Petition for Writ of Certiorari — Ricky Haywood-Watson, Petitioner v. Texas

APPENDIX A

Affirmed and Memorandum Opinion filed February 11,2020.

In The

Jfamrtmitlj Court of Appeals

NO. 14-18-00547-CR

RICKY HAYWOOD-WATSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1494189

MEMORANDUM OPINION

Appellant appeals his conviction for continuous sexual abuse of a child.

Appellant’s appointed counsel filed a brief in which he concludes the appeal is

wholly frivolous and without merit. The brief meets the requirement of Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional

evaluation of the record and demonstrating why there are no arguable grounds to

be advanced. See High v. State, 573 S.W.2d 807, 811-13 (Tex. Crim. App. 1978).

A copy of counsel’s brief was delivered to appellant. Appellant was advised

of the right to examine the appellate record and file a pro se response. See Stafford

v. State, 813 S.W.2d 503, 512 (Tex. Crim. App. 1991). At appellant’s request, the

record was provided to him. On October 14, 2019, appellant filed a pro se response

to counsel’s brief. Appellant also filed a reply to the State’s brief on December 16,

2019.

We have carefully reviewed the record, counsel’s brief, appellant’s response

and reply, and the State’s brief, and agree the appeal is wholly frivolous and

without merit. Further, we find no reversible error in the record. A discussion of

the brief or pro se response would add nothing to the jurisprudence of the state. We

are not to address the merits of each claim raised in an Anders brief or a pro se

response when we have determined there are no arguable grounds for review. See

Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005).

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Panel consists of Chief Justice Frost and Justices Jewell and Spain.

Do Not Publish — Tex. R. App. P. 47.2(b).

2

APPENDIX B

FILE COPY

Justices

Chief Justice

Tracy Christopher

kem Thompson Frost

ken wise

Kevin Jewell

Frances Bourliot

Jerry Zimmerer

Charles A. Spain

Meagan Hassan

Margaret "Meg" Poissant

Clerk

Christopher a. Prine

Phone 713-274-2800

Mmtetttfbi dkmrt Appeal#

301 Fannin, Suite 245

Houston, Texas 77002

Tuesday, March 17, 2020

Ricky Haywood-Watson

#02206869

Telford Unit

3899 Hwy 98

New Boston, TX 75570

Eric Kugler

Assistant District Attorney

1201 Franklin

Suite 600

Houston, TX 77002-1923

* DELIVERED VIA E-MAIL *

Dan McCrory

Harris County District Attorney Office

500 Jefferson

Suite 600

Houston, TX 77002

* DELIVERED VIA E-MAIL *

RE:

Court of Appeals Number: 14-18-00547-CR

Trial Court Case Number: 1494189

Style: Ricky Haywood-Watson

v.

The State of Texas

Please be advised that on this date the Court DENIED APPELLANT’S motion

for rehearing in the above cause.

Panel Consists of Chief Justice Frost and Justices Jewell and Spain

Sincerely,

Is/ Christopher A. Prine, Clerk

cc:

APPENDIX C

OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS FILE COPY

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

6/17/2020

COA No. 14-18-00547-CR

HAYWOOD-WATSON, RICKY Tr. Ct. No. 1494189

PD-0370-20

On this day, the Appellant's Pro Se petition for discretionary review has been

refused.

Deana Williamson, Clerk

RICKY HAYWOOD-WATSON

TELFORD UNIT - TDC # 2206869

3899 STATE HWY 98

NEW BOSTON, TX 75570

APPENDIX D

/u

on

Ricky Haywood-Watson

TDCJ No. 2206869, Barry B. Telford Unit

3899 State Highway 98, New Boston, Texas 75570-5669

Main Phone:(903)628-3171

RECEIVED IN

July 6, 2020 ;

COURT OF CRIMINAL APPEALS

JUL 1 32020

Deana Williamson, Clerk

Court of Criminal Appeals

P.0. Box 12308, Capitol Station

Austin, Texas 78711

Deana Williamson, Cierk

(

Re: Ricky Raywood-Vatson v. The State of Texas

Case No. PD-0370-20

Dear Honorable Clerk:

Enclosed for filing with the Court of Criminal Appeals are Ap­

pellant’s Motion for Leave to File Appellant's Amended Motion for

Rehearing and Appellant's Amended Motion for Rehearing. Please

file said documents and bring them to the attention of the Court.

Thank you for your kind assistance in this matter.

i

Re

rnmwr

RIl£ky Haywood-watson

APPELLANT

$B$T Copy

!

