Wilson, Keith Ladale

PD-1557-15 PD-1557-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/1/2015 5:56:10 AM Accepted 12/1/2015 3:55:12 PM No. ____________________ ABEL ACOSTA CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

KEITH LADALE WILSON,

Petitioner v.

THE STATE OF TEXAS,

Respondent

No. 01-13-00917-CR Court of Appeals First District

PETITION FOR DISCRETIONARY REVIEW

James F. Keegan Texas Bar No. 11155400 4421 Jim West Street Bellaire, Texas 77401 December 1, 2015 713-668-4797 713-668-4798-facsimile whynyet@sbcglobal.net Attorney for Petitioner

Oral Argument Requested

IDENTITY OF JUDGE, PARTIES AND COUNSEL

David V. Wilson, Senior Judge Polk County, Texas Trial Judge

Keith Ladale Wilson Petitioner

Represented at trial and on appeal by:

James F. Keegan Texas Bar No. 11155400 4421 Jim West Street Bellaire, Texas 77401 713-668-4797 713-668-4798-facsimile whynyet@sbcglobal.net

The State of Texas Respondent

Represented at trial by:

Philip Anthony Grant Texas Bar No. 00796662 District Attorney pro tem Tiana Jean Sanford Texas Bar No. 24062269 Assistant District Attorney pro tem 207 W. Phillips 2nd Floor Conroe, Texas 77301 936-539-7800 936-760-6940-facsimile i

Represented on appeal by:

Philip Anthony Grant Texas Bar No. 00796662 District Attorney pro tem Jason Larmon Texas Bar No. 24072468 Assistant District Attorney pro tem 207 W. Phillips 2nd Floor Conroe, Texas 77301 936-539-7800 936-760-6940-facsimile DAInfo@mctx.org

ii

TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES AND COUNSEL ………………….……………………….. i TABLE OF CONTENTS ………………………………………..………………………...…………. iii INDEX OF AUTHORITIES ………………………………………..……………...……………….. iv STATEMENT REGARDING ORAL ARGUMENT …………………………....…..………… vi STATEMENT OF THE CASE …………………………………..…………….....……………….. vii STATEMENT OF PROCEDURAL HISTORY …………………………...….….………….. viii GROUND FOR REVIEW …………………………..………….…...……..……….………………… 6 ARGUMENT ……………………………………...............................................................…………. 6 PRAYER FOR RELIEF ……………………………………..………………………………………. 13 CERTIFICATE OF COMPLIANCE ………………………………………………..…….…….... 14 CERTIFICATE OF SERVICE ………………………………………………………..………….... 14 APPENDIX A – OPINION OF THE COURT OF APPEALS APPENDIX B – CONCURRING OPINION OF JUSTICE HUDDLE

iii

INDEX OF AUTHORITIES

Cases Page Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000) ………...…...………. 7 Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007) ………………...………. 3

Curtis v. State, 89 S.W.3d 163 (Tex.App.-Fort Worth 2002, pet. ref’d) ...…………………………….…….....… 4,7

Davis v. State, 979 S.W.2d 863 (Tex.App.-Beaumont 1998, no pet.) …………..……………………..…...…………. 3

Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App. 2001) ………………...………..……. 9 Ovalle v. State, 13 S.W.3d 774, 787 (Tex.Crim.App. 2000) ………...................……. 9

iv Texas Rules of Appellate Procedure Rule 38.1 ………………………………………..……….……...……………………………………….. 8 Rule 38.9 ………………………………………..……….……...…………………………………….. 8,9 Texas Rules of Evidence Rule 402 ……………………...………………...……………..………………………..…………….. 2,4 Rule 403 ……………………...………………...……………..………………………..…………….. 2,4 Rule 404(b) ……………………...………………...………..………………………...…………….. 2,3

v

STATEMENT REGARDING ORAL ARGUMENT

Petitioner requests oral argument to more effectively explain the applicability of Rule 38 of the Texas Rules of Appellate Procedure to the his briefing of Issue No. 2 before the First Court of Appeals.

vi

STATEMENT OF THE CASE

Wilson was charged in No. 22281 with second degree felony sexual assault, the indictment (CR-6) alleging that, on or about 29 May 2010, in Polk County, Texas, he intentionally or knowingly caused the penetration of the sexual organ of Joyce Doe with his sexual organ, without her effective consent.

