PD -1474- 14
I N T HE C OURT OF C RIMINAL A PPEALS OF THE S TATE OF T EXAS
JIMMY DON CASEY, Appellant

v . THE STATE OF TEXAS,

Appellee

On Petition for Discretionary Review from the Ninth Court of Appeals in No. 09- 13

- 00367

-

CR, affirming the conviction in Cause Number CR29444, From the 75 th Judicial District Court of Liberty County, Texas

A PPELLANT ’ S P ETITION FOR D ISCRETIONARY R EVIEW

C HIP B. L EWIS TBN 00791107 Alicia Devoy O’Neill TBN 24040801 1207 South Shepherd Houston, Texas 77019 Phone: (713) 523

- 7878 Fax: (713) 523 -7887 Email: chipblewis@aol.com Counsel for Appellant PD-1474-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 12/29/2014 2:20:30 PM Accepted 12/30/2014 10:14:38 AM

ABEL ACOSTA CLERKii T ABLE OF C ONTENTS

TABLE OF CONTENTS

................................ ................................ ................................ ................. ii INDEX OF AUTHORITIES

................................ ................................ ................................ .......... iii STATEMENT REGARDING ORAL ARGUMENT.................................... ...........1
STATEMENT OF THE CASE

................................ ................................ ................................ ....... 1 STATEMENT OF PROCEDURAL HISTORY

................................ ................................ .......... 1 GROUND S FOR REVIEW

................................ ................................ ................................ ............. 2 Ground One: I n failing to properly consider and address all necessary factors in determining whether the trial court ’s failure to properly charge the jury on unanimity resulted in harm in the Appellant’s case, the N inth C ourt of A ppeals failed to meet the requisites of Texas Rule of Appellate P rocedure 47.1. Ground Two: T he opinion of the N inth C ourt of A ppeals in the Appellant’s case squarely

co n flicts with the opinion of the F ourth C ourt of A ppeals in A rrington v. S tate

. ARGUMENT

................................ ................................ ................................ ................................ ...... 2 PRAYER FOR RELIEF

................................ ................................ ................................ .................. 13 CERTIFICATE OF FILING AND SERVICE

................................ ................................ .......... 14 

### CERTIFICATE OF COMPLIANCE.................................................................................15
APPENDIX.................................................................................. ............16 Texas Criminal Pattern Jury Charge; Continuous Sexual Abuse of a Child............

........... A1 Jimmy Don Casey v. S tate
................................................................ ........... ......A2iii I NDEX OF A

UTHORITIES

Cases Almanza v. State, 686 S.W. 157, 172 (Tex. Crim. App. 1984)(en banc) .........................................4 Arrington v. State , 413 S.W.3d 106 (Tex.App.

— San Antonio 2013)

............... . .....4, 5, 8 , 9, 10, 12
Barrios v. State , 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) .........................................................3
Carsner v. State , 444 S.W.3d 1, 3 (Tex. Crim. App. 2014 )

......................... ........................................3
Cosio v. State , 353 S.W.3d 766, 772 ( Tex. Crim. App. 2011) ............................................................4 Harris v. State, 522 S.W.2d 199, 202 (Tex.Crim.App .1975) .............................................................3 Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) ..............................................................5 Kuhn v. State, 393 S.W.3d 519, 537 (Tex.App.

- Austin 2013, pet. ref'd) .........................................7 Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005) ..............................................................4
Sinclair v. State , PD

- 0669

- 14, 2014 WL 5370044 (Tex. Crim. App. 2014 ) .....................................3
Smith v. State , 397 S.W.3d 765 (Tex. App. San Antonio 2013)......................

.................... .. 4

Statutes Tex. Pen. Code § 21.02

................ ... .................................... .. ........................... 1 ,3 Tex. Pen. Code § 21.11........................................................................................................................ .11 S TATEMENT R

EGARDING O RAL A RGUMENT The Appellant requests oral argument.

