Henry, Willie Iii

)

•.

To the Clerk of the Court of Criminal Apoeals: 8-25-15

Please find enclosed,,motion for leave to file nandaous, ceti-

tion for' '.!r it of ~1:3.ndar.,1s and "'!xhi b i ~:s . T? lease file T.Ti th t 'n.e court

and I also request that a copy of all exhibits be sent to the

Respondents. These' are my only copiss and ~ have no r..ray to m::>k,e,

cop~es of those doc~gents- I did send carbon copies of the rest.

Sincerely,

RECEIVED INl

~lOf CRIMINAL APPEALS

SEP 03 2015

This document contains so~e

pages that ar~ of p~or quality

®t the time of 1magmg.

IN THE COURT OF CRIMINAL APPEALS, TX.

IN RE 'WILLIE HENRY, III'

WILLIE HENRY, III §

RELATOR IN THE COURT OF CRIMINAL

§§ APPEALS OF TEXAS

vs.

§

252ND CRIMINAL DISTRICT COURT,§

JEFFERSON COUNTY, TEXAS;THE

STATE OF TEXAS, §

RESPONDENTS §

IN RE 'WILLIE HENRY, III'

MOTION FOR LEAVE TO FILE

TO THE SAID HONORABLE COURT;

Now comes Willie Henry, III, Relator files pro se, and ask

leave of court to file an original petition with the Court of

Criminal Appeals for a writ of mandamus, and would show the

Court the following;

I.

Jurisdiction

This Honorable Court has jurisdiction to review the order

and judgment from the 252nd District Court of Jefferson, coun

-ty, Texas under TX. Const. Art. V § V; TX. Govt. Code § 22.

221(b)(1). Mandamus is availbeto correct a trial court's

deprivation of Fundamental Constitutional Rights. A relator

who demonstrates that the order or judgment challenged is

void need not demonstrate that remedy by appeal is inadequate

Dunn v .. ligon,_430S.W .. 2d-704_ ".\.t.~. t__.C..~. ~ ~.03

II.

Extraordinary Case

This is an extraordinary case that requires the Court of

Criminal Appeals to exercise original jurisdiction because:

1. The deferred Adjudication order from cause no. 98575 is

1 of 4

void because the Relator was denied his right to trial by jury.fh

waiver was involuntarily and unintelligently given. Brady v. U.S.

39 7 U.S • 7lf 2 ~ ~ 2..Q_ S . CT . , llf 6 3 , 14 6 9 ~ _2 L .. Ed . ~ 7 47 ( T9i0T-

2.Relator was denied his Fundamental Right to Effective Assist-

ance of Counsel, where the trial court failed to inquire into

a conflict of interest which was before it.

3.Trial court abused its discretion when i~revoked probation

from a void order.

4.trial court abused its discnetion when it ruled without sup-

porting evidence. The plea nor the purported judicial confess~n

ion are valid due to IAC and ambiguity in plea agreement since

the vital SBI element was concealed from plea agreement.

III.

Ministerial Duty of Respondent

On the 1st day of October, 2007, The Honorable Judge Layne

Halker was the duly qualified and acting ju.dge of the 252nd Crim-

inal District Court of Jefferson County, TX. for cause no. 98575

styled, State of Texas v. Willie Henry,III, and entered an impro-

per and void order to wit:

1. On August 27,200~,the trial court received the plea agreement

with attached waivers and stipulations and ordered a PSI and

reset until Oct.1, 2007.In the report, it was made known that

there was a conflict of interest between defendant and his

\.

attorney. Triaililcounsel told dfendant that he could not have

representation in a jury trial without more money even though

defendant wanted jury trial. (R.R. v.5,p.14) (Relator's only

other copy of Psi was served previou~ly to parties and court)

Respondent had an independent duty to ensure a fair trial by

inquiring into the conflict of interest and a duty to protect the

defendant's right to trial by jury, but failed in that duty.

2.Respondent committed a fundamentally unfair act in accepting an

involuntary plea and inadmissible evidence of the judicial con-

fession, which was not intelligently entered, nor was it vol-

2 of 4

untarily given. Because the plea papers omit the essential el

-ement of serious bodily injury and that element was not con-

tained in the original indictment, the defendant was denied

actual notice of the accusations against him and the judicial

admission was mistakenly given since serious bodily injury

did not take place. The trier of fact could not have found

all of the essential elements to have been proven beyond a

reasonable doubt. V.T.C.A. § C.C.P.Art. 1.15; P.C.§2.01

3. Relator has been deprived of liberty without due process

of law which renders order and judgment void. _In re

- _Taylor, -130-S.W.3d-448;_U.S.C.A.1M,6;_Tx._Const._1§15

IV.

Petitioner has no Adequate Remedy by Appeal

1. My trial lawyer abandoned me immediately after the Oct.1

2007 sentencing. I addressed the issue in Habeas Corpus

in writ 73,015-01. (Do not have a copy) However, even

though my trial attorney states in his affidavit in the

proceeding that he had no further obligation to me, the

habeas court never addressed the issue and failed to grant

relief by out of time appeal. (This court has a copy of

that affidavit but I was not served one by attorney)

2.I have filed mandamus in the 9th Coa but argued wrong due

to the fact that I've had no actual assistance for a mean-

ingful review, which is supposed~ to be a Constitutional

Right, I've been barred from presenting another mandamus

to that COA. (09-13-00195-CR) May 8, 2013

3.Appeal lawyer after adjudication of guilt was ineffective

for raising IAC of trial counsel Only. -Issue is not a

claim that can be reviewed on direct appeal.(09-09-00029cr)

3 of ~

IT.

Motions and orders involved

The motions and orders involved are attached as exhibits

and are marked A through~~---and made a part hhereof.

VI.

Prayer

Wherefore premises considered,Petitioner prays that leave

to file this petition be granted, that the same be set for

submission, and that Writ of Mandamus be issued by the Court

ordering that the order and judgment in cause no. 98575 set

aside and to declare the order void. In the alternative I

ask this Court to reset the time table to file for out of

time appeal and motion for new trial.

Re~~ectfully Submitted,

\JJ ·&v, M.Q.N--e:::;--a - \7\o $.12_

Date <?:,- 0.\.r \S '·•.,

#1550834

810 Fm 2821

Huntsville, Texas77349

\\\0. _ _ _ __

\N\\\\e.. \~{"" I lit

\\.e..\CAtn\

..Js,

"!.t\ '\:Ytc. CJ) u r't 0 t triM\ ""c.\

~Sd. ~ C:.,~\ t"'\\ no\ tH6tr~<± ~u'"'h

~~feu. \h \ ~1.45bl (), \x;.

:Ie....~-fe.-r~f)f\. en ut\-bi \ \~, ·,

\h e_ ~tul:e_ Q~ \ ~~a.5:. I

~~Qo"-ae.n~

INDENTIT OF PARTIES AND COUNSEL

FOR THE_STATE

mR. PERRY THORAS

shot no. 19849120

Asst. Dist. Attny.

1001 pearl, 3rd Floor

Beaumont, Texas 77701

FOR THE-DEFENDANT;

Mr. _Aud~in_Samuel

shot no. OD791595

Attny. @ law

505 Milam, Suite 100

Beaumont, Texas 77701

RESPONDENT

252nd Criminal District Court

Jefferson County, Texas

Judge_Involved

Honorable Layne Walker

Resigned as Judge

TABLE_OF_CONTENTS

Indentity of Parties and Counsel at Trial p. i

Table of Contents p. i

Index of Authorities p.ii

Statement of Case, Jurisdiction p.i:il.:ll.

Request for Petition p. 1

Issues Presented, Statement of facts p.5

Arguments to Support Claims p.7

Summary p. 12

Prayer for Reli€f p t 1.3

Certification , Certificate of Service p. 14

Appendix

R.R. vols. 1, 2, 3,4, and 5

(do not have vol 6 which is ~lea papers but served on court

and District Attorney's Offlce in previoas filings)

Exhibits (deferred adjudication order, affidavits, case resetting

forms showing defendant not aware of reindictment)

L

INDEX OF AUTHORITIES

Cases Pages

Caldwell v. Thaler, 770 f. Supp 2d. 849 2

Diaz v. Martin, 718 F.2d 1372 11

Donovan v. St., 68 s.W. 3d 633, 637-38 11

Ex rel Bill hill v. COA 5th district, 34 S.W. 3d 924, 927 11

henderson v. Morgan,~ U.S.~' 96 S.CT., 2253 9

Hernandez v. ST., 127 S.H. 3d 768 8

Huynh v. ST., 833 S.\v. 2d 636 8

In re Taylor, 130 S.W. 3d 448 3

In re Vernor, 94 S.W. 3d 201 7

Michigan v. Jackson, 475 U.S. 633, 106 S.CT., 1404 11

Miller v. Champion, 161 F.3d 1249-50 12

Sanchez v. St., 543 S.W. 2d 132 10' 12

Sanchez v. St., 32 S.W. 3d 701 10

St. , v. Vasquez, 140 S. W. 3d 758-59 2' 11

U.S. v. Abernathy, 83 F. 3d 17, 19 9

U.S. v. Combs, 222 F.3d 353 8

U.S.c.A. _amends

5th, 6th, 14th

TX. _const.

1§10, 1~. 13, 1§15, 1§19

TX. _PenaL Code & C.C. P. 'f)·+·

1.05, 1.15, 2.03, 12.01, ~1Je,€+, 12.01{6), 12.05B, 11.07. 26.13

P.C. § 1.07(a)(46), 2.01, 22.02

TX Judicial Code of Conduct

Canon 2A, 3B(2), 3D(2)

Ll

STATEMENT OF THE CASE

This case is from the 252nd Criminal District Court, where

the Relator was granted 3 years deferred adjudication for the

offense of aggravated assault causing serious bodily injury to

Barbara Wherry-Dean. The court adjudicated guilt and sentenced

Relator to 18 years TD6J and he is serving that sentence in the

Wynne Unit, huntsville, TX.

Trial counsel abandonded relator after deferred adjudication

and failed to file motion for new trial during 30 days after the

deferred adjudication granted. After guilt was adjudicated, the

court appointed Doug Barlow for appeal but he too, failed to

file motion for new trial nor even speak or communicate with the

Relator after appointed. Relator's family hired Mr. hugh o'Fiel

after the 30 days passed to file motion for new trial and Mr.

O'Fiel, filed appeal in the 9th Coa, but on non reviewable issue

of ineffective assistance of counsel at trial and conviction was

affirmed instead of dismissed.

Relator filed habeas corpus under 11.07 but relief was denied

by courts. (Pro Se) Relator has also filed pro se for Mandamus

relief in the 9th COA but did not know how to describe the duty

which was ministerial and Mandamus was denied. Now he comes fil-

ing pro se in the CCA and does believe that he has now adequately

stated the ministerial duties of the court, and shows that the

order for deferred adjudication should be deemed void due to an

involuntary waiver to jury trial.

Jurisdiction

The Court of Criminal Appeals has jurisdiction over Criminal

Convictions iri Texas, granted by TX. Gov. Code § 22.221 and the

TX. Const. Art. V § V. ~·'·L·~· ~.~.~- ~ ~·03

NO.

IN THE COURT OF CRIMINAL APPEALS

IN RE WILLIE HENRY,III

WILLIE HENRY,III § IN THE COURT OF

RELATOR CRIMINAL APPEALS IN

vs. § AUSTIN, TEXAS

252ND CRIMINAL DISTRICT COURT, §

JEFFERSON COUNTY, STATE OF TX.

RESPONDENT §

IN RE 'WILLIE HENRY,III'

PETITION FOR WRIT OF MANDAMUS

To The Honorable Judges of Said Court:

Now comes Willie Henry, III, files pro se this application

for Writ of Mandamus and complaining of the 252nd criminal

district court of the state of Texas, jefferson County, respon-

dent, and would show the following:

I .

On the 1st day of October 2007, Honorable layne Walker was

the duly qualified and acting Judge of the 252nd Criminal Court

of Jefferson County, texas, and on said date in cause No. 98575

styled the State of Texas v. Willie Henry, III entered an impro-

per and void order to wit:

Respondent failed in its duty to protect defendant's Fundamen-

tal Constitutional rights to a fair and impartial trial by jury

and due process. He failed to properly admonish the Defendant of

his right to trial by jury, right to assistance of counsel at a

trial by jury, right against self-incrimination, and his right

to notice

The Reporter's record will show that at the time that the

Defendant's plea was entered, the trial court knew or should

have known that the Defendant's waiver to his Constitutional

Right of a trial by jury was involuntary and given unintelli-

gently due to counsel's refusal to allow Defendant to exer-

cise his Right to a trial by jury so that he could prove his

innocence. Although Respondent had evidence before him that

reasonably and fairly raised an issue of fact as to innocence

of the Defendant, of the offense of aggravated assault caus~

ing serious bodily injury~ and Respondent had a duty to with-

draw the nolo contendere plea on its own motion.

