ON APPEAL FROM THE 282ND JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS NO. F KS PRESIDING JUDGE ANDY CHATHAM *****************************

Transcription

1 Oral Argument Requested IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS WALT WILLIAMS, Appellant VS. NO CR THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE 282ND JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS NO. F KS PRESIDING JUDGE ANDY CHATHAM ***************************** APPELLANT S BRIEF ***************************** ROBERT N. UDASHEN, P.C. Bar Card Number SORRELS, UDASHEN & ANTON 2311 CEDAR SPRINGS ROAD SUITE 250 DALLAS, TEXAS (214) (214) FAX ATTORNEY FOR APPELLANT

2 PARTIES TO THE CAUSE APPELLANT DEFENSE COUNSEL AT TRIAL Walt Williams James Vasilas 902 W. Commerce Street Dallas, Texas Bennett Cunningham P.O. Box Dallas, Texas APPELLANT S ATTORNEY ON APPEAL STATE S ATTORNEY AT TRIAL STATE S ATTORNEY ON APPEAL Robert N. Udashen Sorrels, Udashen & Anton 2311 Cedar Springs #250 Dallas, Texas Tammy Kemp Assistant District Attorney Office of the District Attorney of Dallas County 133 N. Riverfront Blvd., L.B. 19 Dallas, Texas Not Designated Yet -i-

3 TABLE OF CONTENTS Page PARTIES TO THE CAUSE i TABLE OF CONTENTS ii INDEX OF AUTHORITIES iii-v PROCEDURAL HISTORY OF THE CASE STATEMENT OF THE CASE SUMMARY OF THE ARGUMENT ISSUES PRESENTED FOR REVIEW ISSUE PRESENTED FOR REVIEW NO. I THE TRIAL COURT ERRED IN ENTERING AN AFFIRMATIVE FINDING OF FAMILY VIOLENCE WHERE THE EXPRESS LIMITS OF THE STATUTE DID NOT CONFER AUTHORITY TO ENTER SUCH A FINDING. (CR:20) ISSUE PRESENTED FOR REVIEW NO. II THE TRIAL COURT ERRED IN ENTERING AN AFFIRMATIVE FINDING OF FAMILY VIOLENCE WITHOUT SUBMITTING THE ISSUE TO THE JURY. (CR:20) ISSUE PRESENTED FOR REVIEW NO. III THE TRIAL COURT ERRED IN ENTERING AN AFFIRMATIVE FINDING OF FAMILY VIOLENCE WHERE THE STATE FAILED TO GIVE NOTICE TO APPELLANT. (CR:20) ISSUE PRESENTED FOR REVIEW NO. IV THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT S CONVICTION FOR ASSAULT. (Entire Record) CONCLUSION CERTIFICATE OF SERVICE ii-

4 INDEX OF AUTHORITIES Cases Page Apprendi v. New Jersey, 530 U.S. 466 (2000) , 12, 13, 14 Blakely v. Washington, 542 U.S. 296 (2004) , 13 Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App. 1991) Butler v. State, 189 S.W.3d 299 (Tex.Crim.App. 2006) Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 2006) Coit v. State, 808 S.W.2d 473 (Tex. Crim. App. 1991) Cunningham v. California, 549 U.S. 270 (2007) , 13 Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364 (4 th Cir. 1973) Ex Parte Beck, 769 S.W.2d 525 (Tex.Crim.App. 1989) Ex parte Davis, 412 S.W.2d 46 (Tex. Crim. App. 1967) Ex Parte Patterson, 740 S.W.2d 766 (Tex.Crim.App. 1987) INS v. St. Cyr, 533 U.S. 289 (2001) Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App. 2000) , 21 Johnson v. State, 784 S.W.2d 413 (Tex.Crim.App. 1990) Jones v. United States, 526 U.S. 227 (1999) Lawrence v. State, 240 S.W.3d 912 (Tex.Crim.App. 2007) McDonald v. City of Chicago, Illinois, 130 S.Ct (2010) Martinez v. State, 129 S.W.3d 101 (Tex.Crim.App. 2004) Mitschke v. State, 129 S.W.3d 130 (Tex.Crim.App. 2004) Padilla v. Kentucky, 130 S.Ct (2010) iii-

5 Patterson v. State, 138 S.W.3d 643 (Tex.App. Dallas 2004, no pet.) , 16 Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991) State v. Hardy, 963 S.W.2d 516 (Tex.Crim.App. 1997) State v. Mays, 967 S.W.2d 404 (Tex.Crim.App. 2004) State v. Moff, 154 S.W.3d 599 (Tex.Crim.App. 2004) United States v. Gaudin, 515 U.S. 506 (1995) United States v. Kikuyama, 109 F.3d 536 (9 th Cir. 1997) Watson v. State, 204 S.W.3d 404 (Tex.Crim.App. 2006) Whipple v. State, 281 S.W.3d 482 (Tex. App. - El Paso 2008, pet. ref d) Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003) Codes and Rules 18 U.S.C. 922(g)(9) , 16 TEX. CODE CRIM. PROC. ANN. art , 10 TEX. CODE CRIM. PROC. ANN. art TEX. PENAL CODE ANN. 2.03(d) , 20 TEX. PENAL CODE ANN thru TEX. PENAL CODE ANN TEX. PENAL CODE ANN , 16 -iv-

