Shockley, John David ( 2015 )

WR-49,642-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/28/2015 3:43:46 PM
Accepted 10/28/2015 3:54:30 PM
WR-49,642-02 ABEL ACOSTA
CLERK
W11-51734-T(A)
RECEIVED
EX PARTE § IN THE COURT
COURT OF APPEALS
OF CRIMINAL
§ 10/28/2015
ABEL ACOSTA, CLERK
§ CRIMINAL APPEALS
§
JOHN SHOCKLEY § OF TEXAS
OBJECTIONS TO THE TRIAL COURT’S ORDER ON
SHOCKLEY’S APPLICATION FOR A WRIT OF HABEAS CORPUS
In Shockley’s Application for a Writ of Habeas Corpus, he argued that his
counsel was ineffective in advising him not to testify at the guilt phase of his trial for
aggravated robbery because he was the only person who could have provided evidence
that the “gun” used in the robbery was in fact a toy. See TEX. PEN. CODE § 29.03 (a
person commits the offense of aggravated robbery if, among other alternatives, he
commits robbery and uses or exhibits a deadly weapon). The trial court agreed that
counsel’s performance was deficient. The court determined that Shockley was not
prejudiced by his counsel’s deficient representation, though, because, in light of
Shockley’s criminal history, he was subject to the same sentencing range regardless
of whether he was convicted of aggravated robbery or robbery. And because the court
did hear the toy-gun evidence, albeit at punishment, and ostensibly factored it into
its sentencing decision, the court reasoned counsel’s failure made no difference.
The court was wrong. Even if Shockley’s sentence would have been the same
number of years, had the evidence been admitted at the guilt phase of trial, and
Shockley been convicted only of robbery, he would be eligible for parole when his
actual calendar time served plus good conduct time equals one-fourth of the sentence
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imposed. See TEX. GOV'T CODE § 508.145(f). Because the evidence was only presented
at punishment, however, Shockley is not eligible for release on parole until his actual
calendar time served, without consideration of good conduct time, equals one-half of
the sentence. See TEX. GOV'T CODE § 508.145(d)(1); TEX. CODE CRIM. PROC. art. 42.12
§3g(a)(1)(F). Thus, in this instance, where Shockley was sentenced to 35 years’
imprisonment, counsel’s deficient performance resulted in a delay in parole eligibility
of 8.75 years. Certainly, this was prejudicial. See, e.g., Ex parte Scott, 581 S.W.2d 181
(Tex. Crim. App. 1979) (where counsel’s failure raised the possible punishment from
twelve years to life imprisonment, counsel’s deficient performance was prejudicial);
cf. Ex Parte Moussazadeh, 361 S.W.3d 684, 692 (Tex. Crim. App. 2012) (counsel’s
failure to inform defendant that he would not be eligible for parole until one-half of
his sentence was served, rather than one-fourth, was deficient and prejudicial).
Accordingly, Shockley objects to the district court’s order concluding otherwise.
For these reasons, and all those urged in Shockley’s original memorandum in
support of his application for a writ of habeas corpus, Shockley respectfully requests
this Court to reject the district court’s recommendation, and to find that that his
conviction for aggravated robbery illegally confines and restrains him of his liberty.
His conviction was had only upon an involuntary plea and the ineffective assistance
of his counsel. This Court should thus issue the Writ of Habeas Corpus, set aside his
conviction, and remand the case for a new trial. See, e.g., Strickland v. Washington,
466 U.S. 668, 694, (1984).
Respectfully submitted,
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/s/ Bruce Anton
BRUCE ANTON
Bar Card No. 01274700
ba@sualaw.com
/s/ Brett Ordiway
BRETT ORDIWAY
State Bar No. 24079086
bordiway@sualaw.com
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road, Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)
Counsel for Applicant
Certificate of Service
I, the undersigned, hereby certify that a true and correct copy of the foregoing
Objections to the Trial Court’s Order on Shockley’s Application for a Writ of Habeas
Corpus was mailed to the Dallas County District Attorney’s Office and the 283rd
Judicial District Court of Dallas County on October 28, 2015.
/s/ Bruce Anton
Bruce Anton
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