The Respondent's failure to perform its independent duty to

inquire into an obvious conflict of interest which was be-

fore the ,trial court resulted in the Defendant being ~mpelled

into a plea agreement and waivers of Federal and State Consti

-tutional Rights which he did not want to waive.

II.

Said order of Respondent was improper and void for the fol

-lowing reasons:

An involuntary waiver of the right to a jury trial renders

a judgment void. Caldwell.v .. Thaler 1 _770.F •. Supp •. 2d 1 849;

State.v •. Yasquez 1 _140.S.W .. 3d 1 .758~59

III.

The acts required of the Respondent are ministerial in

nature and are not subject to the discretion of the Respond-

ent. Namely: Protect Defendant's Fundamental Constitutional

Rights and properly admonish defendant to make sure that the

plea is really voluntarily and knowingly entered.Y.T.A.C.C.P.

art •. 26.13 The trial court must properly admonish defendant

concerning consequences of plea and must determine voluntari-

ness of the plea and such responsibility cannot be shifted to

counsel.Waivers also must be voluntary and given intelligent~

ly, to comply with due process. U.S.C.A. amnds. 6,14;Tx. Cons

-titution arts. 1 § 15; 1§19

Relator has been deprived of liberty without due process of ~

law ~hich renders order and judgment void. _in_re-Taylor 1 -130

S.W.-3d, _448;_u.s.c.A. amend._14

IV.

Petitioner has no right of appeal from the actions of the

Respondent and has no adequate remedy at law other than a

Writ of Mandamus as prayed for herein.

1. My trial lawyer abandoned me after the original deferred

adjudication sentence. I filed this as ground in 11.07(73

015-01) trial counsel's affidavit stated that he had no

obligation to me after deferred adjudication, which is

not correct according to art. 26.04, but the habeas court

failed to address the ground. in which case, had they

addressed it, I could have then filed a motion for new

trial and had a full and fair hearing.

2. I have filed mandamus in the Ninth court of Appeals but

argued Hrong because I've had no assistance at all, and

now that court says that I can't bring another petition.

(09-13-00195-CR) may 8, 2013

3. Appeal lawyer after adjudication of guilt was ineffective

for raising IAC at trial which could not be raised on an

appeal. He didn't raise these important issues, nor did he

at any time contact me or file a motion for new trial.

v.

The motions and orders involved are marked as Exhibits A thro

-ugh_ --~--- __ and are attached hereto and made a part hereof.

Wherefore premises considered, Petitioner prays that leave

to file this petition be granted, that the same be set for

3

submission, and that a Writ of Mandamus be issued by the Court

ordering and directing the Respondent to set aside order and

judgment of conviction, and declaring it as void and a nullity.

In the alternative I ask this Court to reset the time table

to file for out of time appeal and file motion for a new trial 0'

1rJillie Henry

- - - -~ = ~Lo ~\S- --

Date

#1550834

810 FM 2821

Huntsville, TX. 773~q

ISSUES PRESENTED

The Trial court neglected its duty pursuant to TX. C.C.p. art.

2.03~b); art. 1.05, to ensure a fair trial and protect the

Fundamental Rights of the accused even after a conflict of

interest was brought to the court's attention in the PSI.

Relator brought to the attention of the court that he was

now indigent Oat the stage of jury trial.) and that counsel

refused to allow him to go to trial by jury if he didn't

come up with more money. 1Reporter's Record V. 5, P.14)

That neglect of duty caused the following:

1. An involuntary waiver to trial by jury tvoids order)

2. Deprivation of Fundamental Right to Counsel

3. Acceptance of an involuntary nolo plea to an offense

which the vital element of serious bodily injury was

concealed from him in the plea papers and was added to

the indictment after the plea papers were already signed,

depriving Relator of his Fundamental Due Process Right

to ..,~-true and adequate notice of accusations.

4. Admittance into evidence, an inadmissible judicial con-

fession which was given by mistake. It omitted the

~ssential element necessary for conviction.

~Does not support finding of guilt. C.C.P. art. 1.15)

5. Violations of the Tx. Const. Arts. 1§15; 1§10;1§3;1§19;

U.S.C.A. Amends. 5, 6,14

STATEMENT OF FACTS

In the July term of 2005, the grand jury indicted Willie

Henry, III, for the offense of sexual assault (P.C. § 22.011(E)

and Mr. Audwin Samuel was retained as defense counsel, given a

list of defense witnesses and contact information which he nev~

er attempted to contact. According to the records of the clerk,

a re-indictment was issued in September, 20DG, but Henry was

not informed. (Exhibit f\-'b,q) In August 2007, when getting to

the courthouse Mr. Samuelinforms his client that they are set

to pick a jury the next morning of August 28, 2007. Then he

informs Henry that if he can't come up with another $3,500.00

5

if he wants a jury trial, then he will have to agree to a plea

deal for the lesser-included offense. After making phone calls to

try to raise the money but failing, he was told he has no choice

but to sign a plea deal. Henry asked his attorney to try to get

the trial reset so he could come up ~ith the money and Mr. Samuel

told him that he would go ask but that henry could not come in

the courtroom with him. A few moments later, counsel returned but

told him that the Judge refused to reset.

Henry was told by his attorney to not say anything to the Judg

but only answer what the Judge asks, or this Judge will just

sentence you to the max of 20 years. Therefore, Henry tells the

interviewer during the PSI what had taken place between his attar

-ney and himself. (Ran out of mon,y but wanted a jury trial and

that he was innocent of charges) R.R. v. 5,p.14 and PSI

The case was reset for sentencing on Oct. 1,2007 and the court

accepted the plea agreement and sentenced him to 3 years deferred

adjudication without inquiring about voluntariness of waivers or

into conflict of interest. (Exhibit ) R.R. v.3

In 2009 , on January 12th, probation was revoked and guilt

adjudicated and defendant sentenced to 18 years TDCJ- Institu-

tional Division. R.R. v. 5,p. 17

Aurguments to Support Claim

The Respomdent on October 1,2007, issued an order for a

deferred adjudication pursuant to a plea bargain agreement

which contained involuntary waiver to a trial by jury. The

trial court knew or should have known that the waiver to a

trial by jury was given involuntarily by the defendant.

See: Exhibit-~,Q__~\(._5,'·~1nd PSI which this court has a copy.

The trial cou~t had a mandatory duty to inquire into a

conflict of interest but did not. Due to this failure to per~

form its mandatory duty, the defendant was forced to forego

his right to a jury trial, which is a Fundamental Right under

Due Process. This Honorable Court has the power under the

TX. Constitution Art. V.§V to issue mandamus to correct the

trial court's deprivation of fundamental constitutional right

In_re_Vernor,-94-S.W. 3d,_201

Although the trial court knew, as is evidenced by the repor

-ter's transcript in Vol. 5, P. 14, that the only reason that

defendant entered the plea and bargain agreement was because

he became indigent at the point and stage of trial by jury.

Mr. Samuel refused to allow a jury trial if he wasn't giVen

more money immediately. He (Mr. Samuel) did not tell defen-

dant that he had other options, such as asking the court to

appoint counsel for a jury trial. Had defendant been inform~

ed of that right, instead of being told that he had no choice

if he didn't have the additional money, defendant would not

have waived his right to trial by jury. This is an obvious

conflict of interest that the Respondents knew about.

"While guaranteeing defendant's right to attorneys of their

choosing, Sixth Amendment also entitles defendants to rep-

resentation by an attorney unfettered by any conflict of inte

-rest .... Even when a defendant is willing to waive a conflict

of interest, acourt_has.an_independent.duty.to.balance_the_,·

right_to_counsel.of.choice.with_the.broader_interests_of_judf

~cial_integrity,.and.is.required.to_take __ action.to.protect

defendant!s_Sixth.Amendment.right.to_effective.assistance of.

counsel, unless after inquiry, the court believes that a con-

flict of interest is unlikely to arise.

U.S. v._Combs,.222.F.3d,-353

In this present case before the court, the defendant did

not want to waive the conflict of interest, but rather, was

told he had no choice. he thought that's the way the law

works, therefore he brought it up in the PSI hoping the court

would do something about it. Now he has found out that that

was a choice to be made by himself and not dictated by trial

Not only did Mr. Samu~l disallow the defendant the right

to a jury trial but he also gave mis-information which made

the waiver involuntary and unintelligently given.

1. Mr. Samuel told defendant that the offense of aggravated

assault was the lesser-included offense of sexual assault.

that information was incorrect. The State actually asked

that the original indictment be amended after the plea

agreement was already signed. That amendment substantially

charged another offense other than the grand jury charge.

When a charge has been substantially amended from the

charges contained in the original indictment, and the

statute of limitations has expired, then it is barred.

Hernandez_v._ST.,.127-S.W.-3d 1 .768;_V.T.A.C.C.P._art._12 ..

. 01; .12.05B In this case, aggravated assault had a 3 year

limitation, art.12.01(6). The indictment alleges offense in

May 2000, but the date of amendment is August, 27, 2007.

Had that been revealed at_the time then defendant would not

have entered the plea deal or plea.

2. The plea agreement did not contain the vital element of

serious bodily injury. (Did not occur). By the State

failing to disclose _that necessarry elment and chose to

rather conceal it, defendant was denied true notice of

the allegations against him. By not informing of the ele-

ment before the plea hearing, defendant was prejudiced by

being denied his opportunity to present a defense and to

make the State prove Serious Bodily injury, which it could

not have proven since it didn't transpire nor was it com-

plained of by the alleged victim. the State acted arbitra-

rily and unreasonably by waiting until after the agreement

was signed to then add an element to the charging instru-

ment without any warning whatsoever . . U.S •. v._Abernathy,

83_F.3d.17,19.(1996);_Henderson_v .. Morgan,_ ... U.S •. _ .. ,_96

s._CT •. 2253 The defendant in this present case did not have

a true understanding of the nature of the accusations against

him because nobody explained to him that serious bodily inj-

ury means''·· .injury that creates a ~ubstantial risk of death

or that causes death, serious permanent disfigurement, or

protracted loss or impairment of the function of any bodily

member or organ. V.T.C.A. Penal Code §1.07(a)(46).None of

these things happened but without this court ordering an

evidentiary hearing the only thing which can be shown is the

elements of SBI were not entered into evidence. The alleg-

ed judicial confession omits the SBI element. A judicial

admission that omits an element is not sufficient and a

judicial admission must be clear and unequivocal, contained

in the live pleading and not given by mistake. It is clear

that the defendant was not aware of the SBI element before

the plea hearing since it was not contained in the original

'live pleading' nor was it brought to his attention in the

plea papers. The judicial confession is invalid to support

the conviction.

3. The trial court had a duty to withdraw the nolo plea on

its own motion because there is nothing at all entered

into evidence to prove the alleged victim suffered any

serious bodily injury. C.C.P.art. 1.15; Sanchez v. St.,32

S.W. 3d, 701; Sanchez v. St., 543 S.W. 2d, 132

4. Had the trial court just did its job and admonished the

the defendant all of this could and would have been avoid~

ed because d~fendant would have elected to go to trial by

jury. He was not aware that entering the plea bargain

waived his right to make the State prove the allegations.

It was his understanding that the judge would look at the

evidence in a fair manner and that the State had to offer

proof beyond a reasonable doubt. It would have been impos-

sible for the State to prove SBI. It is against all the

principles of justice to hold a person knowing that he was

forced to admit to something that did not transpire. When

the plea, waivers, and plea agreement were not knowingly,

l>

voluntarily, and intelligently entered a-nd- are inadmissible.

as evidence and violates due process.

\D

5. The waivers in this case were signed without a recommend-

ed punishment to be imposed if guilt was adjudicated and

are not voluntarily entered. Had trial counsel not aban-

doned his client after the deferred adjudication order the

defendant would have elected (if properly informed) to

file a motion to adjudicate guilt and file motion for a

new trial within 30 days. Because trial counsel abandoned

defendant, as attested to in his affidavit (73,015-01) he

has been denied any meaningful review on appeal and denied

counsel during the time to file a motion for a new trial.