S TATEMENT OF THE C ASE
The Appellant, Jimmy Don Casey , was charged by indictment with one count of
continuous sexual abuse of a child , the indictment alleging two manners and means of
commission of the offense , and one count of indecency with a child

. See T ex. Penal Code Ann. § 21.02 & 21.11 ( C.R. at 2 )

. The Appellant entered a plea of “not guilty” and the case was presented to a jury ( 4 R.R. at 11

- 13 ). On July 31, 20 13 , the jury found the Appellant guilty as charged of continuous sexual abuse of a child

. T he jury sentenced him to thirty (30) years in the Texas Department of Corrections

– Institutional Division ( C .R. at 45 )

. No
motion for new trial was filed.

S TATEMENT OF P ROCEDURAL H ISTORY On October 28, 2014, in a memorandum opinion, the Ninth Court of Appeals affirmed the Appellant’s conviction. No motion for rehearing was filed. This Court granted the Appellant’s Motion for Extension of Ti me to File Petition for Discretionary Review, allowing him until December 31 , 2014 , to do so. On December 29 , 2014 , the original petition was filed electronically and the original and eleven (1 1 ) copies of this petition were timely filed by placing them in the U nited States mail, addressed to Clerk of the Court, Court of Criminal Appeals, P.O. Box 12308, Austin, Texas 78711.2 G ROUND S FOR R EVIEW
GROUND ONE: IN FAILING TO PROPERLY CONSIDER AND ADDRESS ALL NECESSARY FACTORS IN DETERMINING WHETHER THE TRIAL COURT ’S FAILURE TO PROPERLY CHARGE THE JURY ON UNANIMITY RESULTED IN HARM IN THE APPELLANT’S CASE , THE NINTH COURT OF APPEALS FAILED TO MEET THE REQUIS ITES OF TEXAS RULE OF APPELLATE PROCEDURE 47.1

.

GROUND TWO: THE OPINION OF THE NINTH COURT OF APPEALS IN THE APPELLANT’S CASE SQUARELY CO N FLICTS WITH THE OPINION OF THE FOURTH COURT OF APPEALS IN ARRINGTON V. STATE

.

A RGUMENT FOR G ROUNDS O NE AND T WO On direct appeal, the Appellant argued that a number of different errors in the trial court’s jury charge resulted in egregious harm to him

. Specifically , t he Appellant argued that

t he application paragraphs of the court’s charge failed to include the unanimity language required by the continuous sexual abuse statute , that this error was compounded by

numerous other specific errors in the charge, and as a result the charge allowed for conviction in a number of manners not authorized by law

. In rejecting the Appellant’s claim on direct appeal, the Court of Appeals wholly failed to conduct any analysis or come t o any clear conclusion as to error for failing to include the unanimity instruction in the charge . The Court of Appeals summarily analyzed the following information and found that it weighed against a finding that the Appellant was “ denied a fair
trial ” : t hat the Court of Appeals had already determined the evidence to be legally sufficient in an earlier ground, it believed the charge as a whole communicated the thirty (30) day3

requirement , and the State read the indictment to the jury , and the Defense remin ded the jury of the charged offense during argument. Court of Appeals Must Conduct Meaningful Review of All Claims Regardless of which side is appealing a trial court’s ruling , the C ourt of A ppeals must issue a ruling that properly addresses all of the issues raised. In Carsner v. State , this Court
admonished a n intermediate court for failing to so do: “(t) he court of appeals failed to address every issue necessary t o the disposition of the appeal, ” and remanded the case to the
appe llate court for further proceedings. Carsner v. State , 444 S.W.3d 1, 3 (Tex. Crim. App.
2014 ) . Though unpublished, this Court also addressed this issue i n Sinclair v. State , a per curiam opinion , and remanded that case to the A ppellate C ourt because it ove rrul ed the Appellant’s issue on appeal without a meaningful discussion or citation to any authority. Sinclair v. State , PD

- 0669

- 14, 2014 WL 5370044 (Tex. Crim. App. 2014 )

. Error and Harm Analysis in the Appellant’s Case
Error Analysis In analyzing a jury charge issue, an appellate court’s first duty is to decide whether
error exists. Barrios v. State , 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Error occurs when

a jury charge fails to directly apply the law to the facts. Harris v. State, 522 S.W.2d 199, 202 (Tex.Crim.App.1975)

