Gonzales, Jose Iii ( 2015 )

/ VHS
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
JOSE GONZALES III,
Petitioner/ COURT OF CRIMINAL APPEALS
APR 2 2 2015
v.
Abel Acosta. Clerk
THE STATE OF TEXAS,
Appellee.
FILED \H
COURT OF CRIMINAL APPEALS
APR 2 2 2015
Abel Acosta, Clerk
PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CAUSE NO- 13-13-00011-CR.
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
PAGE NO.
TABLE OF CONTENTS . . I.
INDEX OF AUTHORITIES.. II-V,
STATEMENT REGARDING jORAL ARGUMENT VI.
STATEMENT OF THE CASE VII.
STATEMENT REGARDING PROCEDURAL HISTORY. . VIII-IX .
GROUNDS FOR REVIEW. X-XI.
ARGUMENTS • 1-37.
CONCLUSION ... 37-38.
PRAYER FOR RELIEF 38.
CERTIFICATE OF SERVICE 39 -
APPENDIX....... , End *
INDEX OF AUTHORITIES
PAGE NO.
TEXAS CASES:
Ball v. Roa, 48 S.W.3d 322 37.
Bell v. State, 938 S-W.2-2-d.35 . - ... . 20.
Bell v. State, 356 S.W.3d 528 . 1-2.
Campbell v. State, 163 Tex,Cr-R.545,284 123 S.W.597,600 13.
Cardenas v. State, 960 S.W.2d 941,947. . 34.
Crawford v. State, 685 S.W.2d 343,349.. . ... 20.
Devaughn v. State, 749 S.W.2d 749 S.W.2d 62,65.. 8.
Drake v. State, 686 S.W-2d 935,944 . .. 12-13.
Ervin v.State, 991 S.W.2d 804,856=... .. 1.
Ex parte Castillo, 432 S.W.3d 457 . ..5,9.
Ex parte Cavazos, 203 S.W.3d 373. ./ . „ 5-9.
Ex parte Duffy, 607 S-W-2d 507 33.
Ex parte Ellison,609, S.W-2d 218 13.
Ex parte Hawkins, 6 S.W.3d 544,556 7-8.
Ex parte Johnson, 697 S.W-2d 605,612. 13.
Ex parte Rathnell, 717 S.W.2d 33,36... 8.
Ex parte Siller, 686 S.W-2d 617,618........ 13.
Grayson v. State, 192 -S.W-.3d 790.. 2.
Hill v. State, 750 S.W.2d 213 16.
Holly v. State, 460 S.W.2d 136, 137, 15.
Lacy v. State, 160 Tex.Crim,299 207 S.W.2d 413,414 15.
Landers v. State, 957 S.w.2d 558,559-60 8.
LaSsiter v. Shavon, 824 S.W-2d 667 37.
Mendoza v. State, 1 S.W.3d 829 2.
Morey v. State, 744 S.W. 2d 688,670.. 16.
Overton v. State, 552 S.W.2d 849 12.
Richardson v. State, 888 S.W.2d 822,824 ,8.
Riley v. State, 658 S.W.2d 818 14.
Russel v. State, 146 S.W.3d 705,714 22.
Shackelford v. State, 516 S.W.2d .180 16.
Shaw v. State, 728 S-W-2d 889,890^ 16.
Smith v. State, 101 Tex .Cr-R. 220, 123 S.W.597.600 ,13.
Stone v. State, 751 S.W.2d 579 34.
Valancia v. State, 891 S.W.2d 652 36.
Vaughn v. State, 239 S.W.3d 351.. 5>
II.
Page No.
AUTHORITIES CONT:
Waythe v. State, 553 S.W.2d 802 -•- 12-
Wooton v. State, 11 Tex -Cr-R. 524, 15 S.W.2d 635 13.
Williams v. State, 897 S.W.2d 351 20.
Yglesias v. State, 252 S.W.3d 737.. - - 2.
Zrolkowski v. State, 233 S.W.3d 640 ... 2.
FEDERAL CASES:
Blake v. Kemp; 758 F.2d 523,533 25.
Burney,756 F.2d. 790 - - 12,16,24.
Coleman, 802 F.2d 1233... * 25.