6. The Respondent was prohibited from accepting the nolo plea

which it knew or should have knor.rn was involuntary.(£..)(. \f.5 P-\4)

"the Constitution forbids acceptance of a guilty(nolo)

plea to a criminal offense unless that plea is entered

both voluntarily and knowingly." Diaz v. Martin, 718 F.

2d, 1372 (5th cir)

7. Relator believes he has shown that the waiver(s) were not

voluntary nor intelligent. Where that is the case, the

Courts of appeals have stated that the judgment is renderea

void. State v. Vasquez, 140 S.w.3d, 758,59; Michigan v.

Jackson, 475 U.S. 633, 106 S. CT. 1404; U.S.C.A. amend. 6;

Tx. Const. art. 1 § 15 Vacating a void order is a minister

-ial duty. Ex rel Bill~Hill v. COA 5th district, 34 S.W.3d

924, 927 Relator believes he is entitled to vacation of

order and entitled to remand to the trial court to answer

original indictment.

\\

SUMMARY

the trial court shifted its responsibility to ensure a fair

trial entirely to counsel, (R.R. v.2,p2)asking if counsel explain

-ed the admonishments which were not signed in open court; but

fails to admonish and ensure that defendant understood his right

to jury trial if desired, right against self-incrimination~which

there was no explicit waiver contained in plea papers), and chose

not to inquire if the plea was truly given because defendant was

in fact guilty.

Once the trial court received the PSI it should have withdrawn

the plea on its own motion. Sancbez ~St.~ 5~3 S.W. 2d, 132

then the trial court was obligated to conduct inquiry into what

it should have reasonably inferred may have been a conflict of

interest after reading in the report that defendant denied commit

-ing the offense but ran out of money to pay counsel for repre-

sentation for a jury trial. When the defendant was asked if he

entered his plea on his own free choice, (R.R. v.2,p.2), that

answer was based upon misinformation relayed to him by his att-

orney and the failure to apprise him of the SBI element namely:

1.that he had to have more mon~y to exercise the right to jury

trial.

2.That the nolo plea was not in any way admitting guilt

3.That the plea deal charged him with alesser-included offense

of sexual assault as alleged in the grand jury indictment in

cause no.86400(never told he was reindicted on(98575~

4.The failure to apprise defendant of the SBI element from or by

any source pr~or to the plea hearing. Miller v_ Champion~ 161

F.3d 12~9~50

Relator contends that after receiving and reviewing the PSI,

any reasonable trier of fact would necessarily have a question

as to the voluntariliness of the constitutionally waived rights

\~

and the actuai voluntariliness of the plea, which would warrant a

further inquiry by the Respondent. C.C.P. arts§ 1.05, 2.03; TX.

Code of Judicial Conduct Canon 2A, 3B(2) ,3D~2); U.S.C.A. 6, 14

Because the purported judicial admission omits the SBI element

and that element was not included in the grand jury's original in

-dictment, which was the 'live pleading' at the time that the

admission was signed, the Respondent could not have found the

d~fendant guilty of committing every essential element of p.C §

22.02 aggravated assault with SBi beyond a reasonable doubt. P.C.

§ 2.01; U.S.c.A. amend. 14; C.C.P. art.§ 1.15 the trial court

had no factual basis for the acceptance of the plea. fffiire is

nothing in the record to support a finding of SBI as defined in

TX. P.c. § 1.07 (a)(46). As a crucial matter of fact, if this

Honorable Court will order the Suate to turn over the complaint

of the alleged victim, mrs. Barbara Wherry-dean, it ~ill find

that no such claim of SBI was made under oath, and will show

Prosecutorial misconduct by Mr. Perry Thomas by charging the

defendant with an offense that he knew was not supported by

probable cause or by oath from complainant.

PRAYER

WHEREFORE PREmiSIS CONSIDERED, ~ETITIONER PRAYS THAT LEAVE TO

FitE BE GRANTED, THAT THE SAME IS SET FOR SUBMISSION, AND THAT A

~RIT OF MANDAMBS BE ISSUED BY THE COURT ORDERING AND DIRECTING

THE ORDER AND JUDGMENT BE SET ASIDE AND DECLARED A NULLITY. 6R TO

RESET THE TIME TABLE TO FILE FOR OUT OF TIME APPEAL AND MOTION

FOR NEW TRIA)_,.

-\))~Ju__ Mn~-

SIGNATURE 1'ro SR__,

-%~- a\Q ~ _\S_ -

DATE

\3

Certification under r.App. oro. 52.3

I Willie Henry, III, do ce~tify that I have read the oetition

9nd certify under the penalty of perjury that all factu9l state-

cents are supported by competent evidence in the appendix or in

the record.

Certificate of Service

I i)illie Henry, III, do certify that on this the_ . d\u~ day of

August, 2015 9 true and correct copy of the above and foregoing

Motion for leave to file and petition with copy of the unsworn

decl~rabion was .s~rved on the District Attorney's office, Jeff~r­

son County, 1001 Pearl St., Beaumont, Tx., by u.S. Postal mail.

_\0&9;~&~-

'Jillie Henry

Pro Se

INMATE_AEFIDAVIT_OF_UNSWOBN_DECLARATION

My name is Willie Henry, III, and I am over the age of 18 years

of age and I am competent to give the following statements. I am

currently incarcerated at the Wynne Unit Pr&son, Huntsville, TX.

My TDC # is 1550834. I am being held illegally.

In September around the 1st, I retained Mr. Audwin Samuel to

represent me in cause no. 86400 from Jefferson County, Texas, in

the 252nd district court.

1. I told my attorney that I was not guilty when he discussed the

indictment in cause no. 86400.

2. I told him that I wanted a trial by jury and he gave me a fee

of $1,500.00, and later went up to $1,900.00. 1

3. I was never told about the reindictment under 98575. See the

exhibits attached to 'the affidavit as proof that I never saw

nor signed any of the resetting sheets and that as late as May

2007, in his motion to withdraw, he was still using 86400 no.

which the clerk of the court had to correct.

4. Afirer. the motion to withdraw was filed ( Hhich he didn't send

me a copy until the weekend before the hearing; he decided

not to *ithdraw because I gave him what he said I owed him.

5. On the scheduled date of trial, he told me 'that I had to

pay him another $3,500.00 immediately or I could not have

a trial by jury as I requested. But I was told that I coilild

not say anything to the judge about it. So, I told the PSI

interviewer.

6. I asked about bringing witnesses in my favor but was told

the judge is not going to allow me any witnesses.

7. I was told that aggravated assault was the lesser-included

offense of sexual assault under P.C. § 22.011(E)

8. No one nor anything apprised me of the serious bodily ~lement

of aggravated assaul-t. Had I knovm and was given a choice I

would not have agreed to enter the agreement or plea.

9. I was never warned about my right to not give evidence against

myself.

10. ~vhenI signed the form stating that I was or had, commit ted

every element alleged in the charging instrument, that did

not include, nor was it meant to include serious bodily injury,

because the only indictment ever discussed with me was the in-

dictment that was labeled as count II. (attached to this affida-

vit/unsworn declaration)

11. The courtroom was locked and closed to anyone entering ex-

cept my attorney, myself, reporter for court, and district

attorney. it was not a public trial at all.

12. I did not understand that I did not have to wa~ve my consti-

tutional rights just because I became indigent. I never wishe

to do so at all but was tolfi I had no choice without money.

Every statement contained herein is trua and correct and given

by my personal knowledge. I have read the petition and certify

that all factual statements are supported by competent evidence

in the appendix or record. I declare under the penalty of perjury

that the statement~ are true and signed by me this-the 25th day

of August, 2015.

(,;.,

COUNT II

THE GRAND JURORS for the County of Jefferson, State

aforesaid, duly .organized as such at the July Term, A. D.,

2005, of the Criminal District Court of Jefferson County, in

said County and State, upon oath in said Court present that

WILLIE HENRY, III, hereafter styled the Defendant, on or about

the 1st day of May, Two Thousand, and anterior to the

presentment of this indictment, in the County of Jefferson and

State of Texas, did then and there sexually assault BARBARA

WHERRY DEAN, hereafter styled the Complainant, by

intentionally and knowingly causing the penetration of the

female sexual organ of the Complainant by inserting his sexual

organ, and the Defendant was a clergyman who caused the

Complainant to submit and participate by exploiting the

Complainant's emotional dependency on the clergyman in the

clergyman's professional character as spiritual advisor,

AGAINST THE PEACE AND DIGNITY OF THE STATE.

qgsr:;

N0.86486

·STATE OF TEXAS § IN TleSTRICTCOURT

§

vs. § OF

§

WILLIE HENRY Ill § JEFFERSON COUNTY, TEXAS

MOTION TO WITHDRAW AS:COUNSEL

TO THE HONORABLE JUDGE OF SAID COURT:

Audwin M. Samuel, Movant, brings this Motion to Withdraw as Counsel and in support

thereof shows:

1. Movant is attorney of record for WILLIE HENRY Ill, and was employed to represent

Defendant.

2. Reasons to withdraw include: a. the client has not completed his contractual

obligation in this matter.

3. This withdraw is not sought only for delay, but that Defendant may retain counsel of

his choice and may justice be served.

4. The last known address of WILLIE HENRY Ill, 6000 Faye Circle, The Colony, TX

75056.

5. A copy of this motion has been hand delivered to Defendant, who was thereby

notified in writing of his right to object to this motion.

6. The pending settings in this case is August 27, 2007 for Trial.

7. Movant prays that the Court enter an order permitting Movant to withdraw as attorney

of record for WILLIE HENRY Ill

Respectfully submitted,

·

.. ~ .._·_ ·:.

The Law Office of

····-

Audwin M. Samuel & Associates

c·::7': 505 Milam, Suite 100

LLJ ~--~- c·~- - Beaumont, TX 777 1

~< ~::

L'-- - .. . !":-.: (409) 8 -4111 l

.· -· ;~:~:~

·- ··<

f- ..

. ~J

~..... ~. ',•... -.. .....

By:-:tt::l'Ul!!!!.~v:-J~~b--------

-Lt.- ':) '\

DW

.· ~ Audwin M muel

State Bar No. 00791595

fel_wtdr.mtn 10

I agree with this Motion an~ do not oppose Audwin M. Samuel's withdrawal as attorney of

record in this case.

by:

WILLIE HENRY Ill

NOTICE TO CLIENT

This is to notify you that this Motion for Withdrawal of Counsel is set for hearing at the

time and place stated herein. You do not have to agree to this motion and if you contest the

withdrawal of Audwin M. Samuel as attorney in this cause, you should appear at the hearing. If

you do not oppose Audwin M. Samuel's withdrawal as attorney of record in this case, you may

appear in court and inform the judge that you agree with this Motion. Included above is a list of

the pending settings and deadlines in your case, which you will have to keep even if the motion

is granted by the co1 !rt.

BY~~~

· A in M. Samuel L

STATE BAR NUMBER: 00791595

NOTICE OF HEARING

The above motion is set for jury trial on. _ _ _ _ _ _ _ at _ _ , in the courtroom of

the _ _ _ _ _ _ _ _ _ _ _ Court, 1001 Pearl Street, Beaumont, Texas.

Signed on _ _ _ __

Judge or Clerk

fel_wtdr.mtn 11 2

CERTIFICATE OF SERVICE

This is to certify that on May 1f, 2007 a true and correct copy of the above and

foregoing document was served on the District Attorney's Office, Jefferson County, 1001 Pearl

Street, Beaumont, Texas, by hand delivery.

fel_wtdr.mtn 12 3

STATE OF TEXAS § IN THE 252ND DISTRICT COURT

§

vs. § OF

§

WILLIE HENRY Ill § JEFFERSON COUNTY, TEXAS

ORDER ON MOTION TO WITHDRAW AS COUNCIL

On _ _ _ _ _ , 2007, the Court heard defendant's motion to withdraw and it is

THEREFORE ( ) GRANTED/ ( ) DENIED~

Signed O n - - - - - - - -

Judge Presiding

13

fel_wtdr.mtn 4

~

Jun~22-07 04:11P Law ~-f of Audwin Samuel 409 ~38 2220 P.Ol

The Law Office oj'

.Audwin M. Sa1nuel &. Associates

505 Milam APenuc

Reaumont, Texas 77701

(409) 8.1.'1-4111

Fctx: (409) 838-2220

FAX TRANSMISSION COVER SHEET

Date: June 22, 2007

1 at

cEIL ED

~ o'clock f'

To: 2S2"' District Court M

Fax: 409-835-8656 JUN 2 2 2007

LOLITA. RAMos

Rc: Cause No. 985 75 STR/ T COURT OF JEFFERSON CO., TEXAS

BY

DEPUTY

From: Audwin Samuel

j -·--,

YOU S'HOULD .RECEIVE 1 . PAGE(S), INCLUDING THIS

COVI:.'R SHHFT. IF YOU DO .NOT RECEIVE ALL TI IL' PAGE),

PLJ!ASH CAIJ, (409) 833-411 I

This is to give notice that. I am passing on the hearin.g. that is set for 6-''.5-

Q.? and that I no longer wish to withdraw front the ~bove mentioned

cause. Thank you.