6 Constitutional Provisions TEX. CONST. art. I U.S. CONST. amend. VI , 11, 14 -v-

7 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS WALT WILLIAMS, Appellant VS. NO CR THE STATE OF TEXAS, Appellee. ON APPEAL FROM THE 282ND JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS NO. F KS PRESIDING JUDGE ANDY CHATHAM ***************************** APPELLANT S BRIEF ***************************** TO THE HONORABLE COURT OF APPEALS: NOW COMES Appellant, WALT WILLIAMS, and would show this Honorable Court the following: PROCEDURAL HISTORY OF THE CASE Appellant, Walt Williams (Williams), was charged by indictment with the offense of burglary of a habitation with the intent to commit assault. (CR: 2). Williams entered a plea of not guilty to the indictment and proceeded to trial before a jury. (RR3: 8). The jury acquitted Williams on the charge of burglary, but found Williams guilty of the lesser- Appellant s Brief - Page 1

8 included offense of misdemeanor assault. (CR: 18; RR5: 24). The trial court judge then assessed Williams punishment at one year in the county jail. The judge suspended imposition of the sentence and placed Williams on probation for a period of two years. The judge ordered Williams to pay restitution in the amount of $1,000. (CR: 19). The judge also entered an affirmative finding of family violence. (CR: 20). Williams timely filed a motion for new trial. (CR: 23). The motion for new trial was overruled. (CR: 23). Williams timely filed notice of appeal to the Court of Appeals for the Fifth District of Texas. (CR: 24). STATEMENT OF THE CASE State s Evidence Porsche Wilder is a single mother with one daughter. (RR3: 55). Wilder first met Walt Williams at the YMCA when she was 26 years old, and they began dating a few weeks after they met. (RR3: 56-58). Wilder and Williams dated for 3 ½ years. (RR3: 55). At the time Wilder and Williams began dating, Wilder was aware that Williams was married and living with his wife and children. (RR3: 58). Wilder testified that although Williams came to her house almost every day, he did not have a key to the house. (RR3: 59-60). The only time Wilder ever gave Williams a key was to watch her house while she was out of town one weekend, and she testified that she retrieved the key as soon as she returned. (RR3: 60). Moreover, Wilder maintained that throughout their relationship, Williams was always required to knock when he arrived and wait for Wilder to answer the door. (RR3: 60-61). Appellant s Brief - Page 2

9 On February 13, 2008, Wilder made plans to go out for her sister s birthday during the evening. (RR3: 64). Williams called Wilder that evening, and came by her house a little after 7:00 PM to bring her flowers for Valentine s Day. (RR3: 65). Wilder testified she told Williams she was tired of waiting for him to leave his wife. (RR3: 86). That night, Wilder and her sister went out to dinner around 10:00 PM and then went out to a club afterwards, around midnight. (RR3: 67, 69). While she was out with her sister, Wilder left her young daughter home alone. (RR3: 68). Wilder testified that she returned home a little after 1:00 AM. (RR3: 70). Around 4:00 AM Wilder heard a loud thump and woke up to find Williams standing in her bedroom. (RR3: 72). Wilder stated that Williams grabbed her cell phone and began demanding to know why she had not been answering any of his calls. (RR3: 73). Wilder took her phone from Williams and threw it across the room. (RR3: 74). Wilder testified that Williams then took his hand up to the side of her face. (RR3: 74). When prompted by the prosecutor as to whether Williams hit her with a closed fist or open hand, Wilder could not remember. (RR3: 74). Wilder said she and Williams began to struggle and Wilder admitted to clawing Williams and wrestling with him until they fell onto the floor. (RR3: 74). Williams sat on top of Wilder trying to control her while she clawed and kicked at him. (RR3: 75). Wilder told the jury that Williams head-butted her several times and hit her repeatedly in the face. (RR3: 75-76). Wilder did not know how many times she was hit in the face, but her face went numb. (RR3: 77). When Williams got up and walked into the bathroom, Wilder threw a picture frame at him. (RR3: 78-79). Wilder stated that Williams then hit her laptop Appellant s Brief - Page 3