Dyer v. Crisp, 613 F.2d 275. 12.
United States v. Diaz-Carreon, 915 F.2d 956. =...... 35.
United States v. Durham, 287 F.3d 1297,1304.... .......3.
United States v. Willis, 6 F.3d 257... -. 35.
Moyola v. Alabama, 623 F.2d 992,998.. 22.
Osborn v.Schillinger, 861 F.2d 626,627 . 24.
Osborn, F.Supp.616-617 . 25.
SUPREME COURT CASES:
Anders v. California, 422 U.S.738 30.
Benton v. Maryland, 395 U.S.7784^- 5.
Blockburger v. U.S. 284 U.S. 299 .... •-•• 5.
Brown v. Ohio, 432 U.S. 161. - 5,8,-11.
Bulger v. Kemp, 107 S. Ct. 1326 • • 25.
Douglas v. California, 372 U.S.353... ... 30.
Evitts v. Lucey, 469 U.S. 387 - • • -.11.
Faretta v. California, 422 U.S.806 .. .. 27.
grady v. Corbin, 495 U.S. 508. • 5.
Illinios v. Vitale, 477 U.S. 410 5.
McMann v. Richardson, 397 U.S. 759..... - 10,11,12.
Nix v. Whiteside, 475 U.S. 157.. 26.
North Carolina v. P395 U.S.711,717 7.
Sanabria v. United States, 437 U.S. 54 8.
Strickland v. Washington, 466 U.S.688 10-34.
United States v. Cronic, 466 U.S.656... 27-28.
U.S. v. Dixon, 509 U.S. 688 5.
Von Molkev. Gillies, 332 U.S. 708 11-/
TEXAS CONSTITUTION:
Tex? .--Const, art .1§10 14.
Tex . Const, art-1§14 4,5.
III*..
AUTHORITIES CONT: D
Page No-
Tex. Const- art- V§21(b) 16.
UNITED STATES CONSTITUTION:
U.S.CA. 5 4-35 .
U.S.CiA. 6 - 3-17 .
U.S-C.A. 14 2-35.
TEXAS STATUES:
V.T.C.A. Penal Code § 19.03 (a)(2) 5-6.
V.T.C.A. Penal Code § 30.02 5-7.
V.T.C.A. Family Code ,71.003 ,7 .005 ,-71.0021 7.
" " Penal Code §83.04 (a) 12-14.
Penal Code § 8.01 34.
Title 7, Penal Code. 12.
Title 5, Penal Code -- 12.
Penal Code § 3.01 12.
Vi'T.C.0;>P. art. 1.10 (1) 4.
21.21 (a) 15.
21.24 (a) 9-14.
21122 •<(£.).!.;•. 16.
1.14 (b). . 17.
1.13 (b) 17.
" 31.03 . 19,22.
" 42.112 Sec4(d) (8) (c) 23,24,
" " " 46-03 30.
GriminallLaw keynote-1167 (J.) 10.
II It II II II A Q O o O O
" " " " " 637.2 1-2.
" " " " " 641.12(2). 3,15.
" " " " " 773(1) 32.
" n " " " 127 9,10-
. "" " " " " ' 620(3) .9,10.
" " " " " 773.......... 30.
" " " " " 493. 30.
Double jeopardy Keynote-4 5.
" " " " " " 134 5-6.
144... .6.
132.1 .6.
IV
AUTHORITIES CONT:
Indictment and Information Keynote-127........ ...9.
ii ii •• ii ii ii ii ii 1 o Q Q
ii ii ii ii ii •• f< n 19 6 9
ii ii ii ii ii ii ii ii 13 2........... . 9
V-
STATEMENT REGARDING ORAL ARGUMENT
Petitioner urges the Court to allow Oral argument for the follow
ing reasons; To Wit:
Petitioner'SAClaim: of double jeopardy is based on the Cavazos '
case 203 S.W.3d 333 (Tex.Crim.App.2006) and the Castillo case that
the State cited in their brief: Ex parte Castillo,432 S.W.3d 443
(Tex.App.-San Antonio 2014, no pet.h.)-
Furthermore, this error is an error whether objected to or not.