The infonnation contained on the following pagc(s) is CONFIDENTIAl,

and intended only for the individual named above. Any other use,

dissemination, or copying of this communication is strictly prohibited and

is a tortuous interference with our confid~ntial business relationships. If

this document was crroncouslv sent to vou please notify us immedi:H.dy

~ " -

at the phone m.nnber listed below and then destroy this docurnent.

Thank you. ( 409) 833-4 J l J

ORIGINAL WILL _ _ I WILL NOT X BE M.AILEJ).

1U

t{252ND c )CRIMINAL ( )DRUG 3 .~ 'RUG • 0~,, \\.)"'

: ., ~~ DISTRICT COURT OF tiEFPEfiiON COUNTY, TEXAS

No(sLgj 51[ __. ---·--·--- ~late vs1J J{L L_& flj-Jll=-

Date:___ 9:L~--

( ) Designation of Attorney

( ).Arraignment/Announcement Diiiiidinl ________________ --------

( ) Hearing of Pre-Trial Motions

( ) Plea or Disposi1ion

'fury lllat/ Court trial

( ) Probation Revocation Hearing/Plea

( } Probation Revocation Announcement

P"rtftiNima-------·- --------------

( ) Post Conviction Motions

( ) Sentenctng

( ) Bond Proceedings

( } Habeas Co~p~.~t.

( ) . __l_t3

..-101-Jtor---:"'(1) (2) (3)

~Pr~o- ---

-------------------·-- __ ___________ ...., . ......,.. ___ __

._...________________________ _

---------------------· --. ------.. -------------------------------------------

NODCE Of RQmJNQ

THIS CASE I& RESET UNTIL . ~ J.f2__20Qtaliil ~.1

~· 0

. AM M

_( ) not reached/continued from Trial Docket

::::;_____._JI~/!J~([j_~fJ!J!:!if_l!_([r!l __ ~&_'f_Q2~---

-----:-----·------·- · · · . ---· -·-··=r-----q+---------------·-----------

-----·-------·-·····~·- ·····-· ·-· ····-····-··j___.____lJ_t___..:___________··----··-----

-----·---·-·-·--·-····--· -· -·· ...... _____ . ___________ ...._ _________________ ------------- .

7

Court Offtclal

~ f?ll\ 'f-tz5ZND , ,CRIMINAL 1 JOIIUG ~ 1 )Dh"G •

. DISTRICT COURT OF JIIIPIRION COUNTY, TEXAS

No(sL __ q~S_-£_________ lttale .,•. ___L!_i_l,k__ ~~

Date: Q-(0-Q::,

----·-------· ·-·----

_ ( ) Designation of Attorney

( ) ArraignmenvAnnou~ment oeiif*'l_________________ ---·----

( ) Hearing of Pre-Trial Motions

·(,r.'• Disposition

.Jr:f...Jury trial/ Court trial

( ) Probation Revocation Hearing/Plea

( ) Probation Revocation Announcement Piift't-Nime _________ ----------:----

( ) Post Conviction ·Motions

( ) Sentenctng

( ) Bond Proceedings

t j Habeaa ColpUt

i )

.. --Pr~O-IItci~D--:-(1-:-)~(2~)-:::(3::-)

tiL

---------------------- -~-------------.- ____ __. __ ____________________________

.

-------------·-·-----·-····-------~--------.- ...------.-.-..----------------·-------

Ncmq Of B"'!T!W!

rHIS CASE IS RESET UNTIL ~- __l__:i__mo] 0 ~J

) not reached/continued from

::nJRT JCTES:

9-\ ~ ~Trial Docket - AM M

---·------ ... ···-·-- ----··-- . ·~-----··--···---···- ..----.. ·----------------------------------···

-~ ·----- --- ------·· ····-··- ··--- _____ ___________ .......,

.., ______________ ____ _ .-,

------------·--···. ·---·-·---·-·····-···-··----·-------........-----------··---------

-------------· _.. . . · ---·--------p:=-------------------. .J ·- 8

~52ND ( )CRIMINAL ( )DRUG 3 ( )DRUG •

OfSTRJCT COURT OF JEI'P!RIOH COUNTY,· TEQ.S

No(sL __ CJt~5J?_______

Date: -c' ~·\~-0]

-----~-------------

( ) Designation of Anorney

( ) ArraignmenVAnnouncement

-----------------------·--------

DefecldMt

( } Hearing of Pre-Trial Motions

or Disposi11on

~ury triaL! Court trial

( ) robalion Revocation Hearing/Plea

( ) Probation Revocation Announcement

( } Post Conviction Motions

( ) Sentencing

{ ) Bond Proceedings

( ) Habeas Corput

( )

ProHcenor (1) (2) (3)

-------------~---------------------~-------.;__

--------------·-----· ~-- ....

_________________________

______________________ ____________________

.,;.... ________ _;..

NODCi Qf BQI'IIWA

THIS CASE IS RESET

----·------- . -...:__ ---· ------------------------------···

------·--··--···------------ ..

--------- ------· ····· ··- ---- -·---------------------·--------~_..;,------

.------------·-- ···-·-- ---···- -- ·-·- ·-·-·-- ---·----------~--------------·----

----------·--·-·---· -· -··-· ··-·-·--··------------------------ ------------- 9.

~

\><'\ )fJ252ND ( )CRIMINAL ( ')DRUG ~ ( )DRUG •

DISTRICT COURT OF JEPPIAION COUNTY, TEXAS

NoCsL _ _ q~S Q_ _____ $1ale va.~±\.o:nT

Date: ___ k_~1~'2____ ·

( ) Deslgnauon of Anorney

( ) ArralgnmenVAnnouncement

---------------· ---------·----

~ Hearing of Pre-Trial Molions Daflndlnl

( } Plea or Disposition

( ) Jury triaL' Court trial

( ) Probation Revocation Hearing/Plea

( ) Probation Revocation Announcement PrintN&me ___________________

( ) Post Conviction Motions

( ) Sentenctng

{ ) Bond Proceedings

( ) Habeas ColpUt.

( ) ~__L[-1:_

PfOIIQftor (1) (2) (3)

------------------ . -----------------------------------------------------

--------------·-----· . __ ... _______________________ ________________________

.:__...

NQDCE Of BJUDlHQ

THIS CASE IS RESET UNTll ~ \CQ

~ ) not reached/continued from - - - - - - - Trial Docket

10QioJj.'fJ .

COURT rct'ES;

========~=======~::=rn~~~~~~======-. ~==

.-----------·----·---·-· · - . .-·-·- - -e

~~-- ~ .

-to~d~:o~-------

---------·--·-·---·--··-- _______.___lc_~------~------ ------------- 14

~

( )252ND ( )CRIMINAL ( )DRUG 3 ( )DRUG •

DISTRICT COURT OF JEFPEAIOH COUNTY, TEXAS

No(s) ·

.

q<6SIS

--------------·-----

Date: ______tQ..:.

/: -Jf3-0l

___ ·-··-----

( ) Designation of Anorney

( ) ArraignmenVAnnouncement ·

I) Hearing of Pre-Trial Motions ·jY\--r--J

~')JPlea or Disposi1ion .

( ) Jury triaV Court trial

( ) Probation Revocation Hearing/Plea

( ) Probation Revocation Announcement

Print N&ml ________ -~-----------

( ) Post Conviction Motions

( ) Sentencing

{ ) Bond Prooeedlngs

( ) Habeas Corput.

( )

-------4~~-

PI'olec&ftor (1) (2} (3)

______________________________________________________ ______________ _ _:_

--------------·-----·~--------------------------..:...----------------------------

NOTICE Qf fliii'IDHQ

THIS CASE IS RESET UNTIL ~· as 10§/ ~\3:)

( ) not reachedlcontinueo from -~G~--,!...l'6-=----o-=)J~- Trial Ooc;ket

COURT NOTES;

----·------------ ---- ------·---·--···...:. ____________ ~------------------------------···

--------- ------- . - ·- ----- -·---------------------- ------------

.-------------·- ··--·-- -~-·-·· -·- ·-- ·-·---- ---------------------------------

---------·--· -·--·-· -· ---- . -· ---·--------------------------- ------------- .

15

Court OCficial

' .

.. . \' \ .. ·

-':

~52ND ( )CRIMINAL ( )DRUG ~ ( )DRUG 4

OJSTRJCT COURT OF JEFF!AIOH COUNTV, TEXAS

No{s}_ __ qC6 5]_2_________ aaate va.

Date :__ £L:)l:Q]___ _

· ( ) Designation of Attorney

·....

( ) ArraignmenVAnnouncement

( } Hearing of Pre-Trial Motions

( ) Plea or Disposition

( ) Jury triaV Court trial

( ) Probation Revocation Hearing/Plea· .

( ') Prooatlon Revocation Announcement

( } Post Conviction Motions

·'Jfoentenclllg

i {Bond Proceedings

/( ·} Habeas Corput

! ( ) ______

-----,..

~(1)(2} (3)

-------------·-·----~-----------------------~----·-------:--------------

--------------·-----·~--------------------------..:....-------------------------

NQDCE Of BIIIJIWQ

TI'IIS CASE IS RESET UNTIL { ) t +{ .•;.l

( ) not reached/continued from Trial Docket

:::::____ ---- ---- ________________________ltla__C · _11// 7SO· 0 e

--------- ------~ . -··- ---- -·-~------------- -----------------2 f/'f} .

___ --·--

-~-----.:........ ---· ... -·- -~---- ---------------·-----. __ __________ _

-· -·-- ·-·- ;_

18

--------·--------· -· --·-·- -·-·-· --··------------------------- ------------- .

Court Olfic!ai

. .cb . ~-.

Li.~-,'6,~ ~

\ b\

.. 0

252ND DISTRICT C01JRT OF JEFFERSON COUNTY, TEXAS

No: 98575 State of Texas vs. HENRY, Willie Ill

Date: /0 -(-0 7 Offense:

AGGRAVATED ASSAULT

DEFERRED ADJUDICATION ORDER

TERM: THREE {3) Years

In the b~st interests of so?iety. and the defendant, after hearing evidence, the Court finds that it

substantiates the defendants gwlt; defers further proceedings without enterina an adjudication of guiit

for the te.rm ...shown. ~bove; and places the defendant under the 5 ~1 pervision '"'of the Jefferson County

Com~umty SuperviSion and corrections Department (JCCSCD), s·ubiect to your obeying the fol'ow1·ng

conditions: · · •

1. Commit no offense against the laws of thi~~ State or of any ot11er state or of the United

States. ·

2. Avoid injurious or vicious habits.

3. Do not associate with any ~isreputable person or be present at any location where a

criminal act is being committed.

4. Report as directed by your' Community Supervision Officer and obey all rules and

regulations of the JCCSCD. .

5. Permit your Community Supervision Officer to visit you at home or elsewhere without

restriction.

6. Work faithfully at suitable employment, attend educational programs, and/or perform

Community Service Restitution for a total of not less than forty (40) hours weekly and

provide verification of such. '

7. Do not leave Jefferson County without the permission of your Community Supervision

Officer.

8. Properly support all of your dependents.

9. Immediately report to your Community StJpervision Officer any ·Change of address,

employment, or marital status; any arrest; and the source and amount of all income.

10. Do not use or possess any drug, except under the order of your doctor.

11. Do not become intoxicated or be under the ir.fluence of any intoxicating substance.

1.2. Attend rehabilitation, treatment, residential programs, and counseling as directed by your

Community Supervision Officer, pay for s.aid treatments as directed, and provide verification

of such.

13. Do not enter any bar, tavern, lounge, or sirr:ilar place.

14. Perform 800 hours of Community Service Restitution (CSR), a minimum of fifty percent

(50%) to be served within the first year of receiving community service, to be served at a

location t.o be determined later by the Court and the supervising jurisdiction. .