10 computer against the bed, and she threw another picture frame. (RR3: 79). A few minutes later, Williams left and Wilder called the police. (RR3: 79). Wilder testified that both of her eyes blackened the next day. (RR3: 81). Officer Chad Cooley is a police officer with the Cedar Hill Police Department. (RR3: 26). Cooley was the lead officer on the case, and he told the jury he interviewed Wilder on the morning of February 14, (RR3: 27-28). Cooley observed Wilder s injuries as being minor scratches on her face, swelling on the left side of her face and knots on her forehead and behind her ear. (RR3: 36). Cooley said Wilder s lip was busted on the inside. (RR3: 36). Appellant s Evidence Leon Grant testified that he is an employee of and a personal friend of Walt Williams. (RR3: ). Williams paid Grant to perform various work on Wilder s car. (RR3: 120). Grant accompanied Williams to visit Wilder at her home four or five different times. (RR3: 120). Williams never rang the doorbell when they visited Wilder. (RR3: 122). Wilder appeared fine with Williams letting himself into the house. (RR3: 122). Grant observed that Williams had a key to Wilder s home. (RR3: 122). However, they often entered the home through the back door, which was broken and could be opened without a key. (RR3: 121, 124). Grant remained friends with both Wilder and Williams after February 14, (RR3: 125). Grant spoke with Wilder after February 14, (RR3: 126). Wilder told Grant that after the incident on February 14, she bought a gun so she could shoot Williams. (RR3: 126). Grant, however, noted that Wilder continued to see Williams after the incident. Appellant s Brief - Page 4

11 (RR3: 128). Grant knew that Wilder and Williams still went out to eat together. (RR3: 128). Walt Williams testified that he is 55 years old. (RR3: 132). Williams said he has been married since 1992 and has two children. (RR3: 134). When Williams met Wilder he was having problems in his marriage. (RR3: 136). He believes it was a mistake to start the relationship with Wilder. (RR3: 136). Wilder always asked Williams to leave his wife. (RR3: 143). Williams always told Wilder that he would never leave his wife and children. (RR3: 143). Williams tried to help Wilder. (RR3: 137). He paid off all of Wilder s debts so she could buy a house. (RR3: 137). Williams continuously stressed to Wilder the importance of finishing school. (RR3: 137). Williams paid Wilder s closing costs on her new home. (RR3: 138). He also gave her financial help upwards of around $1,800 per month. (RR3: 138). Williams cared about Wilder s daughter as well. (RR3: 138). Williams often bought groceries and cooked for Wilder and her daughter. (RR3: 139). He would help her daughter with her homework. (RR3: 139). Sometimes, Williams had to intervene to stop Wilder when she would beat her daughter out of anger. (RR3: 138). Williams often had to get onto Wilder for leaving her nine year old daughter alone in the house at night. (RR3: 147). Williams was always welcome to walk into Wilder s house unannounced. (RR3: 142). She never asked him to not walk in without knocking. (RR3: 142). Williams often came in through the back door. (RR3: 141). The back door was broken and could not be locked. (RR3: ). Williams left clothes, a toothbrush, and other items at Wilder s house for when he would stay over. (RR3: 161). Appellant s Brief - Page 5

12 On February 13, 2008, Williams went to Wilder s house around 5:00 PM. (RR3: 145). Wilder told Williams that she was going out with her sister. (RR3: 145). She invited Williams to come back over around 10:00 PM that evening. (RR3: ). Williams called Wilder when he arrived back at her home that evening around 10:00 PM. (RR3: 146). No one answered the phone. (RR3: 146). Williams rang the doorbell, but no one answered the door. (RR3: 146). Through the window, Williams saw Wilder s daughter asleep in bed. (RR3: 146). Concerned that the daughter was home alone, Williams entered the house through the back door. (RR3: 146). Williams did not want to leave the child alone in the house. (RR3: 147). He waited for an hour and a half with Wilder s daughter. (RR3: 147). Eventually, Williams left because he was expected home with his wife. (RR3: 147). After going home, Williams continued to call Wilder. (RR3: 148). When he still had not reached her by 3:00 AM, he headed back to her house. (RR3: 148). When he arrived, Williams knocked on the back door as he was entering the house. (RR3: 149). Wilder met him as he was coming inside. (RR3: 149). Williams asked Wilder, What s wrong with you? (RR3: 150). In response, Wilder reached up and scratched Williams. (RR3: 150). Williams then grabbed Wilder s wrists. (RR3: 150). As Wilder tried to scratch Williams again, Williams was able to smell alcohol on her breath. (RR3: 150). Wilder then kneed Williams in the groin. (RR3: 150). Williams and Wilder began to wrestle. (RR3: 150). Williams tried to hold Wilder down by her arms. (RR3: 151). Wilder would not stop fighting, so he head-butted her once. (RR3: 151). Williams never hit Wilder with his hand. (RR3: 151). After he head-butted her, Williams Appellant s Brief - Page 6

13 got off of Wilder. (RR3: 151). When he got off of her, Wilder rolled off of the bed and hit her eye. (RR3: 151). After she got up, Wilder began throwing things at Williams. (RR3: 152). Following the incident, Wilder continued to talk to Williams. (RR3: 157). Wilder asked Williams to leave his wife. (RR3: 157). Wilder called Williams wife and harassed her about the affair. (RR3: 157). SUMMARY OF THE ARGUMENT I. The trial court erred in entering an affirmative finding of family violence outside the proper scope of authority granted in the statute. Texas Code of Criminal Procedure article specifically grants a trial court authority to enter an affirmative finding of family violence only where the defendant is tried for an offense under Title 5 of the Penal Code. Appellant was tried for an offense under Title 7. II. The trial court erred in entering an affirmative finding of family violence in the absence of a finding by the jury that Appellant committed family violence. The Sixth Amendment to the U.S. Constitution guarantees every criminal defendant the right to submit all legally essential facts to an impartial jury. III. The trial court erred in entering an affirmative finding of family violence because the state failed to give notice to Appellant before trial that it intended to seek an affirmative finding. Both the U.S. Constitution and the Texas Constitution require notice sufficient to allow an accused to adequately prepare a defense. IV. The evidence was factually insufficient to prove that Appellant was not acting in self-defense when he caused injuries to the complainant. The evidence showed that the Appellant s Brief - Page 7