This appeal arises from a retrial beginning on 19 August 2013, after an earlier hung jury (see CR-86). Voir dire was conducted (see RR2), Wilson plead not guilty (RR3-12), the State presented twelve witnesses, Wilson five, including himself, the State presented two rebuttal witnesses, and Wilson testified again. The jury found Wilson guilty of sexual assault as charged in the indictment. CR-67 and RR5-119.

Wilson elected the jury to assess his punishment (CR-24), and the punishment phase of trial was conducted on 21 August 2013 and 22 August 2013. See RR6 & RR7. The jury assessed Wilson’s punishment as confinement in the Texas Department of Criminal Justice – Institutional Division for a term of 14 years. CR-71 & RR7-126.

vii

STATEMENT OF PROCEDURAL HISTORY

1. The Court of Appeals for the First District issued its published opinion on 25 August 2015. Justice Huddle issued a concurring opinion.

2. Petitioner timely filed a motion for rehearing and a motion for en banc reconsideration on 9 September 2015.

3. The Court of Appeals denied both the motion for rehearing and the motion for en banc reconsideration on 3 November 2015. Justice Huddle would have granted rehearing, but the Court unanimously denied the motion for en banc reconsideration.

viii *1 TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

Keith Ladale Wilson petitions the Court to review the decision of the Court of Appeals for the First District in 01-13-00917-CR, affirming his conviction for sexual assault in No. 22281 in the 411th District Court of Polk County, Texas, and his sentence of confinement in the Texas Department of Criminal Justice – Institutional Division for a term of 14 years.

THE ISSUE PRESENTED TO THE COURT OF APPEALS

By his brief, Wilson presented five issues to the Court of Appeals, but that Court’s disposition of only one, No. 2, is challenged here. Issue No. 2 was as follows:

2. The court below erred in allowing the State to present evidence of an extraneous sexual assault alleged to have been committed after the alleged sexual assault for which Wilson was on trial. RR5-5-73.

THE ARGUMENT OF WILSON TO THE COURT OF APPEALS

The first issue Wilson presented to the Court of Appeals constituted a challenge to the sufficiency of the evidence to sustain his conviction, and, in support of his challenge, Wilson presented a detailed, 27-page summary of the trial evidence, replete with the required page references (Brief of Appellant – 5-32), including a summary of the evidence of the extraneous sexual assault upon another young woman, Brianna (Brief of Appellant – 30-32).

The second issue Wilson presented to the Court of Appeals was his challenge to the admission of evidence of an extraneous sexual assault, which he argued as follows:

After Wilson rested, the court below allowed the State to present evidence of an extraneous sexual assault alleged to have been committed on the night of 25 December 2011. Two witnesses testified on behalf of the State, Brianna and Jenny Smith (RR5-22-77), and Wilson testified that he had not even been at the scene that night (RR5-79). Wilson has already summarized the evidence regarding the extraneous offense, and his summary is incorporated by reference, rather than unnecessarily repeated.

Prior to the presentation of the evidence of the extraneous offense, the court below allowed the State and the defense to argue for, and against, respectively, its presentation. RR5-5-13. At the conclusion of the argument, the court ruled that the evidence was admissible. RR5-13. Wilson understands the State to have presented the evidence to rebut his defensive theory of consent, and to show his intent to have sex with an unconscious, non-consenting woman. RR5-11.

The evidence of the extraneous offense was inadmissible. Rule 404(b) of the Texas Rules of Evidence provides, in relevant part, as follows:

Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident … .

Rule 403 provides that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Rule 402 prohibits the admission of evidence which is not relevant.

”Probative value” refers to the inherent probative force of an item of evidence – how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation – coupled with the need of the proponent for that item of evidence. “Unfair prejudice” refers to a tendency to suggest decision on an improper basis, commonly, but not necessarily, an emotional one. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007).

Immediately evident is that the facts and circumstances of the alleged assault of Joyce Doe and of the alleged assault of Brianna are in almost no way similar. The State attempted to prove that Wilson had assaulted Joyce, whom he had not previously met, at a party, inside a home, while numerous people were still in attendance, while Joyce was intoxicated, and while he and Joyce were alone in a game room. The State attempted to prove that Wilson, more than a year-and-a-half later, had assaulted Brianna, whom he had previously known, and with whom he had previously engaged in consensual sexual conduct (see RR5-14-15), outside, in a wooded area, in or around an automobile, in the presence of one or two of his acquaintances, after Brianna had agreed to engage in sexual conduct with one of those acquaintances for a fee. Brianna was not even certain that it was Wilson who had assaulted her. The evidence of the alleged assault of Brianna can not have rebutted Wilson’s defensive theory of consent, or shown his intent of having sex with an unconscious, non-consenting woman. Brianna was not unconscious. The State presented the evidence only to show character conformity, which is not a proper purpose for admission under Rule 404(b).