15. Be inside your home every day between 10:00 P.M,.and 6:00A.M., except for employment

purposes. ·

16. Abstain from the use of all intoxicating substances, including alcohol, in any form and at all

times.

17. Submit to alcohol and/or prug screening at the direction of the Jefferson County Community

Supervision and Corrections Department (JCC~iCD) or supervising jurisdiction.

18. Have no contact with the vlctim(s), either in person, by telephone, via mail, electronic

mailing, or through a third party: Barbara Wherry and Aqua Wherry .

23

.. -.{

19.

Submit to a Sex Offender ~ssessme~t.and pay the requirecffee($3"50.00):, as direbted'b .

J~1ffebrs?n Coun~y Commun1ty Superv1s1on and Corrections Department (JCCSCb)· ' which

WII e Included 1n the defendant's monthly installment.

20.

Transfer this case to Denton County, Texas for courtesy supervision. .The defehdant. is

ordered to obey all rules ~nd .regulations of the supervision jurisdiction.

21. Pay the amounts shown tn th1s order in the manner set out in this order.

You are hereby ordered to pay the following amounts:

Fine $ 750.00

Supervision Fees $ 60.00 /mo.

Court Cost $ 200.00

PSI Fee $ 350.00 Attorney Fee $ .;().

Crime Stoppers $ 50.00 (B)

Sex Offender Assessment Fee $ 350.00

Pay these sums in a monthly amount of$ 110.00

Follow all Special Conditions imposed in writing.

The Court authorizes your Community Supervision, Officer to modify conditions of community

supervision and to transfer you to any community supervision program or residential facility deemed

appropriate based upon your risk to the community and the level of your rehabilitation needs. If you do

not agree to the modification in writing, the Community Supervision Officer will refer the case to the

Court so that a hearing may be conducted."

Court Comments:

Judge Presiding

1have received a copy of this order. I agree to follow all ~ondition.s lmpo~e~. upon me and I know that

this community supervision can be revoked for any viola~ton. l.wtll. :em.atn 1n the legal c~stod~ of ~he

District Court of Jefferson County, Texas and 1 hereby wa1ve extradttlon lfl:am charged w1th a v1olat1on

and am arrested in another state.

Defendant

24

·-"

---

Sripulations. Waivc:rs c\: Judicial Admission

Cnm"·' nm·. ilic dclcndant. ,IDin(;d b)· 1111 counsel. ;JtHJ :\:.:Jt:::s tiut lundast;Jnd tk: forcgo111~·. ;Jcin<o!ii':nntctll';

iron: 1i1c C.'iHtr! ''"dIan: :JII'arc. of 1hc conscqu~n:.:cs of m_y pi:::J. I <llli mcnialh· ::ompclcnt <Jnd Ill\ plea :s

:r~cl:- ;md ,,->~•.:nJ;•rihJilad~. If counsel ,,.,,s :~ppoin1cd. I g11l' ur Jnd \I'Jii'C am·1ir11c pr01'Jdcd 10 r.tc h· /;r,,·

~~· prcp:frc fe~~ lrt;:i_ I <1111 lcn;,li\ ~alisficd ,,·itlltilc rcprcscni<Jlion 11ron::kJ :t) :n:: b:: nn :J!!·:•rr.::-' ,, hr.. ·

i\JO\ 1J::d fn!l; ciT::::i1·:· ;111d ~,·,nlp~i·~m i-ct;:!l rcprcs~nt:ilion. Und:::r .t,rt I .1-l C.C.P. I r;i1 cup all right>

::11 Cl\ It' m·: b1 l;t\1. 1\'hcthn ot' forn;. subsL:.lrJ~C or pm~cdurc. Joined oy Ill) attornc1 _.I giYc up m1 ngh1 :c,

:• 1::r-' :r: 1ili:; ::;s:: :1nd :tn· fJ 0.ill 1c t/1:.: appc:nan-:c. :.:on:·ronwlion and ::ross cxamin:Jiion of th~ 11 1tn<::,scs

~(·n<.~til 1c' o~;il :; 1C 11riw:n s:ipulations and :1grcc that tiler ma:· ix: considc;c;d a> c\·ici::ncc in rm c;:s·~- i

i;;JI":..' rc:uJ ·.IJ..: cit:::<:"'!; insln;m;;:nl and :m anorn~y i:a.; c:-;pl:~incd i1 10 n1:.: and I COI!llnillcd c;J;:h :rnd :.:1·crY

~i:.:lll::ll! ;rlit!l.:.:d I 1.;r1·c trr Ill\' rig/11 ie; confidcnlii.!li!y oflhc prr.: or p<J<c s::r11c:K~ rC;-J<)oi ;:nd :.1;_;:::::.: :il:il 1:

:11:1-' k ouilli:;J1· filed i1: the p<1j)'2r;: of Ill) c;1s~. l ani guilt\· of the oiTcnsc and all !esse~ included olJ'::ns::s

c!J~Jr~;~d ~rg:1iust n1e tr1 this case. ~ S\r::;ar tlt:ll i.!ll oCt::.~ fOr~goinf; as \\'Cll as ti:.:: ~csu:non~: [ gi\'f.: ~s '.he tr~:~h.

so ll::.:! r. !n~· c;:·,:i

I

.- ~-~~

_},., .. '\_·,..... _~ ..;\ .........

\! ~,~-----..-- ..... I -··

. C.•_.r.-~. . .~-~~~~-

Dr.fcubni \

<11 :>n: 1c ;u:J :it:ll\crrb;;c! 10 hclorc llH h_1· Ilie D::fcmtu:l on Ihis dale. I hcrt:h' :.:cni!·_, ti:ili ik ihutni'PI'IIIi

':!Jr1wn b·.::i("1H' and 'JT\ !h(' docke1. siH!C! ~ndior coznnlltni!~· su~rvision (ildcr is i.h:H.o:' tile d~!~n~!,iiH ::~ dr.:,