14 complainant was prone to angry and violent outbursts, and the facts presented established that complainant s injuries were consistent with Appellant s theory of self-defense. No rational jury could have found that Appellant did not act in self-defense. ISSUES PRESENTED FOR REVIEW ISSUE PRESENTED FOR REVIEW NO. I THE TRIAL COURT ERRED IN ENTERING AN AFFIRMATIVE FINDING OF FAMILY VIOLENCE OUTSIDE THE PROPER SCOPE OF AUTHORITY GRANTED IN THE STATUTE. (CR:20) ISSUE PRESENTED FOR REVIEW NO. II THE TRIAL COURT ERRED IN ENTERING AN AFFIRMATIVE FINDING OF FAMILY VIOLENCE INSTEAD OF SUBMITTING THE ISSUE TO THE JURY. (CR:20) ISSUE PRESENTED FOR REVIEW NO. III THE TRIAL COURT ERRED IN ENTERING AN AFFIRMATIVE FINDING OF FAMILY VIOLENCE AFTER THE STATE FAILED TO GIVE PROPER NOTICE TO APPELLANT. (CR:20) ISSUE PRESENTED FOR REVIEW NO. IV THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT S CONVICTION FOR ASSAULT. (Entire Record) ISSUES PRESENTED FOR REVIEW RESTATED WITH ARGUMENT AND AUTHORITIES ISSUE PRESENTED FOR REVIEW NO. I THE TRIAL COURT ERRED IN ENTERING AN AFFIRMATIVE FINDING Appellant s Brief - Page 8

15 OF FAMILY VIOLENCE OUTSIDE THE PROPER SCOPE OF AUTHORITY GRANTED IN THE STATUTE. (CR:20) ISSUE PRESENTED FOR REVIEW NO. II THE TRIAL COURT ERRED IN ENTERING AN AFFIRMATIVE FINDING OF FAMILY VIOLENCE INSTEAD OF SUBMITTING THE ISSUE TO THE JURY. (CR:20) ISSUE PRESENTED FOR REVIEW NO. III THE TRIAL COURT ERRED IN ENTERING AN AFFIRMATIVE FINDING OF FAMILY VIOLENCE AFTER THE STATE FAILED TO GIVE PROPER NOTICE TO APPELLANT. (CR:20) (Issues I, II, and III are argued together) Factual Background The indictment against Walt Williams charged him, pursuant to of the Texas Penal Code, with burglary of a habitation owned by Porsche Wilder with the intent to commit assault. (CR: 2). This is the same indictment and charge on which Williams was tried. (RR3: 8). The indictment did not include any facts alleging that Williams and Porsche Wilder were in a dating relationship, nor did the indictment indicate that the state was seeking an affirmative finding of family violence. Furthermore, the state gave no notice to Williams, oral or written, that it intended to seek an affirmative finding of family violence. (RR5: 9). After the jury acquitted Wilder of the burglary of a habitation charge and convicted him of the lesser-included offense of assault, the state requested the trial court enter an affirmative finding of family violence. (RR5: 4-9). The trial judge granted the Appellant s Brief - Page 9

16 state s request and in the process noted that Williams filed a brief objecting to entry of the finding. (RR5:12; Supp. CR). Finding was not authorized by statute Article of the Texas Code of Criminal Procedure provides that, In the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence, as defined by Section , Family Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case. TEX. CODE CRIM.PRO.ANN. art It was under the authority of Article that the trial court judge in the instant case entered the affirmative finding of family violence. (RR5: 9). However, according to both the indictment and the jury charge, Williams was charged and tried for burglary of a habitation, an offense under Title 7 of the Penal Code. (CR1: 2, 7); see, TEX. PENAL CODE ANN thru (burglary of a habitation is in this group of offenses in Title 7 of the Penal Code). Therefore, the trial court had no authority under the statute to enter the affirmative finding of family violence at sentencing because burglary of a habitation is not a Title 5 offense. The Court of Criminal Appeals has long held that, when the language of the statute is unambiguous, we must give effect to the plain meaning of the words unless doing so would lead to absurd results. State v. Hardy, 963 S.W.2d 516, 519 (Tex.Crim.App. 1997), citing, Boykin v. State, 818 S.W.2d 782, 786 (Tex.Crim.App. 1991). The language of Article could not be more unambiguous. The legislature clearly limited the application of the statute to trials for offenses under Title 5 of the Penal Code. The statute does not apply Appellant s Brief - Page 10