Davis v. State, 979 S.W.2d 863 (Tex.App.-Beaumont 1998, no pet.), cited by the State in argument before the court below, is distinguishable. The defendant was convicted of aggravated kidnapping and aggravated sexual assault, upon evidence that he had suddenly announced to the victim that he was going to rape her, and had picked up a knife, struck her in the face with his fist, dragged her from her mother’s home, carried her to his own house, and there had violated her vaginally and orally, and attempted to violate her anally. He repeatedly struck her and pulled her hair, and always had the knife somewhere on the bed.

On appeal the court affirmed, rejecting argument that the trial court had erred in admitting testimony of extraneous offenses with language which is instructive –

Although we find that Davis opened the door to rebuttal evidence concerning the defensive theory of consent, we are still required, under a Rule 404(b) objection, to consider whether the extraneous offense testimony was relevant to any fact of consequence in the case other than character conformity. … We conclude it was. Testimony that Davis had on prior occasions and under similar facts restrained Wallace and Flenoury for several hours, while either attempting and/or completing anal sex without their consent, makes it more likely that Davis intended to restrain, beat, and have anal, oral, and vaginal sex with DP without her consent. Consent to have sex without the consent of DP was an elemental fact.

At 867.

In Curtis v. State, 89 S.W.3d 163 (Tex.App.-Fort Worth 2002, pet. ref’d), the court reversed a conviction for capital murder because of the erroneous admission of evidence of an extraneous offense. The dissimilarities between the two offenses were considerable, and the court held that the trial court’s ruling that the evidence was admissible fell outside the zone of reasonable disagreement as to whether the offenses were similar enough to warrant admission to show identity.

The court further held that the evidence of the extraneous offense was irrelevant to the issue of intent, noting that the State may not introduce extraneous offenses as circumstantial evidence of an element in its case-in- chief if that element can be readily inferred from other uncontested evidence. At 175. The court also rejected argument that the evidence was admissible to show that the deceased victim had not consented to sexual intercourse days before her murder, rather than having been sexually assaulted contemporaneously with her murder. Finally, the court held that the evidence was inadmissible under Rule 403, because it was unfairly prejudicial.

Finally, the evidence of the alleged assault of Brianna should have been excluded by Rule 403 and Rule 402, as its probative value was substantially outweighed by the danger of unfair prejudice, and it was irrelevant. Wilson was prejudiced by its admission. He has already summarized the guilt/innocence phase evidence, and his summary is incorporated by reference, rather than unnecessarily repeated. However, Wilson would note

that the evidence of the extraneous offense was not admitted at his first trial (see CR-59-61 and RR2-6-9), which ended in a hung jury.

Brief of Appellant – 36-40.

THE OPINIONS OF THE COURT OF APPEALS

With an opinion issued on 25 August 2015, the Court of Appeals overruled Wilson’s Issue No. 2. The Court, in an opinion authored by Justice Jennings, found that Wilson “does not argue that he was harmed” by the admission of the evidence of an extraneous sexual assault. Opinion – 24. The Court held that, because he had not “adequately briefed his extraneous-offense issue by identifying the harm that he suffered as a result of the admission of the complained-of evidence”, Wilson had waived the issue. Opinion – 24.

Justice Huddle authored a concurring opinion, disagreeing “with the majority’s conclusion that Wilson waived his challenge to the trial court’s admission of extraneous-offense evidence due to inadequate briefing.” Concurring Opinion – 1. However, Justice Huddle concluded that the “trial court’s admission of the extraneous-offense evidence was not an abuse of discretion.” Concurring Opinion – 7.

GROUND FOR REVIEW

The Court of Appeals erred in holding that Wilson had waived his challenge to the admission of the evidence of an extraneous sexual assault because he had inadequately briefed resulting harm.