E~IL ED

•~ 1

1

c 'r)n--'·

;· ;

~~~~-- ! • u,.t. _.;..;·-:--=-----

: ' ,,

.~.us 2. ! ?ou:··

Ddrll(!ant\ Post Col!l'it:tion \Vain:n

'ill:.:; n:·'" !!I~ ::ki~ntLirJ! IOI!l('.C lw iii' cour:scl. ;rnd in IIT!ltll:! ;:nd inori2n Coun \I <Ill:.;'; ;;;1(: :.;tH:~. •.:p ~~111

::;;r::: f'rl'l'l~l:.:t' ;:lid :li~; rif!!;! ((• fli~: :: MOiiOil For ~~211 ·:·rial. l'vi~>lior; /-or .6.;rcsr. or ]l!d:;_;IJ~:n! ,_,: "iut:::~·oi

LOLITA RAMOS

DISTRICT CLERK

APPEAL

CAUSE NO. 98575

THE STATE OF TEXAS * IN THE 252ND

* COURT OF

vs * JEFFERSON COUNTY, TEXAS

WILLIE HENRY III

CLERK'S CERTIFICATE

I, LOLITA RAMOS, Clerk of the District Courts of Jefferson County, Texas, Do hereby certify that

the documents contained in this record to which this certification is attached are all of the documents

specified by Texas rules of appellate procedure 34.5 (A) and all other documents timely requested by all

parties to this proceeding under Texas rules of appellate procedure 34.5 (A).

Given under my hand and seal of office in Jefferson County, Texas, this day

Name of Clerk: Debbie Folse

Title of Clerk: Deputy Clerk

70

VERNON'S TX. C.C.P.

Art. § 2.03(b)

It is the duty of the trial court, the attorney representing th

accused, the attorney representing the state and all peace off-

icers to so conduct themselves as to insure a fair trial for

both the State and the defendant, not impair the presumption

of innocence, and at the same time afford the public the ben-

efits of a free press.

Art. § 1.15

No person can be convicted of a felony ... and in no event shall

a person charged be convicted upon his plea without sufficient

evidence to support the same ....

Art. § 38.23

no evidence obtained by an office~ or other person in viola-

tion of any provisions of law or constitution of State or

United States shall be admitted in evidence against the accused

on the trial of any criminal case.

Art. § 2.01

Each District Attorney shall ... it shall be the primary duty of

all prosecuting attorneys ... not to convict, but to see that

justice is done ....

STATE_BAB_BULES

Rule 1 .01~7) )

Perhaps no professional shortcoming is more widely resented

than procrastination. A client's interests often can be adver-

sely affected by the passage of time or th change of conditions

in extreme instances, as when a lawyer overlooks a statute of

limitations, the client's legal position may be destroyed.

Rule 1.02

A lawyer shall abide by a client's decisions;

(a)(3) In a criminal case, after consultation with the lawyer

as to plea to be entered, whether to waive jury trial, and

whether the client will testify.

Rule 1.06

Conflict of interest prohibited

Rule 3.09 (a)

The prosecutor in a criminal case sh~ll; refrain from prosecu-

ting or threatening to prosecute a charge that he the prosecu-

tor knows is not supported by probable cause;

FEDERAL.CONSTITUTIONAL.AMENDMENTS

Amendment IV

The right of the pople to be secure in their persons, ... shall no

be violated,amd no warrants shall issue, but upon probable cause

supported by oath or affirmation ...

Amendment V

No person shall be held to answer for a capital, or otherwise

infamous crime ... nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life, lib-

erty, or proper~y, without due process of law; ...

Amendment VI

In all criminal prosecutions,the accusd shall enjoy the right

to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed, .. and

to be informed of the nature and cause of the accusation ... and

to have the Assistance of counsel for his defence.

Amendment XIV

All persons born or naturalized in the United States, .. nor shall

any State deprive any person of life, liberty, or property, with

-out due process of law; nor deny to any person within its juris

-diction the equal protection of the la~s-

TX ~~~titon

TX. Constitution

Art. 1§10 - In all criminal prosecutions the accused shall have a

speedy and public trial by an impartial jury. he shall have the

right to demand the nature and cause of the accusation against

him, and to have a copy thereof. He shall not be compelled to

give evidence against himself, and shall have the right of being

heard by himself or counsel, or both, ...

Art. 1§15- The right of trial by jury shall remain inviolate ....

Art. 1§19- No citizen of this State shall be derived of life,

liberty, property, privileges or immunities, or in

any manner disfranchised, except by the due course

of the law of the land.

TX .. Penal.Code

V.T.c.A._§ 2.01

All persons are presume6 to be innocent and no person may be

convicted of an offense unless each element is proved beyond

a reasonable doubt.

V.T.C.A. § 1.07ta)(46)

Serious bodily injury means bodily injury that creates a sub-

stantial risk of death or that causes death, serious permanent

disfigurement, or protracted loss or impairment of the function

of any bodily member or organ.

1 REPORTER'S RECORD

2 VOLUME 1 OF 6

3 TRIAL COURT £AUSE NO. 98575

4

5 THE STATE OF TEXAS * IN THE 252ND DISTRICT

*

6 *

vs. * COURT OF

7 *

*

8 WILLIE HENRY III * JEFFERSON COUNTY, TEXAS

9

'10 * * * * * * * * * * * * * * * * * * * *

MASTER INDEX

11 * * * * * * * * * * * * * * * * * * * *

12

13 On the 27TH day of AUGUST, 2007, the following

14 proceedings came on to be heard in the above-entitled

15 and numbered cause before the Honorable Layne Walker,

16 Judge Presiding, held in Beaumont, Jefferson County,

17 Texas:

18

19 Proceedings reported by Machine Shorthand.

20

21

22

23

···~i<r. 24

"·"#'' ~f 25

.\ l

.~.

SUMMER TANNER, CSR, RPR

252nd District Court

1 A P P E A R A N C E S

2

3 FOR THE STATE:

4 Mr. Perry Thomas

'sBOT NO. 19849120

5 Assistant District Attorney

1001 Pearl, 3rd Floor

6 Beaumont, Texas 77701

7 FOR THE DEFENDANT:

8 Mr. Kevin Laine

SBOT NO. 00798313

9 Attorney at Law

1104 Orleans

10 Beaumont, Texas 77701

11 Mr. Audwin .Samuel

SBOT NO. 00791595

12 Attorney at Law

505 Milam, Suite 100

13 Beaumont, Texas 77701

14

15

16

17

18

19

20

21

22

23

... 24

25

SUMMER TANNER, CSR, RPR

252nd District Court

( 1 VOLUME 2

2 PLEA

3 8/27/07

4

5

6

7

8 (Please refer to Volume 2)

9 (Record taken by Jami Anderson)

10

11

12

i

13

'

14

15

16

17

18

19

20

21

22

23

24

25

SUMMER TANNER, CSR, RPR

252nd District Court

1 VOLUME 3

\

2 SENTENCING

3 10/1/07

4

5

6

7

8

9

10

1 (Please refer to Volume 3)

12 (Record taken by Jami Anderson)

i

13

14

15

16

-,

17

18

19

20

21

22

23

24

25

SUMMER TANNER, CSR, RPR

252nd District Court

.•

-~

1 VOLUME 4

2 MOTION TO REVOKE PROBATION

3 PLEA OF TRUE

4 PAGE

5 Case Called 4

6 Defendant Pleads to Counts 4

7 Case reset 5

8 Reporter•s Certificate 6

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

1 25

SUMMER TANNER, CSR, RPR

252nd District Court

1 VOLUME 5

2 MOTION TO REVOKE PROBATION

3 SENTENCING

4 PAGE

5 Case Called 4

6 Defendant's Comments 4

7 State's Comments 6

8 Case Recalled 9

9 Audio Played to Court 9

10 Defendant's Comments 14

11 State's Comments 15

12 Defendant Sentenced 17

13 Reporter's Certificate 18

14

15

16

17

18

19

20

21

22

23

24

) 25

SUMMER TANNER, CSR, RPR

252nd District Court

1 VOLUME 6

2 EXHIBITS

3

4 STATE'S NO. DESCRIPTION TENDERED ADMITTED VOL.

5 1 Plea Papers 2

6

7

8

9

10. (Please Refer to Volume 2)

11 (Record taken by Jami Anderson)

12

-~

..\

13

14

15

16

17 {:

1\

18

19

20

21

22

23

24

., 25

)

SUMMER TANNER, CSR, RPR

252nd District Court

'' 1

1 REPORTER'S ~ECORD

\.

2 VOLUME 2 OF

3 TRIAL COURT CAUSE NO. 98575

4

5

THE STATE OF TEXAS * IN THE 252ND DISTRICT

6 *

*

7 vs. * COURT OF

* ·-

8 *

~·JILLIE HENRY, III * JEFFERSON COUNTY, TEXAS

9

10

* * * * * * * * * * * * * * *

11

'PLEA OF NO CONTEST

12

< * * * * * * * * * * * * * * *

..

,..-

13

14 On the 27th day of August, 2007, the following proceedings

15 came on to be heard in the above-entitled and numbered

16 cause before the Honorable Layne Walker, Judge Presiding,

·''

17 held in Beaumont, Jefferson County, Texas:

18

'19 Proceedings reported by Machine Shorthand.

20

A P P E ARANC E S

21

22 MR. PERRY THOMAS M~. AUDWIN SAMUEL

SBOT NO. 19849120 SBOT NO. 00791595

23 Assistant District Attorney Attorney At Law

1001 Pearl 505 Milam

24 Beaumont, Texas 77701 Beaumont, Texas 77701

25

252ND DISTRICT COURT

1 VOLUME 2

2 PLEA OF NO CONTEST

PAGE

3

1

4 Case Called

2

5 Def~ndant Pleads No Contest

3

6 Case Reset

4

7 Reporter's Certificate

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

252ND DISTRICT COURT

1 8 I 2 7 I 01·

2 THE COURT: Good afternoon, sir. Other than

3 your hand, are you doing okay?

4 THE DEFENDANT;: Yes, sir.

5 THE COURT: Are you Willie Henry, III?

6 THE DEFENDANT: Yes, sir.

7 THE COURT: Mr. Samuel, will he waive the

8 formal reading?

9 MR. SAMUEL: Yes, sir, he will, Your Honor.

10 THE COURT: Mr. Henry, the ind~ctment in your

11 case alleges that on or about --

12 Well, is there any motions

13 MR. THOMAS: There's a motion, Your Honor, to

14 amend proceed only on Count 1 of this indictment and

15 amend Count 1 of the indictment to insert the word --

16 after intentionally and knowingly, insert "and recklessly"

17 and above that, the word "sexually" --when it says

18 sexually assault, eliminate the word "sexually." Then

19 aft~r the word "causing," eliminate the rest of the

20 indictment and submit it -- submit that it reads serious

21 bodily injury to the complainant by the use of his hands.

22 THE COURT: Is there any objection to that?

23 MR. SAMUEL: No objection to the amendment.

24 THE COURT: The indictment wi 11 be amended.

25 I'm initialing that and putting today's date on that.

252ND DISTRICT COURT

2

1 The indictment in your case alleges that on

2 or about the 1st day of May of 2000, that you committed

3 the offense ·of aggravated assault -- well, this indictment

(4\

"-...../

says "sexual" assault. I am amending the indictment to

,:........._

\2) the offense of "aggravated" assault --

6 MR. SAMUEL: Under Section 22

7 THE COURT: That's all right. I'm going to

8 go with aggravated assault.

9

To this indictment, sir, do you enter into a

10 plea of guilty· or not guilty?

11 THE DEFENDANT: No contest.

12

THE COURT: Have you entered into your plea

13 of no contest of your own free choice?

14 THE DEFENDANT: Yes, sir.

THE COURT: And is this your signature here?

15

THE DEFENDANT : Yes , s i r , t he best I co u l d

16

17 do, yes, sir.

THE COURT: And prior to signing this

18

19

document, did you read it and did Mr. Samuel explain it to

20 you to your full and complete satisfaction?

I

21 THE DEFENDANT: Yes, sir.

THE COURT: Do you have any questions about

22

23 it?

24 THE DEFENDANT: No, sir.

25

THE COURT: State's tendered No. 1 .

252ND DISTRICT COURT

3

1 MR. SA~UEL: There's no objection, Your

2 Honor. That wi 11 be under 22.02.

3 THE COURT: State's 1's admitted.

4 Any evidence that he's incompetent?

5 MR. SAMUEL: There's none, Your Honor.

6 THE COURT: Sir, you've entered into a

7 proposed plea bargain agreement with The State. The

8 proposal is that I defer all findings of gui 1 t, place you

9 on probation for a three-year period and assess a

10 ?50-dollar fine. ts that· your understanding of the

11 agreement?

12 THE DEFENDANT: Yes, sir.

13 THE COURT: Is that what you want me to do?

14 THE DEFENDANT: Yes, sir.

15 THE COURT: I'm going to accept your plea,

16 reset you for sentencing on October 1st at 9:30. I'll get

17 a P.S.I. report, and I'll see you at that time. Have a

18 good day.

19

20

21

22

23

24

25

252ND DISTRICT COURT

I V--"-•

1 ,REPORTER Is RECORD

2 VOLUME 3 OF __ _

3 TRIAL COURT CAUSE NO. 98575

4

5

THE STATE OF TEXAS * IN THE 252ND DISTRICT

6 *

*

7 vs. . .. COURT OF

*

8 *

WILLIE HENRY, III * JEFFERSON COUNTY, TEXAS

9

10

* *' * * .. * * * * * * * • 1r *

11

SENTENCING

12

'************* **

13

14 On the 1st day of October, 2007, the following proceedings

15 came on to be heard in the above·entitled and numbered

16 cause before the Honorable Layne Walker, Judge Presiding,

17 held in Beaumont, Jefferson County. Texas:

18

19 Proceedings reported by Machine Shorthand.

20

A P P E ARA NC E S

21

22 MR. PERRY THOMAS MR. AUDWIN SAMUEL

SBOT NO. 19849120 SBOT NO. 00791595

23 Assistant District Attorney Attorney At Law

1001 Pearl 505 Milam

24 Beaumont, Texas 77701 Beaumont, Texas 77701

25

1 VOLUME 3

·...r.

:-., 2 SENTENCING

PAGE

3

Case Called 1

4

1

5 Defendant Sentenced

Reporter's Certificate 2

6

7

8

9

10

11

12

13

I.

' 14

15

16

17

18 0

19

20

21

22

23

24

- ... ~

\,

I 25

---··- -·--- . -- --··--

10/1/07

THE COURT: 98575 on Willie Henry.

Good morning, sir. Are you Willie Henry?

4 THE DEFENDANT: Yes, sir.

5 THE COURT: Mr. Henry, in your case I find

6 the evidence to be sufficient to find you guilty of the

7 offense of aggravated assault. I'm going to defer that

8 finding, place you on probation for a three-year period,

9 assess a 750-dollar fine. And I wish you the best of

10 luck.

11

12

13

(i

14

15

16

17

18

19

20

21

22

23

24

~

~\ 25

•.

··~ 1 10/1/07

2 THE COURT: 98575 on Willie Henry.

3 Good morning, sir. Are you Willie Henry?

4 THE DEFENDANT: Yes, sir.

5 THE COURT: Mr. Henry, in your case I find

6 the evidence to be sufficient to find you guilty of the

7 offense of aggravated assault. I'm going to defer that