17 to offenses convicted under Title 5, or offenses charged with the intent to commit an offense under Title 5, only those tried under Title 5. Therefore, given the plain meaning of the statute, the trial court had no authority to enter an affirmative finding of family violence where Williams was not tried for an offense under Title 5. Where the statute is clear and unambiguous, the Legislature must be understood to mean what it had expressed, and it is not for the courts to add or subtract from such a statute. Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991) (quoting Ex parte Davis, 412 S.W.2d 46, 52 (Tex. Crim. App. 1967)). Right to Jury Trial The Sixth Amendment to the United States Constitution guarantees that, In all criminal prosecutions, the accused shall enjoy the right to a public trial, by an impartial jury U.S. CONST. amend. VI. Both the Due Process Clause of the Fourteenth Amendment and the Sixth Amendment right to a jury trial require that every element of an offense of which a defendant is accused must be found true by a jury beyond a reasonable doubt before the defendant may be convicted of that offense. See, United States v. Gaudin, 515 U.S. 506, 510 (1995). In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court held unconstitutional a New Jersey statute that extended the range of punishment for a second-degree offense where the judge determined the crime was motivated by a racial bias. Whereas the Sixth Amendment had always required a prosecutor to prove to a jury all facts legally essential to the crime charged, Apprendi recognized that the Sixth Amendment requires the same of any fact essential to the punishment imposed. See, Blakely v. Washington, 542 U.S. 296, 313 (2004). Appellant s Brief - Page 11

18 In explaining the land-mark ruling, the Supreme Court stated that the Constitution requires, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Id, at 476, citing, Jones v. United States, 526 U.S. 227 (1999). The Supreme Court has further explained that the Sixth Amendment is violated by any statutory provision which enhances a defendant s penalty based on additional facts where the provision is mandatory and impose(s) binding requirements on all sentencing judges. Cunningham v. California, 549 U.S. 270, 291 (2007). Williams recognizes that in its sole opinion on the issue, the Texas Court of Criminal Appeals has held that Apprendi does not apply to an affirmative finding of family violence. See, Butler v. State, 189 S.W.3d 299, 302 (Tex.Crim.App. 2006). Furthermore, Williams concedes that the Court of Criminal Appeals opinion in Butler, supra was entirely consistent with Apprendi and its progeny, given the arguments presented by Butler. In Butler, the defendant appealed the affirmative finding of family violence on the basis that 1) the finding could be used as an enhancement tool in the future, and 2) the finding subjected the defendant to additional probation conditions such as a requirement that he attend a Batterer s Intervention and Prevention Program. Id, at The Court of Criminal Appeals correctly found that Apprendi does not apply to either of the complained-of consequences in Butler. Id. However, the defendant in Butler never raised the issue of the prohibition on possessing a firearm that arises automatically from a finding of family violence, and so that issue remains unaddressed by the Court of Criminal Appeals. See, 18 U.S.C. 922(g)(9); also see, TEX. PENAL CODE ANN (b). Appellant s Brief - Page 12

19 Most certainly had the Court of Criminal Appeals had the opportunity to examine the deprivation of a defendant s Second Amendment right to possess a firearm that is mandated by the affirmative finding of family violence, the Court would have found Apprendi to apply. Undoubtedly, the Second Amendment prohibition at issue meets all of the characteristics outlined by Apprendi and its progeny. As required by Cunningham, the prohibition is mandatory and binding; once the finding of family violence is made, the trial court judge has no discretion in imposing the prohibition. The prohibition on possessing a firearm arises as a matter of law. As described in Apprendi, the deprivation of a defendant s Second Amendment right is without question an increase in penalty. While the prohibition on the right to own a firearm does not lengthen Williams sentence, it is nevertheless an additional penalty. The Supreme Court has never specifically limited its holding in Apprendi to sentence length or range. See, Apprendi v. New Jersey, 530 U.S. at 476 (using the term penalty instead of sentence or range ). Furthermore, the analysis of this issue syncs almost verbatim with the Supreme Court s analysis in Blakely v. Washington where it states, It remains the case that the jury s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact. Blakely v. Washington, 542 U.S. at 305. In the present case, the jury found Williams guilty of misdemeanor assault. (CR: 18). The jury did not find that Williams committed family violence or that Wilder was a member of Williams family or household, nor was it asked to make such a finding. It was the trial judge, not the jury, who made the additional finding that Williams was in a dating relationship with Porsche Wilder and who then made an affirmative finding that Williams committed family violence. Appellant s Brief - Page 13