Petitioner briefed said error in his Pro/se brief which the 13th
Court of appeals failed to adjudicate on its merits.
Because their is a misjoinder issue in multiple count indictment
Petiitoner needs further redress from the Court to address said
grounds. Also because the record was fully developed before the
Court Petitioner claimed ineffective assistance of counsels on
direct appeal as well as trial attorney's. Petitioner should have
been given the full adjudication of ineffective assistance claim
as oulined in Trevino v. Thaler,569 U.S. (2013). Furthermore,
Petitioner urges the Court for oral argument that Petitioner's
attorney on direct appeal filed Anders brief and motion to withdraw,
the court granted motion and Court assigned Stephen Wv Byrne as
attorney whom filed a motion to withdraw based on ill-health and
no Anders brief. Because he was the attorney of record 13th Court
of Appeals was in error and abused their discretion by ruling on
Anders brief filed by attorney Fred Jiminez whom was no longer
Petitioner's attorney and such Anders brief was moot by operation
of law. Because the remainder of the grounds are based on ineffective
assistance of counsel Petitioner urges the Court to allow oral argument
VI.
STATEMENT OF THE CASE
On December 12, 2011 Jose Gonzales III, Hereinsty.led ;PeLta:tl,©n'er was
chargedc with Capital Murder in the course of committing a Burglary
of a Habitation of one Leslie Morin, by shooting Leslie Morin with
a Firearm. In Count II, Appellant was charged with Burglary of a
Habitation on or about December 12, 2011 in Nueces County, Texas.
There and then Intentionally and Knowingly enter a habitation with
out .the effective consent of Vidal Rodriguez who had greater right
to said property, and attempted tor commit or committed the felony
offense of Aggravated Assault with a Deadly Weapon.
Appellant was employed as a police officer in the City of Alice,
Texas on the day*of the offense. In a high profile trial Appellant
was convicted on both counts by a biased and prejudicial jury.
The court sentenced Pe'frktion&r to life with out parole on Count I,
and life with parole on Count II. Wherein said convictions;, are
constiutionally infirm. The trial was overwhelmed by the media and
public pressure. Change of venue was warranted.
VII.
STATEMENT OF PROCEDURAL HISTORY
Petitioner was chargedcby. indictment with one count of capital
murder during. the.:cburse Mof committing a burglary of a habitation,
and one count of burglary of a habitation with the intent to
commit aggravated assault or a felony. A jury convicted him of
both offenses as alleged in the indictment on December 6, 2012.
The Court assessed punishment at life without the possibilty of
parole for the capital murder charge and life in the Institutional
Division of the Texas Department of Criminal justice-CID for the
burglary of a habitation charge. The Petitioner filed notice of
appeal on December 10,2012. Petitioner's attorney of record Fred
Jimenez filed an Anders brief on July 18,2013. on July 24,2013
Attorney Fred ^inenez filed a motion to withdraw as attorney.
On August 16,2013, the trial court appointed Stephen W. Byrne to
represent Petitioner. On September 8,2013, Stephen W. Byrne filed
motion to withdraw citing ill-health -and requested the court to
appoint new counsel. Nio Anders brief was filed and no attorney was
appointed. Petitioner filed motion for trial record.-Petitioner
filed his Pro/se brief on May 23,2014, along with request for oral
argument. Furthermore, Petitioner filed a motion in the 13th Court
of appeals for his trial attorney to produce the psychological
report generated from his court ordered evaluation. Such report was
never made part of the record. The State was ordered to file their
brief. The caseuwas" duesfbr^.submission on August 13,2014. The State
filed thier brief on August 12, 2014 with a motion for extension of
time. Petitioner filed a motion to hold said appeal in abeyance in
order to respond to State's brief. On August 14,2014 the Court aI
affirmed in an unpublished opinion by Justice Dori Contreras Garza
VIII.
STATEMENT OF PROC. HIST. CONT.
whomaordered a contradictory order for Motion to withdraw for
attorney Fred Jimenez's Anders brief which should have been moot.
Petitioner filed motion for rehearing on August 30,2014. The State
filed brief agreeing with Petitioner's claim of double jeopardy
wherein the San Antonio Court rendered relief for the exact same
issue.- Rehearing was denied on January 21, 2015.
