Ozuna, Joshua James ( 2015 )

PD-1355-15
PD-1355-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/26/2015 10:52:28 PM
Accepted 10/27/2015 4:55:38 PM
IN THE CRIMINAL COURT OF ABEL ACOSTA
CLERK
FOR THE STATE OF TEXAS
Case No. ______________________
JOSHUA JAMES OZUNA
Vs.
THE STATE OF TEXAS
Appeal from the 13th Court of Appeals
Val Verde County, Texas
Case No. 13-14-00734-CR
Appeal from the County Court at Law
Kerr County, Texas
Trial Court No. CR14-0258
Honorable Spencer Brown Presiding, Respondent
PETITION FOR DISCRETIONARY REVIEW
ORAL ARGUMENT REQUESTED
October 27, 2015
OSCAR L. CANTU, JR.
Attorney at Law, P.L.L.C.
507 South Main
San Antonio, Texas 78204 (210)472-3900 Phone
(210)354-2996 Fax
R3Oscar@aol.com
IN THE CRIMINAL COURT OF APPEALS
FOR THE STATE OF TEXAS
Case No. ______________________
JOSHUA JAMES OZUNA
vs.
THE STATE OF TEXAS
CERTIFICATE OF PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.1, Appellee certifies the
following parties and names is a complete list of litigants and counsels in this
matter:
Joshua James Ozuna, Appellant The State of Texas, Appellee
401 Clearwater County Attorney’s Office
San Antonio, TX 78204 700 Main St. BA-103
Appellant Kerrville, TX 782028-2215
Appellee
Oscar L. Cantu, Jr.
Counsel for Appellant Hon. Spencer Brown
c/o OSCAR L. CANTU, JR. County Court at Law
Attorney at Law, PLLC Kerr County Courthouse
507 S Main 700 Main St.
San Antonio, TX 78204 Kerrville, TX 78028
__/s/ by Oscar L. Cantu, Jr._____
Oscar “JR” Cantu
Pg. 2
TABLE OF CONTENTS
NAMES OF PARTIES 2
REQUEST FOR ORAL ARGUMENT 7
TABLEOFCONTENTS 4
INDEX OF AUTHORITIES 5-6
INTRODUCTION 7
STATEMENT OF THE NATURE OF THE CASE 7
STATEMENT OF PROCEDURAL HISTORY 7
GROUNDS FOR REVIEW 8
ARGUMENT OF JUDGMENT 8-11
ISSUE ONE 12
ISSUE TWO 17
PRAYER 20
CERTIFICATE OF SERVICE 21
APPENDIX
Judgment 13th Court of Appeals 1-7
Pg. 3
INDEX OF AUTHORITIES
Ex parte Beck, 922 S.W.2d 181, 182(Tex.Crim.App. 1996); 19
Bone v. State, 77 S.W.3d 828 (Tex. Crim. App., 2002) 10
Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L.Ed.2d
108(1976) 12
Brown v. State, 974 S.W.2d 289, 292 (Tex.App.- San Antonio
1998, pet. ref'd) 13
John Bustamante Mendez vs. The State of Texas, 138 S.W.3d 334
(Tex.Crim.App. 2004) 14
Fuentes v. Shevin, 407 U.S. 67, 80(1972) 16
Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. 1979) 15
Jagaroo v. State, 180 S.W.3d 793, 802 (Tex. App.—Houston
[14th Disk] 2005, pet. ref'd) 16
McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996) 13
Ex parte McIver, 586 S.W.2d 851, 854 (Tex.Crim.App. 1979) 19
Misell v. State, 119 S.W.3d 804(Tex.Crim.App. 2003) 19
Ex parte Pena, 71 S.W.3d at 337 n 4, 338 19
Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003)
overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335
(Tex. Crim. App. 2007)
Ex parte Pritzkau, 391 S.W.3d 185, 186 (Tex. App.-Beaumont
2012, no pet.) 17
Ex parte Roberts, 409 S.W.3d 759, 762 (Tex. App.-San Antonio
2013, no pet.) 17
Pg. 4
Producer’s Const. Co. v. Muegge, 669 S.W.2d 717, 718-19
(Tex.1984) 16
Rankin v. State, 904 S.W.2d 707 (Tex. Crim. App. 1996) 14
Ex parte Seidel, 39 S.W.3d 221, 225 n. 4(Tex.Crim. App. 2001) 19
Smith v. State, No. 996-98, 1999 WL 415336 (Tex. Crim. App.