20 Therefore, the affirmative finding of family violence without question invokes the holding in Apprendi, because it was based on a finding not made by the jury, that Williams was in a dating relationship with Wilder, and as such, is based on a fact issue that the Sixth Amendment mandates must be proven beyond a reasonable doubt to the jury. This fact, found by the judge and not the jury, resulted in the additional, automatic penalty of Williams being deprived of his right to possess a firearm. Right to Notice Equally essential to the holding in Apprendi is the right of the accused to be given fair notice of the facts giving rise to his punishment. Both the United States Constitution and the Texas Constitution require that proper notice be given to the accused. U.S. CONST. amend. VI. TX. CONST. art.1, 10. The notice required is that which is specific enough to inform the accused of the nature of the accusation against him and sufficient to allow him to adequately prepare a defense. See, Lawrence v. State, 240 S.W.3d 912, 916 (Tex.Crim.App. 2007); State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). An indictment is usually found to give sufficient notice where it tracks the language of the relevant statute. State v. Mays, 967 S.W.2d 404 (Tex.Crim.App. 2004). The Texas Court of Criminal Appeals has long held that the Sixth Amendment notice requirement extends to cases where the state seeks an affirmative finding of a deadly weapon. See, Ex Parte Beck, 769 S.W.2d 525 (Tex.Crim.App. 1989). Notice is required of every circumstance which would affect the degree of punishment. Id, at 527. Although the state is not required to include their intent to seek an affirmative finding of a deadly weapon in the indictment, they are required to give some form of written notice to the Appellant s Brief - Page 14

21 defendant. Patterson v. State, 138 S.W.3d 643, 647 (Tex.App. Dallas 2004, no pet.). Furthermore, failure to give any notice is fundamental error and requires that the deadly weapon finding be excluded from the judgment. Ex Parte Patterson, 740 S.W.2d 766, 776 (Tex.Crim.App. 1987) (overruled on other grounds). The Court of Criminal Appeals has stated that notice is required of any fact that would result in an impact on liberty greater than a bare conviction. Johnson v. State, 784 S.W.2d 413, 415 (Tex.Crim.App. 1990). The Dallas Court of Appeals echoed the same concern when it held that, while the finding did not operate to lengthen appellant s sentence, it did impact the character of the punishment. Patterson v. State, at 648. Given the mandatory prohibition on a defendant s right to own a firearm, the affirmative finding of family violence is directly analogous to an affirmative finding of a deadly weapon. Both affirmative findings create an increase in penalty that would not be possible without an additional finding of fact. Therefore, the same notice requirements demanded by the U.S. and Texas Constitutions in a case involving an affirmative finding of a deadly weapon necessarily apply to an affirmative finding of family violence. The prohibition on owning a firearm Whether failure to give a defendant notice of a consequence of his sentence is reversible error depends on the nature of the consequence itself. See, Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364 (4 th Cir. 1973) (noting the longstanding principle that a criminal defendant need only be given notice of direct consequences of conviction before entering a plea of guilty). The Texas Court of Criminal Appeals has distinguished between direct and collateral consequences of a conviction by holding that, if the consequence is Appellant s Brief - Page 15

22 definite and largely or completely automatic, then it is a direct consequence. Mitschke v. State, 129 S.W.3d 130, 135 (Tex.Crim.App. 2004). Furthermore, a collateral consequence has been described as any consequence that lies within the discretion of the court to impose it. Id, at 134 (citing U.S. v. Kikuyama, 109 F.3d 536, 537 (9 th Cir. 1997)). Indeed, in Mitschke, supra, the Court held that sex offender registration was a direct consequence because it was direct and automatic, and the trial court had no discretion in imposing it. Id. The circumstances of an affirmative finding of family violence are directly analogous to those of sex offender registration in Mitschke. Both Article of the Texas Code of Criminal Procedure and of the Texas Penal Code make it clear that the prohibition on owning a firearm is a direct and automatic consequence of an affirmative finding of family violence. Also see, 18 U.S.C. 922(g)(9) and TEX. PENAL CODE ANN (b). The trial court has no discretion in imposing the prohibition. Therefore, the denial of a criminal defendant s right to own a gun once an affirmative finding of family violence is entered is a direct, not collateral, consequence. Moreover, the Court of Criminal Appeals has explicitly refused to limit the classification of direct consequences to those conditions that affect the length or range of a defendant s sentence. See, Mitschke, supra, 129 S.W.3d at 135 (holding that if the classification was limited to consequences affecting the range of sentence, then no consequence would be direct). This Court has echoed the Court of Criminal Appeals by recognizing that an affirmative finding can be harmful even if it does not lengthen the defendant s sentence if the consequence impacts the character of the punishment. Patterson v. State, 138 S.W.3d 643, 648 (Tex.App. Dallas 2004, no pet.) (emphasis added). Appellant s Brief - Page 16

