substance in them. (3 RR 14-16) 

Vera Humphrey, Trelena Ives, Christi McWilliams, and Taylor 

Quinn McWilliams testified to the circumstances surrounding the 

outcry by the child victim in each of the two cases. (3 RR 18-34) 

Appellant called his step-father, Virgil T. Allen, who testified as 

a character witness for him. 

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ISSUE NO. ONE (Restated) 

IS THE STATE'S PUNISHMENT ARGUMENT OUTSIDE THE 

EVIDENCE FUNDAMENTAL ERROR REQUIRING REVERSAL OF 

APPELLANT'S CONVICTION? 

SUMMARY OF THE ARGUMENT 

Pursuant to T. R.A. P. 38.1 (g) 

Counsel for the State made a very 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 

Pursuant to T.R.A.P. 38.1(h) 

Issue No. 1 

Proper jury argument is delineated into four categories: (1) 

summation of the 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 hesitate to reverse when it appears that 

the State has departed from one of these areas in argument and has 

engaged in conduct calculated to deny the 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.); Peak v. State, 57 S.W.3d 14 (Tex.App. Houston 14th 

8 
Dist. 2001 ). The test to consider whether improper argument 

constitutes reversible error is whether the argument violates a statute; 

injects new and harmful facts into the case; or is extreme or 

manifestly improper, harmful, and prejudicial to the rights of the 

accused. Wilson v. State, supra. The applicable standard of review 

is whether, in light of the record as a whole, there is a reasonable 

possibility that the improper argument was so prejudicial as to deprive 

the defendant of a fair and impartial trial. Johnson v. State, 233 

S.W.3d 109 (Tex.App. Houston 141

h Dist. 2007, no hist.) 

The State's argument in this case was almost entirely totally 

outside the record and based on a letter Appellant had written to the 

Court which was not offered or admitted into evidence in this cause. 

No objection was made to the argument, but it should be considered 

as fundamental error because of the nature of the 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 Court that he didn't see a reaction from the children, so it must be 

okay" (3 CR 60), and that "he even mentions my very own mother in 

this letter to the Court." (3 CR 60). The harm can been seen in the 

length of the sentence given Appellant by the Court. Appellant's 

9 
conviction should be reversed because the 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 it was 

filed by the Clerk although it was not admitted as evidence in the 

case. The argument is a very strong argument and should not be 

considered harmless error. 

ISSUE NO. TWO 

(Restated) 

DID APPELLANT RECEIVE EFFECTIVE ASSISTANCE OF 

COUNSEL WHEN COUNSEL DID NOT OBJECT TO THE 

ARGUMENT MADE THE BASIS OF ISSUE NO. ONE IN THIS 

CASE. 

SUMMARY OF THE ARGUMENT 

Pursuant to T. R.A. P. 38.1 (g) 

Issue No. 2 

Appellant's trial counsel did not object to the argument outside 

the evidence made the basis for the argument in Issue No. 1 and 

Appellant did not receive effective assistance of counsel. 

ARGUMENT 

Appellant's counsel at trial did not object to the State's 

argument made the basis of Issue No. 1 above. Appellant can 

conceive of no trial strategy in this case that would justify trial 

counsel's failure to object to the argument. 

10 
This Court recently dealt with the issue of fundamental or 

egregious error in a criminal trial and the failure of counsel to object 

to the error in Williams v. State, S.W.3d , 2015 WL 

5158449 (2015). In Williams, this Court held that an appellate court 

will not reverse based on an unpreserved claim of charge error 

unless the defendant suffered harm so egregious that he was denied 

a fair and impartial trial because the error affected the very basis of 

the case or deprived the defendant of a valuable right or vitally affect 

a defensive theory. While the factual background of charge error 

may differ from argument error, Appellant urges that the error 

presented in his case affect the very basis of the punishment given 

him by the trial court. Where trial counsel fails to object to the 

State's argument, Appellant urges that it is clear that the trial court 

would have committed error in refusing to sustain an objection to the 

argument that is clearly outside the 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 the judgment of the trial court and 

11 
remand the case to the trial court for a new punishment hearing, and 

for such other and further relief to 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 a true copy of this brief to Hon. 

Angela Smoak, counsel for the State, and to Appellant by United 

States mail, first class postage prepaid, at the 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 

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CERTIFICATE OF COMPLIANCE 

I certify that Appellant's Brief filed 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. 

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/s/ James P. Finstrom 

James P. Finstrom