June 23, 1999) 14
Soeffe v. Jones, 270 S.W.3d 617, 625(Tex.App.-San Antonio
2008, no pet) 16
Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984) 11
Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999) 11
Whatley v Jones, (Tex. App. 2013) 16
Ex Parte Weinstein, No. WR– 78, 989–01, 2014 WL 300802 at*5 17
(Tex. Crim. App. Jan. 29, 2014)
OTHER
TEX.CODE CRIM. PROC. Art. 26.14 15
Texas Constitution Article 1 §10 16
Texas Constitution, Article 1 §19 16
Texas Rules of Criminal Evidence 403 and 404(b) 12
Texas Penal Code § 12.21 19
U.S. Const. amend XIV §1 16
Pg. 5
IN THE CRIMINAL COURT OF
FOR THE STATE OF TEXAS
Case No. ______________________
JOSHUA JAMES OZUNA
Vs.
THE STATE OF TEXAS
Appeal from the 13th Court of Appeals
Val Verde County, Texas
Case No. 13-14-00734-CR
Appeal from the County Court at Law
Kerr County, Texas
Trial Court No. CR14-0258
Honorable Spencer Brown Presiding, Respondent
PETITION FOR DISCRETIONARY REVIEW
OSCAR L. CANTU, JR.
Attorney at Law, P.L.L.C.
507 South Main
San Antonio, Texas 78204
(210)472-3900 Phone
(210)354-2996 Fax
R3Oscar@aol.com
Pg. 6
TO THE CRIMINAL COURT OF APPEALS:
Appellant, Joshua James Ozuna, submits this Petition for Discretionary Review
in appeal of a Judgment and Sentence in a misdemeanor criminal proceeding. This
Appeal is from the Thirteenth Court of Appeals (reassigned by Court Order) and
originally from the County Court at Law of Kerr County, the Honorable Spencer
Brown presiding, in which Appellant was charged with Possession of Marijuana less
than 2oz in a Drug Free Zone.
STATEMENT REGARDING ORAL ARGUMENT
Appellant is convinced that oral argument is necessary to clarify the extreme
nature of the allegations in this appeal and to eliminate confusion as how these events
might have occurred. The Court of Appeals denied oral argument and made the same
assumptions of the Trial Court which gave rise to mistakes and to this appeal.
STATEMENT OF THE NATURE OF THE CASE
This is an appeal from the denial of a motion for new trial by operation of law.
(CR doc 11). Kerr County jailed a young black Texan without plea, trial, evidence, a
court reporter’s record of the trial, plea or waiver or paperwork other than the usual
judgment form listing a trial date.
STATEMENT OF PROCEDURAL HISTORY
The Thirteenth Court of Appeals affirmed the conviction of Joshua James
Ozuna on September 17, 2015. No motion for rehearing was filed or otherwise ruled
Pg. 7
upon by the Court of Appeals.
GROUNDS FOR REVIEW
The Thirteenth Court of Appeals has issued a judgment which raises three (3)
grounds for review under Texas Rules of Appellate Procedure 66.3. The first is (a) the
judgment conflicts with another court of appeals decision on the same point as well as
its own; The second is (c) the judgment decides an important question of both state and
federal law in a way that conflicts with the applicable decisions of the Court of
Criminal Appeals and the Supreme Court of the United States; The third is (f) the
Thirteenth Court of Appeals has so far departed from the accepted and usual course of
judicial proceedings and sanctioned such a departure by the lower court as to call for
an exercise of the Court of Criminal Appeals’ power of supervision.
ARGUMENT
The initial introduction by the Court of Appeals illustrates the problem with the
judgment. The Court opens with:
Appellant Joshua James Ozuna pleaded nolo contendere to
possession of less than two ounces of marihuana in a drug-free zone, a
Class A misdemeanor offense.
See Appendix entry 1. Judgment page 1
This conclusion is an assumption entirely based upon the self-serving precept that the
document which use the word “trial” and “plea” are definitive proof that they occurred.
The Court of Appeals statement demonstrates that it is assuming a “plea” or that the
Pg. 8
Defendant “pleaded” as the Judgment form document used by the Trial Court claimed.
The Court of Appeals overlooks the fact that no record or document is in the docket of
the appeal to support that conclusion.