23 There can be no question that a prohibition on a defendant s right to own a firearm impacts the character of his sentence, even if it does not affect the length or range. The United States Supreme Court has recognized that within the criminal process there exist some individual rights so fundamental that they can be more important to the client than any potential jail sentence. See, Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010) (holding that the Sixth Amendment right to effective counsel requires counsel to give a defendant notice of possible deportation consequences before entering a guilty plea), citing, INS v. St. Cyr, 533 U.S. 289, 323 (2001). The Second Amendment right to keep and bear arms undoubtedly is a right that rises to that very level of importance. The Supreme Court recently described the Second Amendment as a right fundamental to our scheme of ordered liberty, and deeply rooted in this Nation s history and tradition. McDonald v. City of Chicago, Illinois, 130 S.Ct. 3020, 3036 (2010) (holding that the 2 nd Amendment applies to the states through the due process clause of the 14 th Amendment). Argument In the instant case, the trial court misapplied the statute governing the making of family violence findings and violated multiple Constitutional provisions when it entered the affirmative finding of family violence at sentencing. Williams was denied his right to notice before trial that the state intended to seek a finding of family violence. In fact, based on the crime Williams was accused of committing, burglary of a habitation under Title 7 of the Penal Code, Williams had the entirely reasonable belief that no finding of family violence was even possible in his case. The crime for which Williams was tried was specifically not covered by the statute governing family violence findings. There was thus no statutory Appellant s Brief - Page 17

24 authorization for the trial court to enter an affirmative finding of family violence yet the trial court did so anyway. There was no conceivable way that Williams could have adequately prepared his defense when he was not given statutory notice or any other type of notice that his charge carried the possibility of that a family violence finding. Had Williams been aware that the state was, or even could seek an affirmative finding of family violence, he certainly could have altered his defensive strategy. Williams would have seriously reconsidered his choice to testify on his own behalf, and would have likely called more witnesses to testify as to the complainant s lack of credibility. Because he did not receive proper notice, Williams was stripped of his Second Amendment right without a fair opportunity to prepare a defense tailored to protect that right. Moreover, Williams was not only denied his Constitutional right to notice, he was also denied his right to a jury trial. Because an individual right as fundamental as the right to keep and bear arms was at stake, Williams had the right to hold the state to their burden of proving every fact necessary to take away that right to a jury beyond a reasonable doubt. As it stands, Williams was essentially blindsided at sentencing. The jury was never asked to determine whether Williams committed family violence or whether he was in a dating relationship with Porsche Wilder. Williams was deprived of an individual right as fundamental to our nation s history as any other without a single safeguard of due process no notice, and no hearing. For these reasons, the family violence finding should be removed from Williams judgment. ISSUE PRESENTED FOR REVIEW NO. IV THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT S Appellant s Brief - Page 18

25 CONVICTION FOR ASSAULT. (Entire Record) Introduction The state charged Walter Williams with burglary of a habitation with the intent to commit assault. (CR: 2). The jury found Williams not guilty of the burglary charge and returned a verdict of guilty on the lesser-included offense of assault. (CR: 18). Included in the jury charge was an instruction on the issue of self-defense. (CR: 12). Once the issue of self-defense is raised, it must be disproved by the state beyond a reasonable doubt. See, TEX. PENAL CODE ANN. 2.03(d). It is on this issue that the evidence was factually insufficient to support the verdict. Legal Standard When deciding whether the evidence is factually sufficient to support a conviction, the reviewing court examines all the evidence without the prism of the light most favorable to the verdict and must then set aside the verdict if it is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. See, Watson v. State, 204 S.W.3d 404 (Tex.Crim.App. 2006); Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 2006). The ultimate question in a factual sufficiency review is whether, considering all the evidence in a neutral light, a fact finder was rationally justified in finding guilt beyond a reasonable doubt. Watson, 204 S.W.2d at The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See, Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The reviewing court must afford deference to the fact finder s decisions about the weight and credibility of evidence. Id. at 9. That said, a reviewing court is authorized to disagree with the jury s determination. Appellant s Brief - Page 19

26 Martinez v. State, 129 S.W.3d 101, 106 (Tex.Crim.App. 2004). The Court of Criminal Appeals has clearly conceived of just such an eventuality. To this end, in Goodman v. State, the Court adduced a hypothetical scenario in which a reviewing court has no choice save to attribute a verdict premised upon a Cretan Liar s inculpatory testimony as opposed to the exculpatory testimony of twelve Boy Scouts to bias, irrationality, or some other peculiarity. 66 S.W. 3d 283, (Tex.Crim.App. 2001). Nevertheless, due deference must be given to the fact finder s determinations concerning the weight and credibility of the evidence and reversal of the fact finder s determination is appropriate only to prevent the occurrence of a manifest injustice. Martinez, 129 S.W.3d at 106. In Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991), the Court of Criminal Appeals explained the burdens involved when a defense is raised under Penal Code Section 2.03 and the proper analysis under a legal sufficiency challenge. According to the Court of Criminal Appeals, the defendant bears the burden of production, which requires the production of some evidence that supports the particular defense. Id. at 913. Once the defendant produces some evidence, the state then bears the burden of persuasion to disprove the defense. Id. at The burden of persuasion requires the state to prove its case beyond a reasonable doubt. Id. at 913. When a jury finds a defendant guilty, there is an implied finding against the defensive theory. Id. at 914. [W]hen a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the state s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the Appellant s Brief - Page 20

