PD-1474-14

 

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

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 75th Judicial District Court of Liberty County, Texas 

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

 CHIP B. LEWIS

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

CLERK
ii

TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................................................ii

INDEX OF AUTHORITIES..........................................................................................................iii

STATEMENT REGARDING ORAL ARGUMENT...............................................1

STATEMENT OF THE CASE.......................................................................................................1

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

GROUNDS FOR REVIEW.............................................................................................................2

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 requisites of Texas Rule 

of Appellate Procedure 47.1. 

Ground Two: The opinion of the Ninth Court of Appeals in the Appellant’s case squarely 

conflicts with the opinion of the Fourth Court of Appeals in Arrington v. State.

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. State.................................................................................A2
iii

INDEX OF AUTHORITIES

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........................................................................................................................ .1
1

STATEMENT REGARDING ORAL ARGUMENT

The Appellant requests oral argument.

STATEMENT OF THE CASE

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 Tex. 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, 2013, the jury found the Appellant 

guilty as charged of continuous sexual abuse of a child. The 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.

STATEMENT OF PROCEDURAL HISTORY

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 Time 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 (11) copies of this petition were 

timely filed by placing them in the United States mail, addressed to Clerk of the Court, Court 

of Criminal Appeals, P.O. Box 12308, Austin, Texas 78711.
2

GROUNDS FOR REVIEW

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 REQUISITES OF TEXAS RULE OF APPELLATE PROCEDURE 

47.1.

GROUND TWO: THE OPINION OF THE NINTH COURT OF APPEALS IN THE 

APPELLANT’S CASE SQUARELY CONFLICTS WITH THE OPINION OF THE 

FOURTH COURT OF APPEALS IN ARRINGTON V. STATE. 

ARGUMENT FOR GROUNDS ONE AND TWO

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, the Appellant argued that 

the 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 to 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”: that 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) day 
3

requirement, and the State read the indictment to the jury, and the Defense reminded 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 Court of Appeals must 

issue a ruling that properly addresses all of the issues raised. In Carsner v. State, this Court 

admonished an intermediate court for failing to so do: “(t)he court of appeals failed to 

address every issue necessary to the disposition of the appeal,” and remanded the case to the 

appellate 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 in Sinclair v. State, a per curiam

opinion, and remanded that case to the Appellate Court because it overruled 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 unanimity 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 charge1 as required by the Texas 

 

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 constituting 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. 2011). Just as in 

Arrington and Cosio, the charge in this case contained error because it permitted a nonunanimous 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 case,” “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 entire 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, in Arrington the Court found that where there was 

no unanimity instruction, as in the Appellant’s case, that the charge permitted a nonunanimous verdict based on the extraneous evidence presented and that the magnitude of this 

particular error in and of itself “weighs in favor of finding egregious harm.” Arrington at 112 (emphasis 

added). The Appellate Court 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 Arrington 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 instruction 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, the application paragraphs failed to include the specific unanimity language 

required by the continuous sexual abuse statute. The harm in the Appellant’s case 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 foregoing instructions if you find 

from the evidence beyond a reasonable doubt that on or about the 1st day of December, 

2007 through the 1st 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 reasonable doubt that from on or 

about the 1st day of December, 2007 through the 1st 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 Wells 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 County, 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 the 
7

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 abuse,” 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 for 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 clearly 

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 Appellant made no statements, the Complainant gave only confused and 

uncertain testimony, and the State argued the long history of the abuse in such a way as to 
8

leave the jury with the impression that they were free to non-unanimously convict for any 

abuse that they believed happened before the statute 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 considered 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 outcry of her claims of abuse 

against the Defendant in that case. Similarly, in this case the Complainant’s claims were 

delayed by an 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, improper 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 offenses against other family 

members (4 R.R. at 6-8, 94). This evidence is even more harmful than the plain bolstering 

in Arrington. The Ninth 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 Rules 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, the errors in the charge are 

greatly exacerbated by the state of the evidence. Specifically, 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 occurred 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 

Appellate Court.

(3) arguments of counsel; 

The Defense’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 elements as alleged in the indictment. Neither the State nor the Defense 

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 

duration. 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 unanimous 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 was 
10

“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 neither side nor the Court 

ever informed the jury that 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 

before 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 there was a large amount of extraneous 

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 when 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 doubt 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 reasonable 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 years 

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 reasonable 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 once 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 guilty 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 did 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 guilty 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 both 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; and
13

 Countless permutations of the above verdicts made by each member of a nonunanimous jury. 

This factor, and all of the above factors, 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.

PRAYER 

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 that court with the instruction 

to conduct a harm analysis.

Respectfully submitted,

/s/ Chip Lewis

CHIP B. LEWIS

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
14

CERTIFICATE OF FILING AND SERVICE

 

I hereby certify that on December 29, 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 delivered to the appellate 

division of the Liberty County District Attorney’s Office by placing 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. Lewis
15

CERTIFICATE OF COMPLIANCE

 

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. Lewis
16

APPENDIX

Texas Criminal Pattern Jury Charge; Continuous Sexual Abuse of a Child.......................A1

Jimmy Don Casey v. State.................................................................................A2