Stephen Albro, Jr. v. State ( 2014 )

ACCEPTED
12-14-00182-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/31/2014 4:06:08 PM
CATHY LUSK
CLERK
CAUSE NO. 12-14-00182-CR
FILED IN
12th COURT OF APPEALS
IN THE COURT OF APPEALS TYLER, TEXAS
FOR THE TWELFTH JUDICIAL DISTRICT
12/31/2014 4:06:08 PM
AT TYLER, TEXAS CATHY S. LUSK
Clerk
STEPHEN ALBRO JR.,
Appellant
V.
STATE OF TEXAS,
Appellee
ON APPEAL FROM CAUSE NO. 2013-0614
IN THE 217th JUDICIAL DISTRICT COURT OF
ANGELINA COUNTY, TEXAS
APPELLEE’S BRIEF
APRIL AYERS-PEREZ
Assistant District Attorney
Angelina County D.A.’s Office
P.O. Box 908
Lufkin, Texas 75902
(936) 632-5090 phone
(936) 637-2818 fax
State Bar No. 24090975
ORAL ARGUMENT NOT REQUESTED
Identity of Parties and Counsel
John Reeves Layne Thompson
Counsel for Stephen Albro, Jr. (trial) Attorney for the State (trial)
1007 Grant Street Angelina County District Attorney’s
Lufkin, Texas 75901 Office
P.O. Box 908
Albert J. Charanza Lufkin, Texas 75902
Counsel for Stephen Albro, Jr.
(appeal) April Ayers-Perez
P.O. Box 1825 Attorney for the State (appeal)
Lufkin, Texas 75902 Angelina County District Attorney’s
Office
Stephen Albro, Jr., TDCJ# 01940265 P.O. Box 908
Appellant Lufkin, Texas 75902
Goodman Unit
349 Private Road 8430
Jasper, Texas 75951
ii
Table of Contents
Identity of Parties and Counsel ................................................................................. ii
Table of Contents ..................................................................................................... iii
Index of Authorities ................................................................................................... v
Statement Regarding Oral Argument .......................................................................vi
Issues Presented ........................................................................................................vi
Reply Issue #1: Appellant’s trial counsel was not ineffective, and even
if he was, there was no harm to Appellant ...........................................vi
Reply Issue #2: Review of trial court’s denial of Appellant’s Motion
for New Trial is unnecessary ................................................................vi
Statement of Facts ...................................................................................................... 1
Summary of the Argument......................................................................................... 1
Argument.................................................................................................................... 3
Reply Issue #1: Trial counsel’s conduct did not fall below
professional standards, and even if they did, there was no harm
to the Appellant ..................................................................................... 3
Standard of review................................................................................. 3
Applicable law for presentence investigation reports........................... 4
Trial counsel’s performance did not fall below an objectively
reasonable standard .............................................................................. 4
Reply Issue #2 – Review of trial court’s denial of Appellant’s Motion
for New Trial is unnecessary ........................................................................... 8
Standard of review................................................................................. 8
iii
No need for this Court review the new trial denial ............................... 9
Prayer ......................................................................................................................... 9
Certificate of Compliance ........................................................................................ 10
Certificate of Service ............................................................................................... 10
iv
Index of Authorities
Cases Page
Ex Parte Flores, 387 S.W.3d 626 (Tex. Crim. App. 2012) ....................................... 4
Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998)....................................... 5
McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) ................................. 5
Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App. 2013) .................................. 10
State v. Zalman, 400 S.W.3d 590 (Tex. Crim. App. 2013) ..................................... 10
Strickland v. Washington, 466 U.S. 668 (1984) .................................................... 4, 5
Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) ......................... 5
Rules
Tex. R. App. P. 39.1................................................................................................... 2
Statutes
Tex. Code. Crim. Proc. art. 42.12 § 9(d) ................................................................... 5
U.S. CONST. amend. VI .............................................................................................. 4
v
Statement Regarding Oral Argument
Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is
unnecessary, as the facts and legal arguments are adequately presented in the briefs
and record and the decisional process would not be significantly aided by oral
argument.
Issues Presented
Reply Issue #1– Appellant’s trial counsel was not ineffective, and even if he
was, there was no harm to Appellant.
Reply Issue #2– Review of trial court’s denial of Appellant’s Motion for
New Trial is unnecessary.
vi
Statement of Facts
Appellee finds the facts laid out in Appellant’s brief to be an accurate
statement of the record.