IX.
GROUNDS FOR REVIEW
GROUND ONE: PAGES.
TRIAL COURT ERRED IN ALLOWING PETITIONER TO BE TRIED IN SHACKLES
IN VIOLATION OF U.S.C.A. CONST. AMENDS. 6TH AND 14TH. TRIAL
COURT INFRINGED UPON PETITIONER'S PERSUMPTION OF INNOCENCE, AND
HIS RIGHT TO COUNSEL. INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT
OBJECTING TO PETITIONER BEING SHACKLED AND PROCEDURALLY DEFAULTING 1-4.
PETITIONER'S CLAIM.
GROUND TWO:
THE STATE COMMITTED DOUBLE JEOPARDY WHEN IT PROSECUTED PETITIONER
FOR MULTIPLE BURGLARIOUS ENTRIES WHERE THERE WAS ONLY ONE UNLAWFUL
ENTRY, IN VIOLATION OF TEXAS CONSTITUTION ARTICLE I,§14 AND U.S.C.-
A. CONST. AMEND. 5, ,ALSO V-T-C-C-P. ART. 1.10. 4_9
GROUND THREE:
INEFFECTIVE ASSISITANCE OF COUNSEL FOR NOT OBJECTING TO MISJOINDER
OF TWO DISTINCT OFFENSES IN THE SAME INDICTMENT. COUNSEL DID NOT
FILE PRETRIALMMOTI'ONS NOR OBJECT DURING TRIAL TO MISJOINDER OF
OFFENSES THEREBY EFFECTING THE OUTCOME OF TRIAL, SUCH OBJECTIONS
WOBiLDi HAVE RESULTED IN A DIFFERENT OUTCOME. 9-lS.
GROUND FOUR:
INEFFECTIVE ASSISTANCE OF COUNSEL : COUNSEL'S FAILURE TO FILE MOTION
TO QUASH AFFIDAVIT AND INFORMATION THAT WAS UNSIGNED, HENCE PROSE
CUTION WAS COMMENCED UPON THE STRENGTH OF AN UNSIGNED INFORMATION.
3>5-19.
GROUND FIVE:
INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT FILING MOTION FOR CHANGE
OF VENUE IN HIGHLY CHARGED CRIMINAL PROSECUTION IN ACCORDANCE WITH
V.T.C.CP. ART. 31.03, WAIVER BY ATTORNEY DEFAULTED PETITIONER'S
RIGHT TO RAISE CLAIM FOR APPELLATE REVIEW. 19-21.
GROUND SIX:
TRIAL JUDGE ABUSED HER DISCRETION BY NOT ORDERING CHANGE OF VENUE
AFTER ITT BECAME IMPOSSIBLE TO SEAT A JURY THAT WAS UNBIASED IN
HIGH PROFILE CASE. 21-27.
GROUND SEVEN:
INEFFECTIVE ASSISTANCE OF COUNSEL FOR COUNSEL ABANDONING PETITIONER,
X.
GROUNDS FOR REVIEW CONT:
PAGES.
AND ACTING AS NO COUNSEL AT ALL, MERELY FRIEND OF THE COURT. 23=27.
GROUND EIGHT:
PETITIONER'S COUNSEL OF RECORD FOR APPEAL FRED JIMENEZ WHS INEFFEC
TIVE AND COMMITTED A FRAUD BEFORE THE COURT BY FILING FRIVILOUS
ANDERS BRIEF, FOR SUCH ACTIONS WERE MOTIVATED BY POLITICAL ASPIRA
TIONS AND CONFLICT OF INTEREST FRED JIMENEZ WIFE WAS THE D.A. AT
THE TIME, AND THE HIGH PROFILE NATURE OF THE CASE FORCING PETITIONER
WHO IS NOT EDUCATED IN THE LAW TO FILE PRO/SE BRIEF. 28-30.
GROUND NINE:
PETITIONER'S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR
NOT RAISING AN AFFIRMATIVE DEFENSE OF TEMPORARY INSANITY, AFTER
ATTORNEY MADE REMARK REGARDING PETITIONER'S MENTAL STATE AT THE TIME
OF OFFENSE. 33-34.