The judgment in this case affirms a conviction without court reporter’s records
and exhibits. No one disputes what the sentence was-because there is a record to quote
from. What is in dispute is whether or not the Defendant ever made a voluntary waiver
of his rights, actually pleaded, and was sentenced properly. What this record does
reveal is a heated dispute, silencing of the record, resumption of proceedings and the
sentence being pronounced.
Paradigm used by the Court: Assumption that things occurred absent record
The Court does admit that there is neither a reporter’s record of such a plea or
documents upon which to defend the conviction with. It then places the burden to
prove that no trial occurred squarely upon the Defendant but misapplies prior decisions
or does not examine issues on appeal. The Defendant must prove a negative to sustain
the Court’s analysis. Appellant asserts it is the State who should be proving the
conviction as valid and defensible1. As the Court notes that the Clerk’s record is “silent
as to the circumstances of the offense.” See Judgment page 1.
The Court of Appels applies this analysis requiring the Defendant to explain
both an empty record on appeal and each of the two stated issues; 1)Having a visible
1 The Court of Appeals makes no reflection upon the fact that the newly elected County Attorney waives her right to
file a brief defending this conviction.
Pg. 9
lawyer present with a voice pointing out the most elemental errors would have made a
difference and 2) that the complete lack of any statement, word, record, document or
evidence for a Reviewing Court to see is, in fact, evidence that a trial did not happen,
that a knowing intelligent waiver was not made, and that it is a complete abuse of
discretion to deny this young man effective counsel.
In its comment examining what little record does exist, the Court demonstrates a
determination to place the burden upon the appellant to prove why the record usually
found in any criminal case is absent and had he (Defendant) been allowed other
counsel he would have a different outcome.
“The reporter’s record reflects the sentencing hearing and
consists of two-and-a-half pages. At the end of the sentencing hearing,
after the trial court has assessed punishment, appellant responded,
“Okay. That’s cool.” Appellant’s mother attempted to raise an issue
regarding appellant’s “other new attorney,” but the State objected and
the trial court did not permit any further discussion.
Here, the sparse record is completely silent on the actions or
alleged omissions of appellant’s court-appointed counsel. The record
contains nothing to support appellant’s claims. We conclude that
appellant’s allegations of ineffectiveness are not firmly founded in the
record. See Bone, 77 S.W.3d at 835.”
When the record has no proof that Appellant’s attorney was even present,
Appellant asserts that fact is evidence of the degree of representation received-
none. The Thirteenth Court of Appeals disagrees, it seems to argue that the
Defendant need first prove that if he had a Counsel who was there, seen and heard
it would have made a difference.
Pg. 10
That is not the standard quoted by the Court and the Appellant in Strickland
v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052,80 L. Ed. 2d 674 (1984) The
standard agreed to is that the conduct of Counsel is so far below that expected from
a reasonable attorney. No action or bad lawyering by omission is undeniably so far
below the standards of reasonable behavior anywhere else but in this Judgment.
The Court of Appeals ignores Strickland and Thompson v. State placing in dispute
long established Federal and State case law. Once again, there a pervasive and
overpowering assumption that a trial did happen, there was a plea, there was a
knowing and intelligent waiver of rights and that there is evidence to defend the
conviction with.
This same standard of noting the absence of required proof in the record is
not evidence of deficiency is applied by the Court in issue two-No Trial No
Waiver. The Appellant asserts that no evidence in the record of any of the required
elements of a proper plea and sentencing i.e. a trial is reasonable proof that there
was none. The Thirteenth Court of Appeals makes the circular argument that when
the Defendant argues that there is no proof in the record, he must lose the appeal
because he offers “no evidence” of this fact? The Court diverges from standard
case law regarding abuse of discretion and what constitutes a valid waiver with no
justification whatsoever. There mere fact that the Appellant does not prove the
absence of required documents, testimony and exhibits means he must lose.
Pg. 11
Whether or not the Trial Court abused its discretion and proceeded despite a
timely, valid and reasonable request of the Defendant not to, is not questioned by
the Court of Appeals or seems to require review at all.