Summary of the Argument
Trial counsel’s performance did not fall below an objectively reasonable
standard. According to trial counsel for Albro, counsel for State, and Albro
himself probation was not offered to Albro at any time. All that was offered to
Albro in exchange for his offer to testify against his co-defendants was an
agreement that this State would acknowledge Albro’s actions in confessing. The
State did so by offering Albro ten (10) years confinement in the Texas Department
of Criminal Justice – Institutional Division. Albro had an enhancement based on a
prior juvenile conviction for murder that enhanced the sentence range from 2-20
years up to 5-99 years. Albro was admonished on the potential sentence of 2-20
years at the time of his guilty plea, however trial counsel acknowledged that both
he and Albro were aware of the enhancement prior to the plea, and the Court
acknowledged the enhancement prior to the sentencing. The enhancement,
however, is a moot point because Albro was sentenced to twenty (20) years
confinement in the Texas Department of Criminal Justice – Institutional Division
which is within the range of punishment that Albro was admonished on during his
plea. Trial counsel adequately prepared Albro for his sentencing and meticulously
1
prepared letters of support for the presentence investigation report and witnesses
for the actual sentencing.
Lastly, there is no need to review the trial court’s denial of a motion for new
trial, as it is reviewed under a more deferential than the Strickland argument
already raised. If this Court finds that trial counsel was effective, the trial court did
not abuse its discretion per se in finding trial counsel same. If this Court finds that
trial counsel was ineffective, the case will be remanded, rendering the trial court’s
denial of a new trial moot.
2
Argument
Reply Issue #1: Trial counsel’s conduct did not fall below professional
standards, and even if they did, there was no harm to Appellant.
Standard of review
A criminal defendant is guaranteed the right to representation throughout the
trial process.1 The Sixth Amendment right to counsel “preserves the fairness,
consistency, and reliability of criminal proceedings by ensuring the process is an
adversarial one.”2 An appellant can establish a claim of ineffective assistance of
counsel by proving, by a preponderance of the evidence, that (1) counsel’s
performance fell “below an objective standard of reasonableness” and (2) that the
deficient performance actually prejudiced the defendant.3
Ineffective assistance of counsel is a serious claim, and the reviewing court
will rarely have a record on direct appeal capable of providing enough information
to provide a fair evaluation.4 Because of the seriousness of the claim, “any
allegation of ineffectiveness must be firmly founded in the record, and the record
must demonstrate the alleged ineffectiveness.”5
1
U.S. CONST. amend. VI; Tex. Const. art. I, § 10.
2
Ex Parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012).
3
Strickland v. Washington, 466 U.S. 668, 668 (1984).
4
Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).
5
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
3
Scrutiny of counsel’s performance is highly deferential and there is a
presumption that the conduct falls within the wide range of reasonable professional
assistance.6 Where the alleged ineffective assistance is an omission, rather than a
commission of an act, the thorough and detailed examination by a collateral attack
of a writ of habeas corpus is preferred.7
Applicable law for presentence investigation reports
Unless waived by the defendant, at least 48 hours before sentencing a
defendant, the judge shall permit the defendant or his counsel to read the
presentence report.8
Trial counsel’s performance did not fall below
an objectively reasonable standard
Appellant’s arguments are trial counsel’s performance was deficient in that
(1) Albro was offered probation before he waived his right to a jury trial and
consented to plead guilty without a recommendation to a second degree felony
based on his offer to testify against his co-defendants, (2) Albro was not aware of
the enhancement paragraph at the time he pled guilty because his attorney did not
advise him of the enhancement, (3) trial counsel did not object at the sentencing
hearing to the enhancement of punishment considered by the court at sentencing,
6
Strickland, 466 U.S. at 688.
7
Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).
8
Tex. Code. Crim. Proc. art. 42.12 § 9(d) (emphasis added).
4
and (4) trial counsel did not review the PSI with Albro prior to sentencing or
adequately prepare Albro for sentencing, trial counsel did not communicate with
Albro or meet with him in order for him to make a free, voluntary and informed
decision whether to waive his right to a jury trial and plead guilty.9
Albro was never offered probation by the State at any time. Trial counsel
has asserted that there was never an agreement for probation, much less in
exchange for a waiver of a jury trial.10 Additionally, the prosecutor for the state
also asserts that there was never an agreement for probation.11 In a letter dated
February 18, 2014, over four months prior to the July 01, 2014 sentencing, Albro
wrote to trial counsel that he was upset to learn that he was not eligible for
probation.12 The appellant, the appellant’s trial counsel, and counsel for state all
acknowledge that the appellant was not eligible for probation and would not be
receiving probation. There was no agreement for probation for trial counsel to
inform the court of and no agreement for probation for trial counsel to require the
State to follow through on.
9
Appellant’s Brief at 17.
10
Supp. I R.R. at 35 (“Q. Mr. Reeves, the defendant claims that he was offered
probation before he waived his right to jury trial. Is that true? A. No it is not. Mr. Thompson
made that clear from my first conversation sometime after December 30th of 2013.”)
11
Supp. I R.R. at 42 (“I repeatedly made it clear to Mr. Reeves that I could not offer
probation, given the murder conviction Mr. Albro had as a juvenile.”)
12
See Defendant’s Exhibit 1, I R.R.