ARGUMENT

It is important to emphasize that the Court of Appeals did not find that Wilson had inadequately briefed his entire challenge to the admission of the evidence of an extraneous sexual assault. Rather, the Court found only that Wilson had inadequately briefed harm. The assertion of the Court that Wilson had not argued in his brief that he was harmed by the admission of the evidence is factually not true. Wilson specifically and unambiguously argued, “Wilson was prejudiced by its admission.” Brief of Appellant – p. 40. Further, Wilson did identify the harm – his first trial ended in a hung jury, whereas his second did not.

In finding that Wilson had inadequately briefed harm, the Court of Appeals was not only unable to find Wilson’s argument, but searched for it in isolation from the remainder his brief. The Court made no mention of Wilson’s exhaustive summary of the guilt/innocence phase evidence, including the evidence of the extraneous sexual assault; made no mention that Wilson had specifically and unambiguously incorporated that summary by reference into his argument that he was prejudiced; made no mention of *7 Wilson’s 4-page argument that the evidence of the extraneous sexual assault had been erroneously admitted; made no mention that Wilson had cited in his argument Curtis v. State, 89 S.W.3d 163 (Tex.App..-Fort Worth 2002, pet. ref’d), in which the court reversed a conviction for capital murder because of the erroneous admission of evidence of an extraneous offense; and made no mention that Wilson had argued that his first trial, during which the evidence had not been admitted, had concluded with a hung jury. In the Court’s analysis, Wilson’s argument has not merely become unrecognizable – it has vanished. This is hardly a fair reading, much less a liberal reading, of Wilson’s brief.

In finding that Wilson had inadequately briefed harm, the Court of Appeals relied at least in part upon Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000). However, Cardenas v. State is readily distinguishable, as none of the cases cited by the appellant therein was applicable to the issue under review, and the appellant therein failed to address whether the alleged error was harmless. Wilson, on the other hand, cited applicable cases, and, as he has already noted, the assertion of the Court that Wilson had not argued in his brief that he was harmed is factually not true.

It is not for the Court of Appeals to search for a reason to refuse to address an issue it would prefer not to address. The Texas Rules of Appellate Procedure include the following: 38.1 Appellant’s Brief

(i) Argument. The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.

38.9 Briefing Rules to be Construed Liberally

Because briefs are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case, substantial compliance with this rule is sufficient, subject to the following:

(a) Formal Defects. If the court determines that this rule has been flagrantly violated, it may require a brief to be amended, supplemented, or withdrawn. If another brief that does not comply with this rule is filed, the court may strike the brief, prohibit the party from filing another, and proceed as if the party had failed to file a brief.

(b) Substantive Defects. If the court determines, either before or after submission, that the case has not been properly presented in the briefs, or that the law and authorities have not been properly cited in the briefs, the court may postpone submission, require additional briefing, and make any other order necessary for a satisfactory submission of the case.

Wilson argument regarding the admission of the evidence of an extraneous sexual assault was in substantial compliance with Rule 38. It was clear and concise, and included appropriate citations to authorities and to the record. The Court of Appeals made no Rule 38.9(a) determination that Wilson had flagrantly violated Rule 38. Nor could it. Wilson’s brief stands on its own *9 merits, and is a genuine effort. Notwithstanding the absence of such a determination, the Court did not order that Wilson’s brief be “amended, supplemented, or withdrawn.” The Court did make a Rule 38.9(b) determination that Wilson had not argued that he was harmed by the admission of the evidence of an extraneous sexual assault, but did not “require additional briefing” or “make any other order necessary for a satisfactory submission of the case.”

Johnson v. State, 43 S.W.3d 1 (Tex.Crim.App. 2001), and Ovalle v. State, 13 S.W.3d 774 (Tex.Crim.App. 2000), cited by Justice Huddle in his concurring opinion, although not directly on point, are instructive. No burden to show harm should be placed on a defendant who appeals. No party should have the burden to prove harm from an error, and there is ordinarily no way to prove actual harm. It is the duty of the reviewing court to assess harm from the context of the error. Parties may assist by suggesting how the appellant was harmed, or was not, but it is the responsibility of the reviewing court to decide whether it is likely that the error had some adverse effect on the proceeding. Johnson v. State at 4, and Ovalle v. State at 787.