ISSUES PRESENTED FOR REVIEW
ISSUE ONE The Defendant was irrefutably denied effective assistance of counsel when his
Court Appointed Counsel failed to file any motions, refused to withdraw, failed to tender a
defense and allowed the Defendant to be adjudicated “guilty” and sentenced to a term of
incarceration in the County Jail without: a) waiver of jury trial; b) admission of guilt; c) plea
bargain or agreement; d) a trial of any kind; and did not utter one word of protest or objection
on his client’s behalf to any of the above items or to e) the lack of evidence upon which the
judgment of conviction was based.2
ISSUE TWO The trial court did commit clear error when it sentenced the Defendant to
a term in the County Jail without benefit of trial or waiver of same.3
ISSUE NO. 1(Restated)
The Appellant's primary point of error is a direct attack upon the lack of any
legal assistance by his Court Appointed Attorney. The facts regarding no defense or
advocacy are irrefutable as they are stark and absent. The omissions of his Counsel are
so clearly beyond acceptable behavior, indefensible and taken overall constitute a
complete lack of any defense or professional representation. The Court of Appeals
concedes the record is “silent” but concludes Ozuna failed to prove another or at least a
Counsel would be any different.
2 The record if void of any evidence admitted in this case from the former County Attorney’s Office (The State) The
only way the 13th Court of Appeals knows what the conviction is for is by way of the Judgment-a form universally
filled out and submitted with every conviction.
3 A finding of “Guilt” must be assumed from the judgment as no such finding appears anywhere in the transcript of a
proceeding of any kind nor mention of the word “guilt” at sentencing.(RR pgs.3-5)
Pg. 12
STANDARDS
In order to prevail on an ineffective assistance of counsel point of error,
Appellant Ozuna must demonstrate by a preponderance of the evidence that: (1)
counsel's performance was so deficient as to fall below an objective standard of
reasonableness; and (2) he was prejudiced, i.e., a reasonable probability exists that
but for counsel's unprofessional errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). The
constitutional right to effective assistance does not mean errorless counsel. See
Brown v. State, 974 S.W.2d 289, 292 (Tex.App.- San Antonio 1998, pet. ref'd).
Ozuna must overcome the presumption that trial counsel rendered adequate
assistance, and it is incumbent on him to identify those acts or omissions which do
not amount to reasonable professional judgment. See Strickland, 466 U.S. at 689,
104 S. Ct. 2052
In this case there is absolutely nothing to prove his Counsel was even
present. That fact is ignored by the Court of Appeals and blame falls upon the
Appellant for failing to prove he is deserving of more. There the Court concludes
that nevertheless, even under this stringent burden, ineffectiveness of counsel does
exist when the effect of trial counsel’s errors undermines the concept of a fair trial.
See Brown, 974 S.W.2d at 292. Joshua Ozuna did not receive a fair trial, the record
Pg. 13
has not evidence to say so and no proof his attorney exists.
The one thing the Counsel did do was to request a pre-sentencing report (PSR)
on July 8, 2014.4 Why this was done when there is no plea entered on the same date
we do not know. What is absent is a court reporter’s record reflecting a plea or waiver
on that date.
So the one action taken by Appellant’s Counsel is negated by his apparent
failure to read it prior to October 10, 2014 or to make objections on the record at
sentencing. What would be reasonable is to object under Texas Rules of Criminal
Evidence 403 and 404(b) is that evidence of out of county arrests is prejudicial and
not admissible at time of trial. See Rankin v. State, 904 S.W.2d 707 (Tex. Crim.
App. 1996) and Smith v. State, No. 996-98, 1999 WL 415336 (Tex. Crim. App.
June 23, 1999)
Noted above, Counsel failed to obtain or object to the lack of a waiver of a jury
trial which is an absolute right of the Appellant. See Texas Constitution Article 1
section 10. Any mention by the State of a waiver during the sentencing hearing must
nevertheless withstand strict scrutiny in this appeal. The High Court sets forth a
delineated decision regarding waiver of rights in the case John Bustamante Mendez
vs. The State of Texas, 138 S.W.3d 334 (Tex.Crim.App. 2004Citing Brady v.
United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L.Ed.2d 108(1976)
4 This date conflicts with the Court of Appeals notes regarding a “trial date.” The Court cites the Judgment which
clearly states a trial occurred on October 14, 2014 but there is no record of trial proceedings only sentencing and
request not to continue.
Pg. 14
The decision whether or not a person is competent and making a voluntary
waiver is made by the trial Judge. However, the burden in making that
determination is clearly high as the Court cannot proceed when such factors are
unclear. Specifically, the Bustamante Court indicated that:
“The Court may not accept a plea other than not guilty unless it
appears that the defendant is mentally competent and the plea is
free and voluntary. Citing TEX.CODE CRIM. PROC. Art. 26.14”
Bustamante at 337.