8 finding, place you on probation for a three-year period,

9 assess a ?50-dollar fine. And I wish you the best of

10 luck.

11

12

13

14

15

16

17

18

19

20

21

22

23

> 24

25

2

1 THE STATE OF TEXAS:

2 COUNTY OF JEFFERSON:

3

I, Jami Anderson, previous Official Court Reporter in and

4 for the 252nd Criminal District Court of Jefferson County,

State of Texas, do hereby certify that the above and

5 foregoing contains a true and correct transcription of all

portions of evidence and other proceedings requested in

6 writing by counsel for the parties to be included in this

volume of the Reporter's Record, in the above-styled and

7 numbered cause, all of which occurred in open court or in

chambers and were reported by me.

8

I further certify that this Reporter's Record of the

9 proceedings truly and correctly reflects the exhibits, if

any, admitted by the respective parties.

10

I further certify that the total cost for the preparation

11 of this Reporter's Record, Vols. 2 and 3, is

$-------------and was paid/will be paid by

12 ---------------------------- I

13 WITNESS MY O~FICIAL HAND this the -------- day of

------------------- J =~ 0 0 9 •

14

15

16

17

18 JAM! ANDERSON, Texas CSR 3225

Expiration Date: 12/31/10

19 Certified Shorthand Reporter

6852 Howe, Apt. C

20 Groves, Texas 77619

21

22

23

24

''- 25

...

1

• . :,,·..

1

2

REPORTER'S RECORD

VOLUME 4 OF 6

3 TRIAL COURT CAUSE NO. 98575

4

5 THE STATE OF TEXAS * IN THE 252ND DISTRICT

*

6 *

vs. * COURT OF

7 *

*

8 WILLIE HENRY III * JEFFERSON COUNTY, TEXAS

9

10 * * * * * * * * * * * * * * * * * * * *

MOTION TO REVOKE PROBATION

1.1 PLEA OF TRUE

....

* * * * * * * * * * * * * * * * * * * *

12

13

14 On the 8TH day of DECEMBER, 2008, the following

15 proceedings came on to be heard in the above-entitled

16 and numbered cause before the Honorable Layne Walker,

17 Judge Presiding, held in Beaumont, Jefferson County,

18 Texas:

19

20 Proceedings reported by Machine Shorthand.

21

22

23

24

25

SUMMER TANNER, CSR, RPR

252nd·District Court

2

• 1

2

3 FOR THE STATE:

A P P E A R A N C E S

4 Mr. Perry Thomas

SBOT NO. 19849120

5 Assistant District Attorney.

1001 Pearl, 3rd Floor

6 Beaumont, Texas 77701

7 FOR THE DEFENDANT:

8 Mr. Kevin Laine

SBOT NO. 00798313

9 Attorney at Law

1104 Orleans

10 Beaumontr Texas 77701

11

..

12

• 13

14

15

16

17

18

19

20

21

22

23

24

• 25

SUMMER TANNER, CSR, RPR

252nd Districi Court

..

3

• 1

2

3

VOLUME 4

MOTION TO REVOKE.PROBATION

PLEA OF TRUE

4 PAGE

5 Case Called 4

6 Defendant Pleads to Counts 4

7 Case reset 5

8 Reporter's Certificate 6

9

10

11

12

• 13

14

15

16

17

18

19

20

21

22

23

24

• 25

SUMMER TANNER, CSR, RPR

252nd District Court

4

• 1

2

3 Willie Henry.

THE COURT:

Kevin Laine?

Cause No. 98575 on

12/8/08

4 MR. LAINE: Yes, sir. He's in custody.

5· THE COURT: Good morning, sir. Are you

-

6 Willie Henry III?

7 THE DEFENDANT: Yes, sir. How you doing,

8 Your Honor?

9 THE COURT: Doing good~ Thank you. I

10 have a motion to revoke your unadjudicated probation.

11 Will he waive.the formal reading?

12 MR. LAINE: He will, Your Honor.

• 13 THE COURT: This motion states that on the

14 1st day of October of 2007, that you were placed on

15 probation for the offense of aggravated assault. I

16 found the evidence to be sufficient to find you guilty,

17 deferred the finding, placed you on probation for a

18 three-year period.

19 Count 1 alleges that you failed to

20 avoid injurious or vicious habits by making threatening

21 and/or harassing phone calls on or about the 20th day

22 of Ju 1 y of 2 0 0 8 . Is that true or not true?

23 THE DEFENDANT: True, Your Honor.

24 THE COURT: Count 2 alleges you failed to

• 25 provide verification of performing your community

SUMMER TANNER, CSR, RPR

252nd District Court

5

• 1

2

3

service hours . Is that true or not true?

THE DEFENDANT:

THE COURT:

True, Your Honor.

Have you entered into your

4 pleas of 11

true 11 to Counts 1 and 2 freely and

5 voluntarily?

6 THE DEFENDANT: Yes, sir.

7 THE COURT: Okay. I'm going to accept

8 your plea. I will reset your case for sentencing on

9 January 12th at 9:30. I'm going to get -an updated

10 report. Anything you want me to know -that's good about

11 you, make sure that you get that to Mr. Laine; and he

12 will get that to me. And I believe you .have a document

• 13 there that you've already executed .

14 Court Certification.

15 .not a plea bargain agreement.

That's the Trial

That certification states this is

Whatever decision I

.16 make, you can feel free to appeal me if you want to;

17 okay?

18 THE DEFENDANT: Yes, sir.

19 MR. LAINE: Thank you, Your Honor.

20 THE DEFENDANT: Thank you.

21

22

23

24

• 25

SUMMER TANNER, CSR, RPR

252nd District Court

6

• 1

2

3

THE STATE OF TEXAS)

COUNTY OF JEFFERSON)

REPORTER'S CERTIFICATE

4 I, Summer Tanner, Official Certified Shorthand

5 Reporter in and for the State of Texas, do hereby

6 certify that the above and foregoing contains a true

7 and correct transcription of all portions of evidence

8 and other proceedings requested in writing by counsel

9 for the parties to be included in this volume of the

10 Reporter's Record, in the above-styled and numbered

11 cause, all of which occurred in open court or in

12 chambers and were reported by me.

• 13'

14

I further certify that this Reporter's Record of

the proceedings truly and correctly reflecis the

15 exhibits, if any, admitted by the respective parties.

16 I further certify that the total cost for the

17 preparation of this Reporter's Record is

18 $ __ 1&~-7~---- and was paid by ~[~j~-~~-

19 WITNESS MY OFFICIAL HAND this is the

20 _______U~----- day of -~~------' 2009.

21

22 -- ~--------

23 Summer Tanner, RPR

Texas CSR #8208

24 Expiration Date: 12/31/10

•

Official Court Reporter

25 Jefferson County, Texas

Beaumont, Texas 77701

SUMMER TANNER, CSR, RPR

252nd District Court

1

1 REPORTER'S RECORD

2 VOLUME 5 OF 6

-;.::

·- .-· 3 TRIAL COURT CAUSE NO. 98575

4

5 THE STATE OF TEXAS * IN THE 252ND 'DISTRICT

*

6 *

vs. *' COURT OF

7 *

*

8 WILLIE HENRY III * JEFFERSON COUNTY, TEXAS

9

10 * * * * * * * * * * * * * * * * * * * *

MOTION TO REVOKE PROBATION

11 SENTENCING

* * * * * * * * * * * * * * * * * * * *

12

13

14 On the 12TH day of JANUARY, 2009, the following

15 ~proceedings came on to be heard in the above-entitled

16 and numbered cause before the Honorable Layne Walker,

17 Judge Presiding, held in Beaumont, Jefferson County,

18 Texas:

19

20 Proceedings reported by Machine Shorthand.

21

22

23

24

25

SUMMER TANNER, CSR, RPR

\ 252nd District Court .O. . . . \.)_ ~·o::~.·.

CQ)

·:-~ -. :, . u

..... , .

·' :~:'·

2

1

·~ 2

A P P E A R A N C E S

3 FOR THE STATE:

4 Mr. Perry Thomas

SBOT NO. 19849120

5 Assistant District .Attorney

1001 Pearl, 3rd Floor

6 Beaumont, Texas 77701

7 FOR THE DEFENDANT:

8 Mr. Kevin Laine

SBOT NO. 00798313

9 Attorney at Law

1104 Orleans Street

10 Beaumont, Texas 77701

11

12

• 13

14

15

16

17

18

19

20

21

22

23

24

\

• 25

SUMMER TANNER, CSR, RPR

252nd District Court

3

1 VOLUME 5

2 MOTION TO REVOKE PROBATION

3 SENTENCING

4 PAGE

5 Case Called 4

6 Defendant's Comments 4

7 State's Comments 6

8 Case Recalled 9

9 Audio Played to Court 9

10 Defendant's Comments 14

11 State's Comments 15

12 Defendant Sentenced 17

13 Reporter's Certificate 18

14

15

16

17

18

19

20

21

22

23

24

25

SUMMER TANNER, CSR, RPR

252nd District Court

4

1 1/12/09

2 THE COURT: 98575 on Willie Ray Henry.

3 THE DEFENDANT: Good morning/ Your Honor.

4 THE COURT: Good morning. How are· you?

5 THE DEFENDANT: I • m doing good.

6 THE COURT: Are you Willie Ray Henry?

7 THE DEFENDANT: Yes 1 sir.

8 THE COURT: Okay. Mr. Laine~· do you have

9 any comments?

10 MR. LAINE: Yes 1 Your Honor. Mr. Henry•s

11 case was transferred to Denton County. He had a sex

12 offender assessment. That assessment concluded with

13 classes that he was required to go to. He began his

14 reporting to the probation department once a month and

15 then twice a month with home visits every other Monday.

16 Once he got there/ he went to the end of April class

17 for the offender -- he went to the May 8th class/ then

18 he went to his May 16th class there. That class was

19 with the victim well 1 with Courtney Smith 1 who is

20 the counselor. May 16th they said we are going to

21 pause your classes for a polygraph which is part of

22 the program

23 THE COURT: Let me interrupt you. Is

24 Courtney Smith here?

25 MR. THOMAS: The probation officer from

SUMMER TANNER. I CSR I RPR

252nd District Court

5

1 Denton County?

2 THE COURT: Yes.

3 MR. THOMAS: No. They -- they are willing

4 to come if the Court would want to hear

5 THE COURT: No. I was just wondering. I

6 didn't mean to interrupt you.

7 MR. LAINE: So, May 16th was hi~ last

8 class with Ms. Smith. Then he had to go get a

9 polygraph. The polygrap.h was taken, I think, the

10 30th of May. Right after -- I'm sorry to put this in

11 chronological order, Your Honor; but it kind of leads

12 up to how this outburst came about. May 30th is when

13 he took the polygraph. His probation officer here said

14 report back -- report back to his classes. He had

15 called -- and we got the phone records, Your Honor,

16 just because we wanted the Court to know he really

17 was -- he's been reporting every time that the officer

18 has wanted to know where he was. They knew where he

19 was.

20 He had actually reported and called

21 after he had the polygraph. He called the 2nd of July,

22 the 3rd of July, the 14th of July, the 16th of July,

23 five times on the 20th of July. What was happening

24 was, I think Ms. Smith was busy with her classes and

25 wasn't getting back with -- with Mr. Henry. And

SUMMER TANNER, CSR, RPR

252nd District Court

6

1 Mr. Henry was steady calling Brian back here; and Brian

2 was saying, you are lying. You are not calling her.

3 You are not getting back with the results of the

4 polygraph from Ms. Smith.

5 Well, Ms. Smith, at the very

6 beginning of their relationship, their counselling, she

7 said, I am a "B" and I am always going to be a "B" and

8 that•s how you have to take me.

9 Well, on July 20th, he left messages

10 and said, I know you said you are going to be a· "B" and

11 I think you are a "B, " because you are going to get

12 your -- you are getting me in trouble with my probation

13 officer down in Beaumont because he thinks I am lying.

14 I took the polygraph. I am trying to get you the

15 results so I can steady go back to my classe~.

16 So, Your Honor, what he said on those

17 recordings is totally inappropriate. He had surgery to

18 his hand, and he was on medication prescribed. And

19 he shouldn • t. have called her a "B" the number of times

'

20 he did. He•s been in jail for three months, Your

21 Honor. We would ask you sanction him, make him stay

22 another three months in jail. There•s no new offenses.

23 He is a medium risk, according to the report.

24 THE COURT: Okay. Mr. Thomas?

25 MR. THOMAS: Judge, I don•t know if

SUMMER TANNER, CSR, RPR

252nd District Court

7

1 Mr. Diaz was able to e-mail the calls to the Court or

2 not. 'I have them on a CD, if the Court wants to hear

3 them. I had an opportunity to hear the calls he

4 THE COURT: I want to play them.

5 MR. THOMAS: If you will give me a break,

6 I will get a player down here; and I will I play them

7 for you.

8 THE COURT: You bet. Before we get to

9 that point, what will I hear? Whenever I hear these

10 CDs, what am I going to hear?

11 THE DEFENDANT: I know, Your Honor, I us~d

12 the "B" word.

13 THE COURT: Okay.

14 THE DEFENDANT: I did tell her to quit

15 lying on me.

16 THE COURT: Okay.

17 THE DEFENDANT: And 1n all honesty, I

18 really don't remember the entire conversation. What

19 l;appened was

20 THE COURT: Had you been drinking or

21 smoking or anything?

22 THE DEFENDANT: No. I was on the

23 hydrocod(Jne ancl.. -~YJ;"it:.a.

24 THE COURT: Uh-huh.

25 THE DEFENDANT: And I actually don't

SUMMER TANNER, CSR, RPR

252nd District Court

8

1 remember the conversation. My wife, who is here today,

2 walked in and told me what comments I made. And

3 immediately when she made me aware of it, I did call

4 Ms. Courtney -- I forgot her last name. I did call

5 Ms. Courtney back, and I did apologize to her --

6 THE COURT: Uh-huh.

7 THE DEFENDANT: -- and ask her --

8 THE COURT: So, I'm going to hear that you

9 called her the "B" word. I will hear that you did

10 what?

11 THE DEFENDANT: Told her to stop lying on

12 me. And my wife just told me I used quite a bit of

13 profanity, which anyone who knows me know I don't use

14 profanity whatsoever.

15 THE COURT: Am I going to hear any hatred?

16 THE DEFENDANT: I -- honestly,

17 Judge Walker, I'm not I -don't

~ -....

know. I don't

-· ··----

18 remem:q~_r anything

--------------·-

,~--·--·- -----.....

--·---------~------

19 THE COURT: Okay.

20 THE DEFENDANT: that was said. But my

21 wife did tell me it was awful, and that's why I picked

22 up the phone and apologized to her.

23 THE COURT: If you would, would you

24 call -- use this phone right here and tell somebody to

25 bring something down. I look forward to hearing it;

SUMMER TANNER, CSR, RPR

252nd District Court

9

1 okay? If it will be what you say, then i t ' s not going