GROUND TEN:
PRSECUTORIAL MISCONDUCT: ASSISITANT DISTRICT ATTORNEY COMMITTED
PROSECUTORIAL MISCONDUCT WHEN QUESTIONING OFFICER ON STAND ABOUT
THE CHARGE THAT RELIES ON A.LEGAL CONCLUSION 1.THAT THE JURY DECIDES
FOR ITSELF. 35-36.
GROUND ELEVEN:
TRIAL JUDGE ABUSED HER DISCRETION BY NOT ISSUING CURATIVE INSTRUCTIONS
AFTER STATE'S WITNESS TESTIFIED TO PREJUDICIAL EXTRANEOUS ISSUE THAT
WAS NOT RELATED TO THE OFFENSE. 36-38,
SPECIAL STATEMENT OF HARM
13TH COURT OF APPEAL'S OPINION GOES AGAINST THE SISTER COURT OF APPEALS
BY DECIDING ON ANDERS BRIEF THAT WAS MOOT BASED ON THE TRIALCCOURT'S
PLACING ATTORNEY STEPHEN W. BRYNE AS ATTORNEY WHO SUBSEQUENTLY FILED
MOTION TO WITHDRAW BASED ON ILL-HEALTH.
FURTHERMORE, BRIEFS WERE SCHEDULED FOR SUBMISSION ON AUGUST 13, 2014.
THE COURT RENDERED OPINION WAS RENDERED THE VERY NEXT DAY AUGUST 1%4
2014. WHICH WAS A BOILER PLATE RESPONSE NOT CONSISTANT WITH ANY MESNfGEUL
REVIEW. STATE'S REPLY BRIEF ADDRESS THE MERITS OF PETITIONER'S CLAIM
AM) CONCEDES THAT PETITIONER CLAIMCOFrDOUBLE JEOPARDY IS CONSISITANT
WITH THE SAN ANTONIO'S OPINION RENDERED IN EX PARTE CASTILLIO, 432 S.W.
3D+4§7/f'466(fEX. crim. app. San Antonio 2014, no pet.h).
XI.
ARGUMENT
GROUND ONE:
TRIAL COURT ERRED IN ALLOWING PETITIONER TO BE TRIED IN SHACKLES
IN VIOLATION OF U-S-G-A- CONST- AMENDS. 6TH AND 14TH. TRIAL
COURT INFRINGED UPON PETITIONERS PERSUMPTION OF INNOCENCE, AND
HIS RIGHTTO COUNSEL. INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT
OBJECTING TO PETITIONER BEING SHACKLED AND PROCEDURALLY DEFAULT-
PETITIONER'S CLAIM.
COMES NOW, JOSE GONZALES III. HEREINSTYEED, PETITIONER, FILES
THIS PETITIONER OF DISCRETIONARY REVIEW IN ACCORDANCE WITHTTEXAS
RULES OF APPELLATE PROCEDURE RULE 68.
Petitioner contends the trial court abused its discretion in requi
ring Petitioner to wear shackles during trial, and the wearing of
shackles was not harmless. (RR.Vol.3, Pg.126). The Following occured:
Line 3. The baliff: he has on leg irons,
Line 4. The Court: Okay, I'm just going to ask
Line 5. that you be real cognizant of the fact that when you
Line 6. Stand or sit, if you move too much the jurors
Line 7. are going to hear the leg irons, and the goal is to
Line 8. make sure that they dont realize you are incustody. So
Line 9. please make sure that you're just--you know,
Line 10. kind of aware as you stand and sit that it will
Line 11. make noise. Okay?
Line 12. All right, other than that, are we ready
Line 13. to bring them in?r
From this colloquy between the court and the Petitioner the for
restriants as articulated by the court line8, does not justify
shackling of Petitioner. The Court of Criminal Appeals has repeated
ly critized Nueces County Courts for routinely shackling Defendants
without articulating a need for such restriants.
C "'•:-!!. na."1 Law Icc^yi-obo
Criminal Law Keynote-637.2:
Grounds and circumstances affecting the use of rcdstriants in genral.
Essential State -interest justifying shackling a defendant is found
where there is a danger of escape or injury to the jury, counsel, or
other trial participants. U.S. v. Banegas, 600 F.3d 342.