Thus, the burden to make the determination as to whether or not the
defendant is making a knowing and voluntary plea is upon the Court. Until that
decision is made, there is no requirement that the Defendant act or prove anything
regarding his knowing or intelligent waiver.
Appellant asserted to the Court of Appeals that the reasonable defense attorney
could have noted that the Defendant (Appellant) has the absolute right to withdraw his
desire to plea any time before the trial court renders judgment or takes the case under
advisement5. Courts of Appeals have demonstrated this repeatedly. San Antonio’s 4th
Court of Appeals is no exception. In a prior case the Court held:
A defendant may withdraw his plea as a matter of right, without assigning
a reason, until judgment is pronounced or the case is taken under advisement
by the trial court. Jackson v. State,590 S.W.2d 514, 515 (Tex.Crim.App.
1979).
There is no evidence in existence to deny a victory to the Appellant during a
5Counsel is not conceding that the Appellant ever plead. Merely that the Court believed so mistakenly when
viewing the PSR ordered in July. Nevertheless, the right to withdraw even a fictional plea remains intact.
Pg. 15
Jury trial or it would be in this record. Again, that is proof or evidence of a
different outcome. Even the Court of Appeals conceded that the Defendant made
his stated desire not to proceed known and it was overruled by the Court. Judgment
page 2.
This Judgment conflicts with another issued by the same court. Previously
the guarantee of all Texas citizens to a jury trial of their peers listed in Article 1
§10 of the Texas Constitution was found as the primary issue on appeal in a civil
case before the Thirteenth Court of Appeals.
In the matter of Richard Whatley vs. O.F. Jones, III, the Thirteenth Court of
Appeal was faced with a civil appellant who was deprived of an actual “trial” prior
to the rendering of a judgment against him. There, the Court held that:
“The United States Constitution provides that a person shall not be deprived
of life, liberty, or property without due process of law. U.S. Const. amend
XIV, § 1; see Tex.Const. art. 1§19. Fundamental to the concept of due
process is the right to be heard.” Citing Fuentes v. Shevin, 407 U.S. 67,
80(1972). “The right to be heard includes the right to a full and fair hearing
before a court having jurisdiction over the matter. “ Citing Soeffe v. Jones,
270 S.W.3d 617, 625(Tex.App.-San Antonio 2008, no pet). “Complete
denial of the opportunity to present any evidence is a clear violation of due
process.” Citing Producer’s Const. Co. v. Muegge, 669 S.W.2d 717, 718-
19(Tex.1984)
See Whatley v Jones, (Tex. App. 2013)
There is no argument using the record that there was no trial, no offer of
proof by the County and other than asking Mr. Ozuna “what he thought” about the
events recorded on his pre-sentencing report, there was no opportunity for Mr.
Pg. 16
Ozuna to either contest or present evidence in his defense. The only question is
what would a reasonable defense attorney do?
The second part of analysis in this appeal is whether or not the actions or
omissions of the Appellant’s Appointed Counsel prejudiced him? But for the lack
of a defense or advice from his attorney, the defendant would not have been found
guilty on October 10, 2014 or served forty (40) days in the County Jail.
ISSUE TWO (restated) The trial court did commit clear error when it sentenced the
Defendant to a term in the County Jail without benefit of trial or waiver of same.
The Appellant’s second argument is that the sentence imposed by the Court is
illegal as it was adjudged without a plea or trial. Thus the pre-requisite of being
“adjudged” is not met under the statute notwithstanding all of the constitutional violations
made above. § 12.21 of the Texas Penal Code states that:
“an individual adjudged guilty of a Class A misdemeanor shall be punished
by:
A fine not to exceed $4000.00
Confinement in jail for a term not to exceed one year; or
Both such fine and confinement.”
Tex.P.C. § 12.21
As explained above, the record is absent any trial proceeding, plea agreement,
guilty plea or finding of “guilt” by the Court. There is no adjudication as required by the
statute. While the time and fine limits are not violated herein, the prerequisite of due
process and a simple adjudication of guilt is not done either. Given the lack of compliance
with statute, the sentence is illegal.
Pg. 17
In determining whether or not a trial occurred, the Court of Appeals
looks to subsequent documents to support this assumption. The mere
appearance of the word “trial” in the judgment is sufficient evidence of the
existence and sufficiency of the required constitutional rights satisfaction-
record to the contrary. The Court notes that:
“By his second issue, appellant contends that the sentence
imposed by the trial court was “illegal as it was adjudged without a
plea or trial.” Appellant argues that there was “no adjudication” of
guilt.