Cc w/encl: RH-W

Kim K. Ogg, District Attorney

State Prosecuting Attorney

AVAILABL£

NO. PD-0370-20

COURT OF APPEALS NO. 14-18-00547-CR

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

RICKY HAYWOOD-WATSON,

Appellant s

v.

THE STATE OF TEXAS,

Appellee.

;

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY

i

APPELLANT'S MOTION FOR LEAVE TO FILE

APPELLANT'S AMENDED MOTION FOR REHEARING

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Ricky Haywood-Watson, Appellant, presents this motion for

leave to file Appellant's Amended Motion for Rehearing pursuant

to Texas Rules of Appellate Procedure 79».3. In support of this

motion, Haywood-Watson states the following:

I.

Haywood-Watson timely filed a motion for rehearing of the

i

order that refused his Petition for.Discretionary Review. The

Court has not entered a decision on the motion.

II.

Haywood-Watson seeks to advance a new ground for review that

was not and could not have been raised in the original petition.

See Gambitl

State., 692 S.W.2d 106, 107-(Tex.Grim.App. 1985)

I

(may be possible to use such amendment to advance new ground for

review when rehearing Sought from denial of petition for review).

The question Haywood-Watson seeks to1 present for review is as

follows: In light of Ramos v„ Louisiana,| 590 U.S. ___ , 2020 WL

1906545 (April 20, 2020), is a jury required to agree unanimously

!

on which two or specific acts of sexual labuse were committed by

the defendant in a prosecution for Continuous Sexual Abuse of

Young Child?

New constitutional rules governing the conduct of prosecutions

must be ".applied retroactively to all cases, state or federal,

pending on direct review or not yet final" when the rule was an­

nounced, regardless of whether they constitute a clear break from

past precedenti Griffith v„ Kentucky, 479 U.S. 314, 328 (1987);

Steadman a. State, 360 SW.3d 499, 504 rij. 13 (Tex.Ctim.App. 2012).

In Samos v. Louisiana, the Supreme Court of the United States

announced a new constitutional rule that the term "trial by an

impartial jury" contained within the Sixth Amendment carries with

it the requirement of jury unanimity.

Texas Penal Code § 21.02(d) violates the United States con­

stitutional requirement of a unanimous jury verdict, which is a

recurring issue that this Court has failed to decide since the

statute's inception*

APPELLANT'S MOTION FOR LEAVE

HAYWOOD-WATSON V- STATE " 2

PRAYER

Ricky Haywood-Watson prays that the;Court grant this motion

for leave to file Appellant's Amended Motion for Rehearing*

RespectfiuiLy requested,

Dated: July 6, 2020

Si

■ RICKY HAYWOOD-WATSON

APPELLANT

TDCJ No. 2206869

! Barry B. Telford Unit

3899 State Highway 98

, New Boston, Texas 75570

! Main Phone:(903)628-3171

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the forego­

ing motion, was served by placing Same iri the United States Mail 9

first-class postage prepaid, on the 6th day of July, 2020, ad­

dressed to:

j

Kim K. Ogg, District Attorney

500 Jefferson Street, Suite 600

Houston, Texas 77002

i

State Prosecuting Attorney

P.0. Box 13046

Austin, Texas 78711-3046

w

RIGm HAYWOOD-WATSON

: APPELLANT

;

appellant's motion for leave

!

HAYWOOD-WATSON V. STATE - 3

!

i

APPENDIX E

PD-U J /U

o r\

Ricky Haywood-Wat son

TDCJ No. 2206869, Barry B. Telford Unit

3899 State Highway 98, New Boston, Texas 75570-5669

Main Phone:(903)628-3171

RECEIVED IN

July 6, 2020

COURT OF CRIMINAL APPEALS

JUL 1 32020

Deana Williamson, Clerk

Court of Criminal Appeals

P.O. Box 12308, Capitol Station

Austin, Texas 78711

Deana Williamson, Clerk

(

Re: Ricky Haywood-Vatson v. The State of Texas

Case No. PD-0370-20

Dear Honorable Clerk:

Enclosed for filing with the Court of Criminal Appeals are Ap­

pellant's Motion for Leave to File Appellant's Amended Motion for

Rehearing and Appellant's Amended Motion for Rehearing. Please

file said documents and bring them to the attention of the Court.