. The u nanimity requirements set forth in section 21.02(d) must be included in the application paragraph of a continuous sexual abuse charge in order to distinctly set forth the law applicable to the case in the jury charge 1 as required by the T exas

1 The Texas Criminal Pattern Jury Charge for continuous sexual abuse of a child which contains an example of an application paragraph that properly informs a jury of what facts, if found by the jury,4

Code of Criminal Procedure. Smith v. State , 397 S.W.3d 765 (Tex. App. San Antonio 2013)

. It is error to not include the unanimity language in the application paragraph and the harm analysis will look at the clarity of the rest of the paragraph (or in this case , paragraphs). Smith
at 771

- 772. Though the Ninth Court of Appeals did not make any explicit conclusion as to error
in this case , the Fourth Court of Appeals relied on this Court’s precedent when it conducted
a similar analysis

. That Court found that where evidence of multiple instances of criminal
acts consti tuting the offenses were presented at trial, as they were in the Appellant’s case, an instruction on jury unanimity is required. Arrington v. State , 413 S.W.3d 106 (Tex.App.

— San Antonio 2013); citing Cosio v. State , 353 S.W.3d 766, 772 ( Tex. Crim. App. 201 1). Just as in Arrington and Cosio , the charge in this case contained error because it permitted a non

unanimous verdict based on the evidence presented in this case. Id

. Harm Analysis If error exists, the court then analyzes that error for harm. Id. If not objected to, appellate courts examine the record for egregious harm under the Almanza standard. Almanza v. State, 686 S.W. 157, 172 (Tex. Crim. App. 1984)(en banc)

. Errors that result in egregious harm are those that affect “the very basis of the ca se,” “deprive the defendant of a valuable right,” or “vitally affect a defensive theory.” Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). To determine whether a defendant has sustained egregious harm an appellate court should consider : (1) the en tire charge; (2) the state of the evidence, including

would constitute proof of the elements of that offense is attached to this brief as Appendix A

- 1. Texas Criminal Pattern Jury Charges (2011).5

contested issues; (3) arguments of counsel; and (4) any other relevant information. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996)

. In examining the factors for determining egregious harm in the Appellant’s case , the Court of Appeals wholly failed to consider the factors that the Court in Arrington considered
to be a vital part of its harm analysis , as well as a number of the factors that the Appellant
raised in his appellate brief

. Importantly, i n Arrington the C ourt found that where there was no unanimity instruction, as in the Appellant’s case, that the charge permitted a non

unanimous verdict based on the extraneous evidence presented and that the magnitude of this particular error in and of itself “weighs in f avor of finding egregious harm .” Arrington at 112 (emphasis added)

. The Appellate C ourt here did not analyze the error at all, let alone count the magnitude of the error as a factor in its harm analysis. A true analysis of the error itself along
with all of the other factors in light of Arrington , and the Appellant’s unaddressed claims from his appeal , establish egregious harm in this case. (1) the entire charge; When the Appellate Court in Arr ington analyzed the “entire jury charge” in light of the unanimity error , they focused on the lack of the unanimity instruction itself and the fact that
the only mention in the charge of unanimity was included in the “boilerplate” language in
the foreman i nstruction section of the charge. Id . The charge in the Appellant’s case is exactly the same as the charge in Arrington , in that it contains only one mention of the word unanimous and it is in the same boilerplate language relating to selecting a foreman. The Ninth Court of Appeals makes no mention of this fact in their opinion and failed to use it in
consideration of this factor.6