We disagree. The clerk’s record contains the “Judgment and
Sentence by Court,” which stated, in relevant part:
On October 14, 2014, the above-styled and numbered cause
came before the Court for sentencing after a Pre-Sentence Investigation
had been ordered. The Defendant having pled open to the Court to the
allegations in the State’s complaint and information, the Court having
reviewed the pre- sentence investigation report, hereby orders as
follows:
On October 14, 2014, this case came before the Court for
review of the Pre-Sentence Investigation report and for sentencing.
Evidence was presented by the parties and by probation; and the cause
was submitted to the judge for sentencing.
The defendant is hereby adjudged GUILTY of the offense of
Possession of Marijuana in a Drug Free Zone, and having pled Nolo
Contendere to the Class A misdemeanor, the date of the offense being
JANUARY 8, 2014.”
Judgment page 6
Simply the fact that the judgment says that the “Defendant pled open to the
Court…” and “…to the allegations in the State’s Complaint and information” neither
of which appear in the record, and that “evidence was presented by the parties and by
Pg. 18
probation” none appears anywhere in this record on appeal, the Court of Appeals is
satisfied that the trial, waiver, and procedures did occur and the absence of proof and
case law Federal and State to the contrary is irrelevant. While the Appellant may have
the burden, there is clear determination to disregard the absence of minimal evidence
of standard procedural safeguards.
STANDARDS
The Criminal Court of Appeals explains the nature and standards in dealing with
“illegal sentence” cases. The norm is a sentence that is less than or more than the statute
dictates for a particular crime. In this case, the Appellant contends that a condition
requisite is not met-adjudication. In Mizell v. State the Appellant filed the appeal of a
conviction for both charges of official oppression and civil rights violations. However the
State countered with an issue on appeal regarding the amount of fine imposed by the jury.
There, the court set forth the basis for an illegal sentence review.
“A sentence that is outside the maximum or minimum range of punishment is
unauthorized by law and therefore illegal.” Citing Ex parte Seidel, 39 S.W.3d 221, 225 n.
4(Tex.Crim. App. 2001) “This Court has long held that a sentence is void when the
punishment is unauthorized.” Ex parte Beck, 922 S.W.2d 181, 182(Tex.Crim.App. 1996);
Ex parte McIver, 586 S.W.2d 851, 854(Tex.Crim.App. 1979) “A defendant may obtain
relief from an unauthorized sentence on direct appeal or by a writ of habeas corpus.”
Citing Ex parte Pena, 71 S.W.3d at 337 n 4, 338.
Mizell v. State, 119 S.W.3d 804, 806(Tex.Crim.App. 2003)
Despite the fact that the term of forty (40) days and One thousand two hundred
($1,200.00) is within both the range and amount allowed in §12.21, the third word
requires that a person be “adjudged” guilty. For all of the absent evidence normally
Pg. 19
contained in the record and argued by Appellant above, that requirement is not met. There
is no proof of any waiver, plea or trial as defined by our jurisprudence. Without
compliance with the statute the sentence is void and should be set aside by the Court of
Appeals.
PRAYER
The Appellant prays that the Court accepts this Voluntary Petition for Review
and Orders both Oral Argument and Briefing on these issues, ultimately reversing both
the Court of Appeals and the Trial’s Court’s judgment in this case and any further
relief in law or in equity that the Defendant may be so entitled to
Respectfully Submitted,
OSCAR L CANTU JR
Attorney at Law PLLC
507 South Main
San Antonio, Texas 78204
(210)472-3900 Phone
(210)354-2996 Fax
By:__/s/ by Oscar L. Cantu, Jr.____
Oscar “JR” Cantu
SBN 03767448
Pg. 20
CERTIFICATE OF COMPLIANCE
This is to certify that the undersigned Counsel does file this Petition in filed
in good faith and true. Further, this Counsel attests that the contents are within the
amount allowed by the TRAP and do not exceed 4,464 words om this computer
generated document with 14 point font used and 12 point footnotes.
____/s/by Oscar L. Cantu, Jr._____
Oscar “JR” Cantu
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this document has been
served upon all counsel of record via a manner in compliance with the TRAP and
TRCP on this, the 26th day of October, 2015 addressed as follows.