Thank you for your kind assistance in this matter.

mpmr

Re

RIifo VaYWOOD-WATSON

APPELLANT

1

lESTCOPy

Cc w/encl: RH-W

Kim K. Ogg, District Attorney

State Prosecuting Attorney

AVAILABLE

I

NO. PD-0370-20

COURT OF APPEALS NO. 14-18-00547-CR

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

. i

RICKY HAYWOOD-WATSON,

Appellant,

!

V.

THE STATE OF TEXAS,

Appellee.

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY

APPELLANT'S AMENDED MOTION FOR REHEARING

;

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Ricky Haywood-Watson, Appellant, submits this amended motion

for rehearing pursuant to Texas Rules of Appellate Procedure 79.3

and requests that the Court resubmit this cause for further con­

sideration Of its refusal of his Petition for Discretionary Re­

view.

QUESTION PRESENTED FOR REVIEW

In light of Ramos v. Louisiana, 590 U.S. ___ , 2020 WL 1906545

1

(April 20, 2020), is a jury required to agree unanimously on which

I

:

two or more specific acts of sexual abuse were committed by the

defendant in a prosecution for Continuous Sexual Abuse of Young

Child?

REASON FOR REVIEW

The question presented is a recurring issue that this Court

has failed to decide since the inception of Penal Code § 21'i.02 in

2007. Based on the new constitutional rule established in Romos

v. Louisiana, 590 U.S. ___, 2020 WL 1906545 (April 20•, 2020), the

jury needs to unanimously agree on which two acts of sexual abuse

occurred because they are not manner and means of committing the

offense of Continuous Sexual Abuse of Young Child.

Haywood-Watson was convicted of Continuous Sexual Abuse of

Young Child by a jury that was instructed that it was not required

to agree unanimously on which specific acts of sexual abuse were

committed by the defendant or the exact idate When those acts Were

:

committed. This violated Haywood-Watson'!s right to a jury trial,

as guaranteed by Amendments VI and XIV to the United States Con-

1.

stitution. See Ramos v% Louisiana3 590 U.S. _2020 WL 1906545

(April 20, 2020).

j

i

A person commits the offense of Continuous Sexual Abuse of

Young Child if during a period of 30 days or more in duration, a

person who is age 17 or older commits two or more acts of sexual

abuse against one or more victims who are under the age of 14.

TEX. PEN. CODE § 21.02(b). Subsection (d) states, "If a jury is

the trier of fact, members of the jury ate not required to agree

unanimously on Which specific acts of sexual abuse were commited

by the defendant or the exact date when those acts were committed."

> APPELLANT'S AMENDED MOTION FOR REHEARING

HAYW00D-WATS0N V. STATE - 2

TEX. PEN. CODE § 21.02(d).

i

In Ramos v. Louisiana, 590 U.S. ___ , 2020 WL 1906545 (April

20, 2020), the Supreme Court of the United States explained that

the Sixth Amendment promises that "[i']n :all criminal prosecutions,

the accused shall enjoy the right to a speedy trial by an impar­

tial jury of the State and district wherein the crime shall have

been committed, which district shall have been previously ascer­

tained by law." Id., slip op. at 3. "But! it says nothing about

what a 'trial by an impartial jury' entails. Still, the text and

structure of the Constitution clearly suggest that the term 'trial

by ah impartial jury' carried with it sojme meaning about the coh^

tent and requirements of a jury ttial. Ojne of those requirements

I

was unanimity." Id. The Supreme Court has repeatedly and over many

years recognized that the Sixth Amendment requires unanimity. And

this requirement applies to state and federal criminal trials

equally.

j

In Haywood-Watson's case, he was convicted by a jury that was

non-unanimous as to which two or more ac|ts of sexual abuse was al­

legedly committed. In the charge of the 'court on guilt-innocence,

the jury was authorized to render and return a verdict without be­

ing unanimous as to the individual acts jof sexual abuse that make

up the series Of acts for an essential element of the offense.

Thus, the jury can find that up to 24 acts occurred (12 jurors

times 2 different acts per juror) and stllll obtain a conviction

under Texas Penal Code § 21.02. Based on; the new constitutional

rule, § 21.02(d) is unconstitutional.

!

Under Texas law, each alleged act of sexual abuse standing

appellant's amended motion for rehearing

;

HAYW00D~WATS0N V. STATE - 3

k.

alone constitutes an alleged offense under Penal Code § 21.021,

Aggravated Sexual Assault, or § 21.11, Indecency With a Child,

among other statutes. For the most part "Texas law requires that

a jury reach a Unanimous verdict about the specific crime that the

defendant committed. This means that the jury must ’agree upon a

single and discrete incident that would constitute the commission

of the offense alleged. '" Cosio v. State', 353 S.W.3d 766, 771-72

(Tex.Grim.App. 2011). In short, the "commits two or more acts of

sexual abuse" element of Continuous Sexual Abuse of Young Child

is not the manner and means of committing the offense, but are

seperate and distinct offenses that requjire jury unanimity.