5
Trial counsel advised Albro of the enhancement based on his prior murder
conviction as a juvenile prior to the plea. Trial counsel received notice from the
State on April 29, 2014 that Albro’s juvenile conviction was going to be used as a
sentencing enhancement.13 Albro was admonished at his plea on May 13, 2014
that he faced 2-20 years confinement in the Texas Department of Criminal Justice
– Institutional Division.14 During the sentencing of Albro on July 01, 2014 the
State referred to the notice given to trial counsel on April 28, 2014 about the
enhancement for Albro’s juvenile conviction.15 During this sentencing the Court
questioned trial counsel about the enhancement and trial counsel acknowledged
that the notice was prior to the date Albro pled, Albro was aware of the
enhancement, and that this was not a surprise.16 The enhancement and any
objections to it, however, are a moot point because Albro was sentenced to 20
years confinement in the Texas Department of Criminal Justice – Institutional
13
Supp. I R.R. at 37 (“Well, I received that notice [enhancement] by fax on 4-29-2014, I
believe, according to my records, and it wasn’t a surprise. It was talked about from the very
beginning of the case.”)
14
II R.R. at 5-6.
15
III R.R. at 5 (“We had given notice of enhancement per a pleading, which is filed in the
Court, enhancing the offense with the murder conviction as a juvenile in 2006; and we’re
offering as State’s Exhibit 1 the order of commitment committing him to 30 years determinant
sentence for murder in 2006.”)
16
Id. at 5-7.
6
Division which is within the range of punishment that Albro was admonished
about at the time of his plea of guilty.
The contents of the presentence investigation report were reviewed with
Albro prior to the sentencing and trial counsel adequately prepared Albro for the
sentencing. Trial counsel testified at the Motion for New Trial, “I had several
telephone conversations with Mr. Albro from the jail to my office; I had meetings
with his mother, which were more than three, lasting up to two hours or more.
And I had at least four or five meetings with him here at the courthouse, and those
would last up to 45 minutes at various times.”17 In addition to the meetings with
Albro trial counsel spent considerable time preparing documents for the
presentence investigation report including letters from family, church, academic
achievements, and various character witnesses on Albro’s behalf.18 After gathering
witnesses and documents for Albro trial counsel then proceeded to spend 30 to 45
minutes reviewing the presentence investigation report in preparation for the
sentencing.19 Throughout all of this preparation, trial counsel was not ineffective
and there was no actual harm done to Albro.
17
Supp. I R.R. at 15.
18
Id. at 25-27.
19
Id. at 27.
7
Reply Issue #2 – Review of trial court’s denial of Appellant’s Motion for
New Trial is unnecessary.
Standard of review
A trial judge’s decision to grant a motion for new trial is reviewed only for
an abuse of discretion.20 A judge may grant or deny a motion for new trial “in the
interest of justice,” but justice means in accordance with the law.21 A judge may
not grant a new trial on mere sympathy, an inarticulate hunch, or simply because
he believes the defendant received a raw deal or is innocent.22
An appellate court may reverse the trial court’s ruling only if the ruling was
clearly erroneous or arbitrary.23 A court of appeals should examine the totality of
the record in a light most favorable to the trial court’s ruling to assess whether
counsel, under an objective standard, rendered ineffective assistance.24
20
State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App. 2013).
21
Id.
22
Id.
23
Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013).
24
Id.
8
No need for this Court review the new trial denial
The standard of review for denying a new trial is a much more deferential
standard than the ineffective assistance claim, discussed supra. Should this Court
find that trial counsel did not violate Strickland, then in a light most favorable to
the trial court’s ruling upon examination of the entire record, it must not have
abused its discretion in finding same.
Likewise, if this Court finds that trial counsel did violate Strickland, then it
must remand the case, rendering the denial of a new trial moot.
Since the issue of ineffective assistance of counsel is dispositive of this
appeal, this Court not need reach the issue of the denial of Appellant’s motion for
new trial.
Prayer
WHEREFORE, The State of Texas, respectfully prays that this Court of
Appeals dismiss this prohibited appeal without further action. Absent a dismissal,
The State of Texas prays that this Court of Appeals affirm the judgment of the trial
court.
9
Respectfully Submitted,
/s/ April Ayers-Perez
APRIL AYERS-PEREZ
Assistant District Attorney
Angelina County D.A.’s Office
P.O. Box 908
Lufkin, Texas 75902
(936) 632-5090 phone
(936) 637-2818 fax
State Bar No. 24090975
ATTORNEY FOR THE
STATE OF TEXAS
Certificate of Compliance
I certify that this document contains 1,816 words, counting all parts of the
document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in
14 point font, and the footnote text is in 12 point font.
_/s/ April Ayers-Perez____________
APRIL AYERS-PEREZ
Certificate of Service
I certify that on December 31, 2014, a true and correct copy of the above
document has been served electronically to Al Charanza, Counsel for Stephen
Albro, Jr on appeal, at P.O. Box 1825, Lufkin, Texas 75902.
__/s/ April Ayers-Perez____________
APRIL AYERS-PEREZ
10