Joshua James Ozuna, Appellant The State of Texas, Appellee
401 Clearwater c/o County Attorney’s Office
San Antonio, TX 78204 Heather Stebbins
Appellant 700 Main St. BA-103
(email tawnyaozuna@hotmail.com) Kerrville, TX 78028-
2215
Appellee
Hon. Spencer Brown, Respondent
County Court at Law
Kerr County Courthouse
Kerrville, TX 78028
___/s/ by Oscar L. Cantu, Jr.______
Oscar “JR” Cantu
Pg. 21
APPENDIX
NUMBER 13-14-00734-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSHUA JAMES OZUNA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law
of Kerr County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Longoria
Memorandum Opinion by Justice Garza
Appellant Joshua James Ozuna pleaded nolo contendere to possession of less
than two ounces of marihuana in a drug-free zone, a Class A misdemeanor offense. See
TEX. HEALTH & SAFETY CODE ANN. §§ 481.121(a), (b)(1), 481.134 (West, Westlaw through
2015 R.S.).1 The trial court assessed punishment at forty days’ confinement in county jail
and a $1,200.00 fine, plus payment of court costs and attorney’s fees. Appellant appeals
from the denial of his motion for new trial. By two issues, appellant contends: (1) he was
denied effective assistance of counsel; and (2) the trial court erred by imposing a
sentence “without a plea or trial.” We affirm.
I. BACKGROUND2
The record is silent regarding the circumstances of the offense. The clerk’s record
contains a motion for new trial, submitted by appellant’s appellate counsel, which states:
COMES NOW, Counsel for the Defendant and files this Motion for New
Trial and would show unto the Court as follows:
1. This case was set for sentencing on October 14, 2014.
2. Defendant made known to his counsel, the District Attorney and the
Court that prior to sentencing he wished to retain alternate counsel.
3. Counsel Pat Phillips was previously appointed for the Defendant.
4. Defendant had released Mr. Phillips, informed Counsel of same and
retained Oscar Cantu.
5. Counsel moved to appear as Counsel of Record for the Defendant.
6. All parties initially denied knowledge of the events described above
then declined to allow the requested relief.
7. Defendant wished to withdraw his plea and tender a defense.
8. The Defendant has a viable defense to the charge(s) and no such
offer was made by his Court[-]appointed Counsel nor were any
motions filed on his behalf.
We note that section 481.134 of the Texas Health & Safety Code has been amended, but the
1
amendments are not applicable to this case.
2 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio pursuant
to an order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw
through 2015 R.S.). The State has not filed a brief to assist us in our disposition of this case.
2
Wherefore, premises considered, counsel moves this Court to Grant him a
new trial in this matter, allow him to withdraw his plea and to any further
relief, at law or in equity that he may be entitled to.
Appellant states that the motion was denied by operation of law.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review the denial of a motion for new trial under an abuse of discretion
standard. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004),
superseded in part on other grounds by TEX. R. APP. P. 21.8(b); Lewis v. State, 911
S.W.2d 1, 7 (Tex. Crim. App. 1995); Cueva v. State, 339 S.W.3d 839, 856–58 (Tex.
App.—Corpus Christi 2011, pet. ref'd). A trial court abuses its discretion by denying a
motion for new trial only when its decision is arbitrary or unreasonable, or when no
reasonable view of the record could support the trial court's ruling. Charles, 146 S.W.3d
at 208; Cueva, 339 S.W.3d at 856–58. The ruling of the trial court is presumed to be
correct, and it is the appellant's burden to establish the contrary. Jensen v. State, 66
S.W.3d 528, 545 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). The test for abuse of
discretion is whether the trial court acted without reference to any guiding rules or
principles, and “the mere fact that a trial court may decide a matter within its discretionary
authority differently than an appellate court does not demonstrate such an abuse.” State
v. Herndon, 215 S.W.3d 901, 907–08 (Tex. Crim. App. 2007) (quoting Howell v. State,
175 S.W.3d 786, 792 (Tex. Crim. App. 2005)). We do not substitute our judgment for that
of the trial court. Charles, 146 S.W.3d at 208.