2 to be that big of a deal.

3 (PAUSE IN PROCEEDINGS)

4 THE COURT: All right. I want to hear

5 that tape. Recall on 98575 on Willie Ray Henry. We

6 are ready -- hang on. Before I get started, I am going

7 to hear the "B" word, I am going to hear some fussing.

8 THE DEFENDANT: Some profanity, my wife

9 told me.

10 THE COURT: Profanity?

11 THE DEFENDANT: Yes, sir. Again, I can't

12 really -- I don't remember. I was on the· medication.

----------------~-----·---·-------------·

13 THE COURT: Okay.

14 THE DEFENDANT:

\

My wife is here.

J

She can

15 probably tell you better than I can.

16 THE COURT: No. Your wife isn't the one

17 going to the p~nit;:er:~~-Cl.FX. Let's go ahead.

18 COURT REPORTER: Do you want this on the

19 record?

20 THE COURT: No.

21 (AUDIO PLAYED TO COURT)

22 THE COURT: Wayne, I need them back in the

23 back to :De quiet.

24 (AUDIO PLAYED TO COURT)

25 THE COURT: All right. So, we did use the

SUMMER TANNER, CSR, RPR

252nd District Court

10

1 11

B 11 word and a few other things; right?

2 THE DEFENDANT: Yes, sir.

3 THE COURT: And that was your probation

4 officer?

5 THE DEFENDANT: That was the ~ounselor's

6 office.

7 THE COURT: Courtney Smith and then

8 Brian --

9 THE DEFENDANT: Is the Denton County

10 probation officer~

11 THE COURT: Right. Mr.

12 THE DEFENDANT: May I -- sorry. Go --

13 THE COURT: No. Go right ahead.

14 THE DEFENDANT: I sound -- I admit it

15 sounds awful. That's exactly what my wife had told me,

16 that it was pretty bad. I did call back apologizing

17 and asking for him that week, Your Honor. I'm trying

18 not to take up much time, but to lead up --

19 THE COURT: Man, you take whatever time

20 you need. This is your life.

21 THE DEFENDANT: That conversation lead up

22 when -- it was a lot of frustration, because when I

23 walked into Courtney's office for that second meeting,

24 she addressed me and she just told me point-blank,

25 Willie, I 'm a 11

B, 11

call me a "B. '·' I really don't care.

SUMMER TANNER, CSR, RPR

252nd District Court

11

1 You're a lying 11

SOB. 11

2 And she used other profanity -- which

3 I shouldn't have allowed myself to stoop to the same

4 level, and I was wrong. I do·apologize to you and this

5 Court, as well --

6 THE COURT: Let me ask --

7 THE DEFENDANT: what I did to

8 Ms .. Courtney

9 THE COURT: you a question: Did you

10 only do two years in college study in psychology, or do

11 you have more psychological training than that?

12 THE DEFENDANT: I was in my third year at

13 UTA.

14 THE COURT: So, you had three years of

15 studying psychology?

16 THE DEFENDANT: Yes, sir.

17 THE COURT: And then you said you were a

18 minister?

19 THE DEFENDANT: Yes, sir.

20 THE COURT: Okay. And the offense that

21 you are here for is aggravated assault, and that was --

22 the child was how old?

23 MR. THOMAS: It was an adult.

24 THE COURT: I mean -- I'm sorry.

25 MR. LAINE: Your Honor, I believe he was

SUMMER TANNER, CSR, RPR

252nd District Court

12

1 32, and she was 39.

2 THE COURT: I'm sorry. Yeah. You said

3 that you should be allowed to have concubines like King

4 David in the Old Testament.

5 THE DEFENDANT: That was not true. Your

6 Honor, to my knowledge, King David didn't even have

7 concubines. Solomon did-- which I've never taught on

8 King Solomon. What -- that is a little more

9 complicated than it seems. And I had no idea, Your

10 Honor -- I never .gg_t____a report of what I was alleged to

11 have done until I went to take the polygraph in May of

12 2007 (sic).

13 When I saw what I was accused of, it

14 did bother me because that's not how it happened. I

15 did have an affair, which was in Alabama in '99. She

16 then got her moved in with my wife and I -- moved to

17 Texas, moved in with us here in Beaumont. Upon her

18 moving, I did have intercourse with her one more time.

19 THE COURT: Okay.

20 THE DEFENDANT: She then joined the

21 church. After she joined the church is when I cut the

22 relationship off. She did get upset. She went to my

23 wife actually -- because I did tell my wife about it

24 when it happened. She went to my wife and asked my

25 wife if I could impregnate her because God told her I

SUMMER TANNER, CSR, RPR

252nd District Court

.L3

1 was supposed to be her husband. At that point, my wife

2 asked her to move out the house.

3 THE COURT: Uh-huh.

4 THE DEFENDANT: She asked me did she have

5 to move.

6 I said, yes, if that's what she~told

7 you.

8 Then she told me, if it's the last

9 thing I do, I will get you. I will find a way to get

10 you, and you will never find me.

11 And that was how -- that was the last

12 time I saw her. One of things that bothered me in the

13 report, as well, when I read it, was the other

G 14 accusations on her daughter. And she got up in church,

15 as well, as made accusations

16 THE COURT: On the 16-year-old daughter?

17 THE DEFENDANT: Yes.

18 THE COURT: They say you impregnated her?

19 THE DEFENDANT: Right. She also made

20 accusations -- which I didn't see that report. She got

21 up in the church that she went to and told them I had

22 relations with my 22-year-old daughter at that time.

23 She was only -- she had never met her, but she told

24 everybody I did and that's why she wasn't with me,

25 which was not the case.

0 She was just living with her

SUMMER TANNER, CSR, RPR

252nd District Court

13

1 was supposed to be her husband. At that point, my wife

2 asked her to move out the house.

3 THE COURT: Uh-huh.

'

4 THE DEFENDANT: She asked me did she have

5 to move.

6 I said, yes, if that's what she told

7 you.

8 Then she told me, if i t ' s the last

9 thing I do, I will get you. I will find a way to get

10 you, and you will never find me.

11 And that was how -- that was the last

12 time I saw her. One of things that bothered me in the

13 report, as well, when I read it, was the other

14 accusations on her daughter. And she got up in church,

15 as well, as made accusations

16 THE COURT: On the 16-year-old daughter?

17 THE DEFENDANT: Yes.

18 THE COURT: They say you impregnated her?

19 THE DEFENDANT: Right. She also made

20 accusations -- which I didn't see that report. She got

21 up in the church that she ·went to and told them I had

22 relations with my 22-year-old daughter at that time.

23 She was only -- she had never met her, but she told

24 everybody I did and that's why she wasn't with me,

25 which was not the case. She was just living with her

SUMMER TANNER, CSR, RPR

252nd District Court

14

1 mother at that time.

2 MR. LAINE: Your Honor, just as far as

3 this accusation, which is despicable, clearly he did

4 it. Clearly he has accepted responsibility.for that.

5 THE COURT: Well, that's what I am trying

6 to get down to is that -- at the time you said the only

7 reason that you pled guilty was because you ran out of

8 money to pay your attornev. You said the victims made

9 the story up.

10 THE DEFENDANT: Right. And I was going to

11 go -- I was going to go to trial, but Mr. Samuel told

12 me I had to come up with another $3500.

13 THE COURT: But now you're standing here

14 telling me that you did do this and you are guilty

15 and --

16 THE DEFENDANT: Of -- what happened, I

17 didn't -- what he told me I was -- I was found guilty

I

18 of is being a pastor and manipulating a relationship,

19 and that's not how i t - -

20 THE COURT: That's pretty much why I am

21 spending so much time with you is just to pretty much

22 show on the record how manipulative you are.

23 THE DEFENDANT: Okay.

24 MR. LAINE: Your Honor, I -- as far as the

25 accusation that he's in violation of probation -- what

SUMMER TANNER, CSR, RPR

252nd District Court

1 he did was despicable. He -- he did call about four or

0 2 five times before. If it ~s a new offense, as far as

3 harassment, a misdemeanor, it would car.ry 180 days

4 THE COURT: No. It goes much deeper than

5 that.

6 MR. LAINE: Well, Your Honor, I think -- I

7 think that there is some -- something should be said

8 that. he was on medication at the time.

9 THE COURT: That's not what he said.

10 THE DEFENDANT: Yes, sir.

11 THE COURT: That's not at all what he

12 said. What he said was he hadn't been smoking, he

13 hadn't been drinking. He's just as sober -- he had 12

0 14 witnesses, the whole nine yards.

15 THE DEFENDANT: And

16 THE COURT: And I think that the real

17 truth is is that's more than manipulation. And after

18 it was all said and done, you thought, oh, my God, what

19 if she recorded all this and this Judge hears this.

20 THE DEFENDANT: Honest --

21 THE COURT: Anyway, I've heard enough.

22 Mr. Thomas, what are your comments?

23 MR. THOMAS: Judge, there's another area

24 that interests me about how manipulative he is, is that

25

G when he makes his first phone call to the counselor in

SUMMER TANNER, CSR, RPR

252nd District Court

.lt)

1 Denton County, he says, you know, I need anger

0 2 management. I'm mad, and the reason why is because I

3 need anger management.

4 Well, he's quite under control today

5 in this courtroom in front of you. He can turn it on,

6 turn it off when he wants to when it's convenient

7 for him. And if he wants to be mad at somebody, he

8 will; and if he wants to be nice, he can. That

9 indicates to me he's in complete control of his

10 emotions. And, again, it's just another way to

11 manipulate this system and this Court. State

12 recommends revocation in the case with appropriate

0 13 amount of pen time.

14 MR. LAINE: Your Honor, all these calls

15 were made on the same day. H~ had medication when he

16 made the calls, and he. said he doesn't recall what he

17 said. We have provisions in law to give him leniency

18 for that or, at least, some consideration.

19 THE COURT: I think that's if I believe

20 that he was, in fact, on medication, which I do not. I

21 quite honestly don't believe a word --

22 MR. LAINE: Your Honor --

23 THE COURT: he's saying.

24 MR. LAINE: I have a list of

0 25 medications and his prescriptions.

SUMMER TANNER, CSR, RPR

252nd District Court

17

1 THE COURT: Th~t's all right. I don't

think that proves whether he was on them or not.

In your case, Mr. Henry, I find the

evidence to be sufficient to find Count 1 and 2 to be

true. They are true. I hereby revoke your

unadjudicated probation. I now find you.guilty of the

7 offense of aggravated assault. You are therefore

8 guilty of the offense. I assess your punishment at

18 years' confinement in the Institutional Division.

1 You will receive credit for any and all time that you

1 are entitled to by law. Again, I've handed you the

1 certification stating that this is not a plea bargain

-·

-....

agreement. You feel free to appeal my decision. Have

1 a good day.

SUMMER TANNER, CSR, RPR

252nd District Court

• 1

2

3

THE STATE OF TEXAS)

COUNTY OF JEFFERSON)

REPORTER'S CERTIFICATE

4 I I Summer Tanner, Official Certified Shorthand

5 Reporter in and for the State of Texas, do hereby

6 certify that the above and foregoing contains a true

7 and correct transcription of all portions of evidence

8 and other proceedings requested in writing by counsel

9 for the parties to be included in this volume of the

10 Reporter's Record, in the above-styled and numbered

11 cause, all of which occurred in open court or in

12 chambers and were reported by me .

• 13

14

I further certify that this Reporter's Record of

the proceedings truly and correctly reflects the

15 exhibits, if any, admitted by the respective parties.

16 I further certify that the total cost for the

17 preparation of this Reporter's Record is

18 $ _j_~q'-]2______ and was paid by JtiliklVL_hllrL~-

19 WITNESS MY OFFICIAL HAND this is the

20 ----~--------day of ___ JCt~~-~----' 2009.

-~-~---------

21

22

23 Summer Tanner, RPR

Texas CSR #8208

24 Expiration Date: 12/31/10

·- 25

Official Court Reporter

Jefferson County, Texas

Beaumont, Texas 77701

SUMMER TANNER, CSR, RPR

252nd District Court

)

In The

FILED

JUL 2 5 2012

Court ofAppeals CAROL ANNE HARLEY

CLERK OF THE COURT

NINTH COURT OF APPEALS

Ninth District of Texas at Beaumont .

NO. 09-12-00309-CR

IN RE WILLIE HENRY, III

Original Proceeding

MEMORANDUM OPINION

Relator Willie Henry, III filed a petition for writ of mandamus with this Court.

Henry's petition apparently seeks to attack the judgment in his underlying criminal case,

alleging (1) the trial court lacked jurisdiction and (2) the evidence was insufficient

thereby rendering the judgment void. The judgment Henry complains of and the attached

exhibits pertain to trial cause number 98575, which was previously appealed to this Court

and affirmed. See Henry v. State, No. 09-09-00029-CR, 2009 WL 2044819 (Tex. App.-

Beaumont July 15, 2009, no pet.) (mem. op., not designated for publication).

Relator has not demonstrated that he is clearly entitled to mandamus relief from

this Court. See State ex rei. Hal v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924,

927 (Tex. Crim. App. 2001) (To demonstrate entitlement to a writ of mandamus, a relator

1

must establish that the trial court failed to perform a ministerial duty, and that relator has

no other adequate legal remedy.). Accordingly, we deny relief on the petition for writ of

mandamus.

PETITION DENIED.

PER CURIAM

Opinion Delivered July 25, 2012

Before McKeithen, C.J., Kreger and Horton, JJ.

2