The reasoning of the Supreme Court of Hawai' i in State v.

Rabago, 81 P.3d 1151 (Haw. 2003), which struck down the state's

similar Statute,.is persuasive and should be followed by this

Court because the Hawai'i court recognized under the state's case

law that the underlying acts are seperate and distinct offenses.

Id., at 1168.

In Dixon v. State, 20l S.W.3d 731 (TLx.Crira.App. 2006), three

dissenting judges oh this Court predicted that the Legislature

would pass a statute that would allow jurors to convict on as many

as 12 different acts. Jd., at 738-39 (Price, J., dissenting, joined

by Meyers and Johnson, JJ.). Actually, the Legislature passed a

statute which doubles that number, for 24 different acts may be

found to have occurred to secure a conviction under the continuous

abuse statute. This Court should grant review to decide this important, recurring question of whether the continuous abuse stat­

ute violates the constitutional requirement for jury unanimity.

APPELLANT'S AMENDED MOTION FOR REHEARING

HAYW00D-WATSON V. STATE - 4

PRAYER

Ricky Haywood-Watson, Appellant, prays that this Court grant

this motion for rehearing, set aside the refusal, resubmit this

cause for another hearing before the Court, reverse the judgment

and sentence in Cause No. 1494189, and render a judgment of ac­

quittal. Alternatively, Haywood-Watson requests that the case be

remanded to the trial court for a new trial.

Respectfully • submitted,

Dated: July 6, 2020

RICKY HAY1

WATSON

: APPELLANT

TDCJ No. 2206869

1 Barry B. Telford Unit

1 3899 State Highway 98

New Boston, Texas 75570

Main Phone:(903)628-3171

CERTIFICATE OF COMPLIANCE

This is to certify that the above motion for rehearing com­

plies with Texas Rules of Appellate Procedure 79.2(c) in the fol­

lowing respects: (1) the ground on which the above motion is based

is limited to intervening circumstances of substantial or con­

trolling affect; and (2) this motion is presented in good faith

and not to delay.

Dated: July 6, 2020

la

RICKY' HATfitOOD-WATSON

APPELLANT

APPELLANT'S AMENDED MOTION FOR REHEARING

HAYWOOD-WATSON V. STATE “ 5

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the forego*ing motion was served by placing same in the United States Mail,

>

first-class psoatge prepaid, On the 6th day of July, 2020, ad­

dressed to:;

Kim K. Ogg, District Attorney

500 Jefferson Street, Suite 600

Houston, Texas 77002

State Prosecuting Attorney

P.0. Box 13046

Austin, Texas 78711-3046

rick/ HAYWOOD-WATSON

APPELLANT

i

i

appellant's amended motion for rehearing

HAYWOOD-WATSON V. STATE - 6

APPENDIX F

OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

FILE COPY

COA No. 14-18-00547-CR

7/14/2020

HAYWOOD-WATSON, RICKY Tr. Ct. No. 1494189

PD-0370-20

On this day, the Appellant’s pro se motion for leave to file an amended petition for

discretionary review has been granted.

Deana Williamson, Clerk

RICKY HAYWOOD-WATSON

TELFORD UNIT - TDC # 2206869

3899 STATE HWY 98

NEW BOSTON, TX 75570

APPENDIX G

\l

OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS FILE COPY

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

8/19/2020

14-18-00547-CR

HAYWOOD-WATSON, RICKY Tr. Ct. No. 1494189

PD-0370-20

On this day, the Appellant’s Pro Se motion for rehearing has been denied.

Deana Williamson, Clerk

RICKY HAYWOOD-WATSON

TELFORD UNIT - TDC # 2206869

3899 STATE HWY 98

NEW BOSTON, TX 75570

APPENDIX H

PENAL CODE

TITLE 5. OFFENSES AGAINST THE PERSON

CHAPTER 21. SEXUAL OFFENSES

Sec. 21.01. DEFINITIONS.

In this chapter:

(1)

"Deviate sexual intercourse" means:

(A)

any contact between any part of the genitals of one

person and the mouth or anus of another person; or

(B) the penetration of the genitals or the anus of another

person with an object.