Further, as asserted in the Appellant’s brief but not addressed by the Court of Appeals, t he application paragraphs failed to include the specific unanimity language required by the continuous sexual abuse statute
. T he harm in the Appel lant’s cas e was compounded by the introduction of a large amount of extraneous testimony and an application paragraph that was broken into three confusing separate paragraphs set out and worded exactly as follows: “Charging paragraph. Now, bearing in mind the foreg oing instructions if you find from the evidence beyond a reasonable doubt that on or about the 1 st day of December, 2007 through the 1 st day of June, 2009 in Liberty County, Texas the defendant, Jimmy Don Casey, did then and there with intent to arouse or gratify the sexual desires of the defendant or Kayla Wells intentionally or knowingly engage in sexual conduct with Kayla Wells by touching the genitals of Kayla Wells, a child younger than 14 years; And/or if you find from the evidence beyond a reasonab le doubt that from on or about the 1 st day of December, 2007 through the 1 st day of June, 2009 in Liberty County, Texas the defendant, Jimmy Don Casey, did then and there with intent to arouse or gratify the sexual desires of the defendant and/or Kayla Wel ls intentionally or knowingly cause Kayla Wells, a child younger than 14 years of age, to engage in sexual conduct by causing the said Kayla Wells to touch the genitals of the defendant, Jimmy Don Casey; If you find from the evidence beyond a reasonable doubt that during a period that is 30 days or more

— 30 or more days in duration Jimmy Don Casey committed two or more acts of sexual abuse, you will find the defendant guilty of continuous sexual abuse of a child as charged in the indictment.” The jury was simply not properly instructed on unanimity. This is compounded by a third paragraph that allowed for non

- unanimous conviction without requiring the jury to find that K.W. was the complainant, that the sexual abuse incidents both happened within Liberty C ounty, Texas, that the Complainant was under 14 years of age at the time of both instances of sexual abuse, that the Appellant was at least 17 years old at the time of both instances of sexual abuse, or that the acts of sexual abuse specifically alleged in the7

indictment were the ones that had to be found in order to convict as opposed to the other uncharged behavior testified to by the Complainant. The charge also included confusing definitions of “sexual abuse” referring to Indecency with a Child where “ child” is specifically defined as a person under 17 years of age and not the person younger than 14 years of age required by the continuous sexual abuse language. The charge also contained a definition for Indecency by Exposure and defines it
as “sexual a buse,” even though no Indecency by Exposure was alleged in the indictment but was alleged as extraneous information by the State during trial. Importantly , the jury charge in this case merely directed the jury that they must consider any abuse that happened before indictment. No part of the jury charge informed the jury that they could only consider allegations of abuse that occurred after the enactment of the statute on September 1, 2007. It is further error to include the instruction that the
trial court did in the Appellant’s case regarding the timing of the incidents of abuse only needing to precede indictment and be within the statute of limitations because no one can be
convicted of continuous sexual abuse of a child f or behavior that occurred before the statute was enacted on September 1, 2007. Kuhn v. State, 393 S.W.3d 519, 537 (Tex.App.

- Austin 2013, pet. ref'd) . The court in Kuhn found that there was not egregious harm to the defendant in part because the defendant himself created a timeline for abuse that cle arly provided the jury with a reasonable basis to believe that the abuse occurred after the statute was enacted and the application paragraph contained a correct statement of the law. Id at
524

- 531. Here the App ellant made no statements, the C omplainant gave only confused and uncertain testimony, and the State argued the long history of the abuse in such a way as to8

leave the jury with the impression that they were free to non

- unanimously convict for any abuse that they believed happened before the statut e was enacted on September 1, 2007. The lack of any meaningful unanimity instruction is a factor that weighs in favor of a finding of egregious harm, it was compounded by the other errors in the charge in the Appellant’s case, and should have been consid ered by the Appellate Court. (2) the state of the evidence, including contested issues; When the Appellate Court in Arrington analyzed this factor, it focused on three areas
of evidence common in sexual assault

- type of cases. First, in that case and in the Appellant’s case, there was no DNA or forensic evidence and no medical injuries consistent with the sexually assaultive claims of the Complainant. Arrington at 113; ( 

### 4 R.R. at 67

- 70 ) . Second, evidence that the Complainant did not make immediate full ou tcry of her claims of abuse against the Defendant in that case

. S imilarly , in this case the Complainant’s claims were delayed by a n expanse of time and only made at the insistence of her family members. Id .; ( 