The Court of Appeals can not have been concerned about delay. Wilson’s attorney tried this case twice in August 2013, first from Monday, 5 August 2013, through Thursday, 8 August 2013, and second from Monday, 19 *10 August 2015, through Thursday, 22 August 2015. See CR-85-87. After trial had concluded the second time, he filed a motion to withdraw on 22 August 2013, which was granted by the trial court the same day. CR-72-73. The trial court appointed another attorney to represent Wilson on appeal. CR-78.

Wilson’s brief on appeal was originally due to be filed on 12 December 2013, but was not. On 17 January 2014, the other attorney filed a motion to withdraw, which was granted by the trial court on 21 January 2014. SCR-4-5. On the same day, the trial court also appointed Wilson’s attorney to represent Wilson on appeal. SCR-5.

Wilson filed a motion on 12 February 2014, requesting an extension of time to file his brief until Monday, 17 March 2014. The Court of Appeals granted the motion on 13 February 2014. Wilson filed a motion on 19 March 2014, requesting a second extension of time until Friday, 21 March 2014, and filed his brief on 20 March 2014, but after 5:00 p.m. The Court granted the second motion on 26 March 2014.

The State’s brief was originally due to be filed on 21 April 2014, but the State filed a motion on 25 April 2014 requesting an extension of time until 21 May 2014. The Court of Appeals granted the motion on 25 April 2014, and the State filed its brief on 21 May 2014.

On 8 December 2014, the Court of Appeals set Wilson’s appeal for submission on 28 January 2015. On 31 March 2015, the Court gave notice that the appeal would be decided by a new panel, only Justice Jennings remaining from the original. On 25 August, 2015, the Court issued its opinions.

58 days elapsed from the date Wilson’s attorney was appointed to represent Wilson on appeal to the date he filed Wilson’s brief. 62 days elapsed from the date Wilson’s brief was filed to the date the State filed its brief. 252 days elapsed from the date the State’s brief was filed to the original submission date set by the Court of Appeals. 458 days elapsed from the date the State’s brief was filed to the date the Court issued its opinions. An order by the Court to re-brief the issue of harm would not have caused any meaningful delay.

The State understood that Wilson was complaining that he had been harmed. In fact, in arguing that the evidence was admissible, the State all but acknowledged that that had been the point:

The complained of evidence in this case clearly made a fact of consequence more probable.

Brief of the State – p. 9.

Unquestionably, the trial court could have concluded that the extraneous offense provided at least a small nudge toward proving that the victim in the present case did not consent.

Brief of the State – p. 10.

The trial court could properly conclude that this evidence, despite differences in the circumstances surrounding the offenses, provided at least some evidence that the appellant engaged in nonconsensual intercourse with C.W.

Brief of the State – p. 12.

Wilson did adequately brief Issue No. 2 raised before the Court of Appeals. He cited appropriately to authority and to the record, and he argued that he was prejudiced by the admission of the evidence of an extraneous sexual assault. He noted that the evidence had not been admitted at his first trial, which ended in a hung jury. The Court erred in holding otherwise.

A criminal appeal is a valuable right, a very valuable right. That right includes the right to a decision on the merits. Wilson can not know what the decision of the Court of Appeals would have been had that Court not erroneously found that he had not argued that he was harmed by the admission of the evidence of an extraneous sexual assault. His case should be remanded to that Court to address Issue No. 2 on its merits.

PRAYER FOR RELIEF

Appellant Keith Ladale Wilson accordingly prays that the Court grant his petition for discretionary review, reverse the judgment of the Court of Appeals for the First District in No. 01-13-00917-CR, and remand the case to the Court of Appeals to address Issue No. 2 on its merits.

Respectfully submitted, Keith Ladale Wilson Petitioner

By: /s/ James F. Keegan James F. Keegan Texas bar No. 11155400 4421 Jim West Street Bellaire, Texas 77401 713-668-4797 713-668-4798-facsimile whynyet@sbcglobal.net Attorney for petitioner

CERTIFICATE OF COMPLIANCE

I hereby certify that the word count for this petition for discretionary review, exclusive of appendix A and appendix B, is 3885 words.

/s/ James F. Keegan James F. Keegan

CERTIFICATE OF SERVICE

A copy of this petition for discretionary review was electronically served upon Philip Anthony Grant, District Attorney pro tem, Polk County, Texas, DAInfo@mctx.org, and upon The State Prosecuting Attorney, information@spa.texas.gov on this the 1st day of December, 2015.

/s/ James F. Keegan James F. Keegan

APPENDIX A

APPENDIX B