27 evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). The El Paso Court of Appeals articulated the relevant standard for resolving a question involving the factual sufficiency of the evidence to reject a self-defense claim as whether weighing all the evidence, the evidence supporting the defense is strong enough that the factfinder s rejection of the defense does not meet the beyond-a-reasonable-doubt standard. Whipple v. State, 281 S.W.3d 482, 496 (Tex. App. - El Paso 2008, pet. ref d). Who was the first aggressor? The evidence presented at trial by both sides made it impossible to determine who started the physical altercation. Porsche Wilder admitted at trial that when Williams first approached and reached for her phone, Wilder grabbed the phone and threw it. (RR3: 74). Wilder also admitted to grabbing and scratching at Williams neck, which is how Williams described the physical altercation beginning. (RR3: 74, 150). Strangely, in describing the event, Wilder did not directly claim that Williams first hit her, only that he took his hand up to the side of my face. (RR3: 47). It was only after she was directly prompted by the prosecutor that Wilder claimed Williams hit her first, and not the other way around. (RR3: 47). Even then, Wilder said she could not remember whether she was hit with an open hand or a closed fist. (RR3: 48). From there, the accountings of the event by Wilder and Williams matched fairly clearly. Both testified that Wilder continued to kick and scratch and swing at Williams. (RR3: 75-76, ). Both testified that Williams tried to restrain Wilder by pinning her arms down. (RR3: 75-76, ). The only difference between the testimonies of the two Appellant s Brief - Page 21

28 witnesses was as to whether Williams continued to hit Wilder. Nature of the injuries The state presented evidence through the testimony of both Officer Cooley and Porsche Wilder that Wilder sustained injuries during the altercation. However, even between the officer and Wilder, the testimony differed as to the description and extent of the injuries. For example, Wilder testified that Williams hit her repeatedly on both sides of her face. (RR3: 76). However, Officer Cooley testified that he observed some swelling, but only on the left side of Wilder s face. (RR3: 36). Officer Cooley also testified that he observed minor scratches, and knots on Wilder s forehead and behind her ear. (RR3: 36). The testimony presented by Williams was more consistent with the injuries described by Officer Cooley than the testimony presented by Wilder, thus undercutting Wilder s credibility. Williams testified that he head-butted Wilder when she would not stop kicking and kneeing him in the groin. (RR3: 150). The knot on Wilder s forehead was certainly consistent with being head-butted. Williams also testified that Wilder hit the back of her head in the struggle. (RR3: ). Finally, Williams testified that Wilder hit her eye on the bedpost when she fell off of the bed. (RR3: 151). Wilder herself admitted falling off of the bed onto the floor. (RR3: 75). Furthermore, Officer Cooley was completely unable to testify as to whether Wilder s injuries were more consistent with her story or Williams story because neither Officer Cooley nor his partner ever interviewed Williams to discover his version of events. (RR3: 22, 24, 50). Finally, in addition to the evidence presented about the incident on February 14, 2008, Appellant s Brief - Page 22

29 Williams presented evidence showing that Porsche Wilder was in general prone to angry and sometimes violent outbursts. Williams himself testified that he often had to intervene and stop Wilder from beating her daughter out of anger. (RR3: 138). Williams additionally testified that both before and after the incident occurred, Wilder repeatedly called and harassed his wife. (RR3: 157). Perhaps most telling, though, was the testimony of Leon Grant who told the jury that after the incident occurred, Wilder told him that she had bought a gun for the purpose of shooting Williams. (RR3: 126). Argument Considering all of the evidence in a neutral light, it cannot be said that the jury s finding that Walter Williams did not act in self-defense was a rational finding. Wilder s testimony lacked credibility due to her gross exaggerations and inconsistencies. She had to be prompted by the prosecutor as to what to say, and her account of the altercation did not match Officer Cooley s observations at the scene. Furthermore, the evidence presented by both sides supported Williams contention that the only injuries he inflicted were defensive ones. Because the jury found that Williams had consent to be in the house, he was legally entitled to use reasonable force to defend himself when Wilder began scratching and kicking him. Williams presented additional evidence that showed Wilder was prone to angry and violent outbursts. The state, however, did not present evidence sufficient to disprove Williams claim of self-defense beyond a reasonable doubt. Therefore, the evidence is factually insufficient to establish that Williams was not acting in self-defense when he caused the injuries to Porsche Wilder. Williams conviction should therefore be reversed and this case should be remanded to the district court Appellant s Brief - Page 23

30 for a new trial. CONCLUSION FOR THE ABOVE REASONS, Walt Williams respectfully asks that this Honorable Court REVERSE AND REMAND this case to the district court for a new trial and that this Court REFORM the judgment to remove the affirmative finding of family violence. Respectfully submitted, ROBERT N. UDASHEN, P.C. State Bar No SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road Suite 250 Dallas, TX fax Attorney for Appellant CERTIFICATE OF SERVICE I, the undersigned certify that a true and correct copy of Appellant s Brief was served to Craig Watkins, District Attorney of Dallas County, on this day of, 2010, by placement in the United States mail to Craig Watkins, District Attorney of Dallas County, 133 Riverfront Boulevard, L.B. 19, Dallas, Texas ROBERT N. UDASHEN, P.C. Appellant s Brief - Page 24