### 4
R.R. at 21

- 22, 80

- 85). Third, in Arrington , i mproper bolstering of the Complainant’s testimony was permitted. Id . In the Appellant’s case , inadmissible evidence was repeatedly testified to regarding limined out alleged sexual extraneous offens es against other family
members 

### (4 R.R. at 6

- 8, 94 ). This evidence is even more harmful than the plain bolstering
in Arrington

. The Nin th Court of Appeals acknowledged that the State’s witnesses repeatedly testified about these extraneous accusations in violation of the trial court’s ruling and the
Texas Rul es of Evidence but did not consider it in any manner in their evaluation of the harm element in the Appellant’s jury charge error claim

.9

Further, as the Appellant pointed out on direct appeal , t he errors in the charge are greatly exacerbat ed by the state of the evidence. S pecifically , by the combination of confused and wholly unclear testimony by the Complainant regarding many extraneous offenses and
where any of the incidents occurred, whether they occurred after September 1, 2007, when
the incidents occu rred in time, when the incidents occurred in relation to one another, or how old the Complainant was when any specific incident occurred

. This factor weighs in favor of a finding of egregious harm and should have been meaningfully considered by the Appell ate Court. (3) arguments of counsel;
The D efense ’s closing argument at trial focused on the defense that the Appellant was innocent. The State’s closing argument referred to the alleged abuse generally, emphasizing the long history of the alleged abuse, and did not mention the necessity of finding the el ements as alleged in the indictme nt. Neither the State nor the D efense explained the unanimity provision of the continuous sexual abuse law, or reinforced that the

two alleged acts of sexual abuse must have happened in a period greater than 30 days in
dur ation. When the Appellate Court in Arrington analyzed this factor, it focused on the fact that during argument in that case, as in this case, neither the State nor the Defense mentioned unanimity but neither argued that the jury did not have to be unanimou s either. Arrington at 116. In the Appellant’s case, unlike in Arrington where this factor did not weigh in favor of a finding of egregious harm, the State argued that the Complainant’s testimony was enough to convict and emphasized her specific testimony regarding abuse when she was10

“five or six years old” which was many years outside of the period that would permit conviction (V R.R. at 42

- 43). This is exacerbated by the fact that in the Appellant’s case n either side nor the Court

ever informed the jury t hat no conviction could be based on abuse that the jury did not believe occurred after September 1, 2007, and neither directly applied to the law to the facts
of the case. Instead the jury was only instructed that the offenses only had to have occurred
bef ore the indictment. This factor weighs in favor of a finding of egregious harm and should have been meaningfully considered by the Appellate Court. (4) any other relevant information
As in Arrington , in the Appellant’s case t here was a large amount of extr aneous offense evidence offered by the Complainant during her testimony that did not refer to the allegations in the indictment and some impermissible testimony about extraneousness to other family members . This only served to further confuse the jury whe n they were not improperly instructed. There was no information that would have kept the jurors from feeling certain that they were rightly executing their oaths by reaching the below impermissible non

- unanimous verdicts. These three application paragraphs would have authorized guilty verdicts in the following scenarios, none of them in violation of the continuous sexual abuse statute:

 That Appellant was guilty even if the jury did not agree unanimously that the State proved beyond a reasonable do ubt that Appellant, during a period that is 30 days or more in duration, committed two or more of the acts of sexual abuse alleged in the indictment.11

 That Appellant was guilty even if the jury did not unanimously believe that the State proved beyond a reas onable doubt that the Appellant was over 17 years of age at the time that he touched K.W.’s genitals;

 That Appellant was guilty even if the jury did not unanimously believe that the State proved beyond a reasonable doubt that the Appellant was over 17 year s of age at the time that the Appellant caused K.W. to touch his genitals;

 That Appellant was guilty even if the jury believed that the State proved beyond a reasonable doubt that Appellant touched the genitals of K.W. twice but did not believe beyond a re asonable doubt that it was during a period 30 or more days in duration;

 That Appellant was guilty even if the jury believed that the State proved beyond a reasonable doubt that Appellant caused K.W. to touch his genitals twice but did not believe beyond a reasonable doubt that it was during a period 30 or more days in duration;