(2)

"Sexual contact" means, except as provided by Section

21.11, any touching of the anus, breast, or any part of the genitals of

another person with intent to arouse or gratify the sexual desire of any

person.

(3)

"Sexual intercourse" means any penetration of the female

sex organ by the male sex organ.

(4)

"Spouse" means a person to whom a person is legally married

under Subtitle A, Title 1, Family Code, or a comparable law of another

jurisdiction.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1979, 66th Leg., p. 373, ch. 168, Sec. 1, eff. Aug. 27,

1979; Acts 1981, 67th Leg., p. 203, ch. 96, Sec. 3, eff. Sept. 1, 1981;

Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2001,

77th Leg., ch. 739, Sec. 1, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.124, eff. September

1, 2005.

Sec. 21.02. CONTINUOUS SEXUAL ABUSE OF YOUNG CHILD OR CHILDREN.

(a)

In this section, "child" has the meaning assigned by Section

22.011(c).

(b)

A person commits an offense if:

during a period that is 30 or more days in duration, the

(1)

person commits two or more acts of sexual abuse, regardless of whether

the acts of sexual abuse are committed against one or more victims; and

(2)

at the time of the commission of each of the acts of sexual

abuse, the actor is 17 years of age or older and the victim is a child

younger than 14 years of age, regardless of whether the actor knows the

age of the victim at the time of the offense.

(c)

For purposes of this section, "act of sexual abuse" means any

act that is a violation of one or more of the following penal laws:

aggravated kidnapping under Section 20.04(a)(4), if the

(1)

actor committed the offense with the intent to violate or abuse the

victim sexually;

(2)

indecency with a child under Section 21.11(a)(1), if the

actor committed the offense in a manner other than by touching, including

touching through clothing, the breast of a child;

(3)

sexual assault under Section 22.011;

(4)

aggravated sexual assault under Section 22.021;

(5) burglary under Section 30.02, if the offense is punishable

under Subsection (d) of that section and the actor committed the offense

with the intent to commit an offense listed in Subdivisions (l)-(4);

(6)

sexual performance by a child under Section 43.25;

(7)

trafficking of persons under Section 20A.02(a)(7) or (8);

and

(8)

compelling prostitution under Section 43.05(a)(2).

(d)

If a jury is the trier of fact, members of the jury are not

required to agree unanimously on which specific acts of sexual abuse were

committed by the defendant or the exact date when those acts were

committed. The jury must agree unanimously that the defendant, during a

period that is 30 or more days in duration, committed two or more acts of

sexual abuse.

(e) A defendant may not be convicted in the same criminal action of

an offense listed under Subsection (c) the victim of which is the same

victim as a victim of the offense alleged under Subsection (b) unless the

offense listed in Subsection (c):

(1)

(2)

is charged in the alternative;

occurred outside the period in which the offense alleged

under Subsection (b) was committed; or

(3)

is considered by the trier of fact to be a lesser included

offense of the offense alleged under Subsection (b).

(f)

A defendant may not be charged with more than one count under

Subsection (b) if all of the specific acts of sexual abuse that are

alleged to have been committed are alleged to have been committed against

a single victim.

It is an affirmative defense to prosecution under this section

(g)

that the actor:

(1) was not more than five years older than:

(A)

the victim of the offense, if the offense is alleged

to have been committed against only one victim; or

(B)

the youngest victim of the offense, if the offense is

alleged to have been committed against more than one victim;

(2) did not use duress, force, or a threat against a victim at

the time of the commission of any of the acts of sexual abuse alleged as

an element of the offense; and

(3) at the time of the commission of any of the acts of sexual

abuse alleged as an element of the offense:

(A) was not required under Chapter 62, Code of Criminal

Procedure, to register for life as a sex offender; or

was not a person who under Chapter 62 had a reportable

(B)

conviction or adjudication for an offense under this section or an act of

sexual abuse as described by Subsection (c).

(h) An offense under this section is a felony of the first degree,

punishable by imprisonment in the Texas Department of Criminal Justice

for life, or for any term of not more than 99 years or less than 25

years.

Added by Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 1.17, eff.

September 1, 2007.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1 (S.B. 24), Sec. 6.04, eff.

September 1, 2011.

Acts 2017, 85th Leg., R.S., Ch. 685 (H.B. 29), Sec. 31, eff.

September 1, 2017.

Acts 2017, 85th Leg., R.S., Ch. 1038 (H.B. 1808), Sec. 2, eff.

September 1, 2017.