“To obtain a reversal of a conviction under the Strickland test, a defendant must
show that: (1) counsel’s performance fell below an objective standard of reasonableness
and (2) counsel’s deficient performance prejudiced the defense, resulting in an unreliable
3
or fundamentally unfair outcome of the proceeding.” Davis v. State, 278 S.W.3d 346, 352
(Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
“Deficient performance means that ‘counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.’” Ex
parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.
at 687). “The prejudice prong of Strickland requires showing ‘a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different.’” Id. at 248 (quoting Strickland, 466 U.S. at 694). “‘A reasonable probability is
a probability sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland,
466 U.S. at 694). “[E]ach case must be judged on its own unique facts.” Davis, 278
S.W.3d at 353.
The burden is on appellant to prove ineffective assistance of counsel by a
preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). Appellant must overcome the strong presumption that counsel's conduct fell within
the wide range of reasonable professional assistance and that his actions could be
considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v. State, 216
S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing court will not
second-guess legitimate tactical decisions made by trial counsel. State v. Morales, 253
S.W.3d 686, 696 (Tex. Crim. App. 2008) ("[U]nless there is a record sufficient to
demonstrate that counsel’s conduct was not the product of a strategic or tactical decision,
a reviewing court should presume that trial counsel's performance was constitutionally
adequate . . . .”). Counsel’s effectiveness is judged by the totality of the representation,
not by isolated acts or omissions. Thompson, 9 S.W.3d at 813; Jaynes, 216 S.W.3d at
4
851. An allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d
828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 n.6.
II. DISCUSSION
A. Ineffective Assistance
By his first issue, appellant complains that he was denied effective assistance of
counsel. Specifically, he complains that his court-appointed counsel: (1) did not review
or challenge any evidence offered by the State; (2) requested a pre-sentencing report
that contained other alleged offenses; (3) did not object to the absence of any written
waiver of jury trial in the record; and (4) did not inform appellant that he had the right to
withdraw his plea any time before the trial court rendered judgment.
Of these complaints, the only one arguably raised to the trial court is that appellant
“wished to withdraw his plea and tender a defense.” The reporter’s record reflects the
sentencing hearing and consists of two-and-a-half pages. At the end of the sentencing
hearing, after the trial court has assessed punishment, appellant responded, “Okay.
That’s cool.” Appellant’s mother attempted to raise an issue regarding appellant’s “other
new attorney,” but the State objected and the trial court did not permit any further
discussion.
Here, the sparse record is completely silent on the actions or alleged omissions of
appellant’s court-appointed counsel. The record contains nothing to support appellant’s
claims. We conclude that appellant’s allegations of ineffectiveness are not firmly founded
in the record. See Bone, 77 S.W.3d at 835.
Moreover, appellant has not shown that there is a reasonable probability that but
5
for trial counsel's alleged errors, the result would have been different. Thompson, 9
S.W.3d at 812; see Strickland, 466 U.S. at 694. He argues only that, if appellant’s court-
appointed counsel had noted that there was no voluntary waiver form in the file, it would
have allowed sufficient time for appellant’s retained counsel to appear and provide a
defense. In his motion for new trial, appellant asserts that he “has a viable defense,” but
does not identify the defense. We hold that appellant has not met his burden to prove
ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9
S.W.3d at 813. We overrule appellant’s first issue.
B. No Trial or Waiver
By his second issue, appellant contends that the sentence imposed by the trial
court was “illegal as it was adjudged without a plea or trial.” Appellant argues that there
was “no adjudication” of guilt.
We disagree. The clerk’s record contains the “Judgment and Sentence by Court,”
which stated, in relevant part:
On October 14, 2014, the above-styled and numbered cause came
before the Court for sentencing after a Pre Sentence Investigation had been
ordered. The Defendant having pled open to the Court to the allegations in
the State’s complaint and information, the Court having reviewed the pre-
sentence investigation report, hereby orders as follows:
On October 14, 2014, this case came before the Court for review of
the Pre-Sentence Investigation report and for sentencing. Evidence was
presented by the parties and by probation; and the cause was submitted to
the judge for sentencing.
The defendant is hereby adjudged GUILTY of the offense of
Possession of Marijuana in a Drug Free Zone, and having pled Nolo
Contendere to the Class A misdemeanor, the date of the offense being
JANUARY 8, 2014.
The remainder of the judgment recites the punishment assessed by the court. In addition,
6
at the beginning of the sentencing hearing, the prosecutor informs the trial court that “we
pled the case and set it for a PSI.” The record reflects that appellant pleaded nolo
contendere and was adjudged guilty by the trial court. We overrule appellant’s second
issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
Dori C. Garza
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
17th day of September, 2015.
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