 That Appellant was guilty even if the jury did not unanimously believe that the State proved that Appellant touched the genitals of K.W. once and caused K.W. to touch his genitals on ce but did not believe beyond a reasonable doubt that it was during a period 30 or more day in duration;

 That Appellant was guilty even if the jury did not unanimously believe that the State proved beyond a reasonable doubt that K.W. was the person against whom Appellant committed the acts of sexual abuse;12

 That Appellant was guilty even if the jury did not unanimously believe that the State proved beyond a reasonable doubt that two acts of sexual abuse happened in Liberty County, Texas;

 That Appellant was g uilty even if the jury did not unanimously believe that the State proved beyond a reasonable doubt that whoever the complainant was the complainant was not under 14 at the time of both instances of sexual abuse;

 That Appellant was guilty even if the jury d id not unanimously believe that the State proved beyond a reasonable doubt that (regardless of who the complainant was) that the Appellant was over 17 years of age at the time of both instances of sexual abuse;

 That Appellant was guilty even if the jury did not unanimously believe that the State proved beyond a reasonable doubt either of the acts of sexual abuse specifically alleged in the indictment and instead found some other “two or more acts of sexual abuse,” thereby allowing the jury to base its gui lty verdict on the extraneous offenses of sexual abuse offered by the State rather than testimony regarding the indicted offense;

 That Appellant was guilty even if the jury did not unanimously believe that the State proved beyond a reasonable doubt that b oth of the acts of sexual abuse specifically alleged in the indictment occurred after September 1, 2007 and while K.W. was under 14 years of age; and13

 Countless permutations of the above verdicts made by each member of a non

unanimous jury. This factor, an d all of the above factor s , weigh heavily in favor of a finding of egregious harm and should have been meaningfully considered by the Appellate Court in the Appellant’s case as they were by the Appellate Court in the Arrington case .

P RAYER For the reasons stated above, the Appellant asks this Court to grant his petition, reverse the judgment of the Court of Appeals and remand to th at court with the instruction to conduct a harm analysis. Respectfully submitted,

/s/ Chip Lewis C HIP B. L EWIS TBN 00791107 Alicia Devoy O ’ Neill TBN 24040801 1207 South Shepherd Houston, Texas 77019 Phone: (713) 523

- 7878 Fax: (713) 523

- 7887 Email: chipblewis@aol.com14 C ERTIFICATE OF FILING AND SERVICE

I hereby certify that on December 2 9 , 2014: 1) the original of the foregoing Appellant’s Petition for Discretionary Review was electronically filed and the original and eleven (11) copies were filed with the Clerk of the Court of Criminal Appeals, P.O. Box 12308, Austin, Texas 78711, by placing such documents in the United States Mail, addressed as indicated; 2) a true and correct copy of the foregoing petition was delivere d to the appellate division of the Liberty County District Attorney’s Office by pl a cin g such documents in the United States Mail addressed to 1923 Sam Houston, Suite 112, Liberty, Texas 77575; 3) a true and correct copy of the foregoing petition was served on the State Prosecuting Attorney, by mailing a copy of the petition to the State Prosecuting Attorney.

/s/ Chip Lewis Chip B. Lewis15 

### C ERTIFICATE OF 

### C OMPLIANCE



### Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this petition complies with the type

- volume limitations of Tex. R. App. Proc. 9.4(e)(i):
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1) , this petition contains 3,306 words printed in a proportionally spaced typeface.
2. This petition is printed in a proportionally spaced typeface using Garamond 14 point font in text and Garamond 12 point font in footnotes.
3

. Undersigned counsel understands that a material misrepresentation in completing this certificate, or circumvention of the type

- volume limits in Tex. R. App. Proc. 9.4(j) , may result in the Court's striking this petition and imposing sanctions against the person who signed it.
/s/ Chip Lewis 

### Chip B. Lewis16 APPENDIX

Texas Criminal Pattern Jury Charge; Continuous Sexual Abuse of a Child............

........... A1 Jimmy Don Casey v. State

................................................................ ........... ......A2