Criminal Law keynote-637.2:
Right to appear without restriants;
Routine shackling of criminal defendants is prohibited. Bell v. State,
356 S.W.3d 528, rehearing overruled. (Tex.App.Houston[14th Dist.]
1.
Argument Cont:
2008). Generally, a defendant has a right to be tried without being
shackled, whether or not the shackles are visible to the jury;
however, the trial courts has discretion to order restriants if there
is showing of a manifest need or exceptional circumstances, such as
when a defendant poses a threat to himself or others. Yglesias v. State,
252 S.W.3d 773, PDR rev. ref'd (Tex.App.Houston [14th Dist.] 2007).
The harm an accused suffers when the jury sees him in shackles is that
his constitutional persumption of innocence is infringed; and thus,
all efforts should be made to prevent a jury from seeing a defendant in
shackles unless there be a showing that there are exceptional circum
stances or a manifest need for such retriants- Grayson v- State, 192
S-W-3d 790. The fact that a defendant is charged with a serious felony
does not provide .a basis for shackling that deendant during trial; like
wise, a general concern for security is not sufficient to justify such
restriant in a murder trial, court stated out of concern for courtroom
security and because he was on trial for murder. -Zrolkowski v. State,
233 S.W.3d 640, PDR rev. ref'd Petition stricken 20078wiL-2403690(Tex. App.
-Texarkana 2011. Requiring a defendant to be tried in shackles without
adequate reason is repugnant to the spirit of law and ideas of justice
whether those restriants visible or unseen. Grayson v. State, 192 S.W.
3d 790, also see, Mendoza v. State, 1 S.W.3d 829 (Tex.App.-Corpus Christi
1999)(Reversed Aug.31,1999). The Courtof Criminal Appeals admonished
Nueces County Courts for routine Shackling of defendants.
The only reason articulated by the trial court was^that: make sure they
in reference to the jury didn't realize Petitioner was in custody, (rr.
Vol.3,pg.126 Line 3-13 - Furthermore Petitioner was required to stand
every time the jury exited or..-entered the courtroom as well as move
to a different courtroom shackled to further voir dire jurors. Said
restraints were visible to the jurors. See Vol. 3,pg.l26-.
The Petitioner was denied the persumption of innocence and basically all
aspects of the due process under the U.S. Const. 14th Amend, and the
6th Amends, Equal Protection Clause. Ineffective Assistance of Counsel:
Because Petitioner's counsel did not formally object to Petitioner being
shackled, said counsel Procedurally defaulted said claim for purpose of
direct appellate review and such deficient performance prejudiced the
out come and would have resulted in a different out come.
Criminal Law keynote-637:
A:deferidant who is visibly shackled does not have the benefit of the
bedrock persumption that a defendant is innocent until proven guilty
2.
GROUND ONE CONT:
and thus his right to a trial is fundametally compromised. U.S.C.A.
Const.Amend. 14.
Criminal Law keynote-641.1:
The Constitution, in order to help the accused secure a meaningful
defense, provides him with a right .to counsel. U.S.C.A. Const. Amend.
6th, 14th.
Criminal Law keynote-637, 641.12 (2;).:
The use of shackles on a defendant during trial may undermine a defen
dant 's ability to effectively communicate with his attorney. U.S.C.A.
Const. Amend 6th & 14th.
Criminal Law keynote-637:
The routine use of shackles on a criminal defendant in the presence of
juries compromises the courtroomls formal dignity, which includes the
respectful treatment of defendants, reflects the importance of the
matter at issue, guilt or innocence, and the gravity with which Ameri
cans consider any deprivation of an individuals' liberty through
criminal punishment. U.S.C.A. Amend. 14th.
Criminal Law keynote-637:
Prior to the use of shackles on a criminal-defendant, a trial court
must make a specific finding that they are necessary for reasons
particular to a given case. U.S.C.A. Const. Amend. 14.
Because this was not done and petitioner's attorney failed to object as
to the needs of restraints, and appellate attorney failed to see ths
error in said disparte treatment of petitioner being paraded in front
of jurors shackled said case should be reversed and remanded with
instructions based on the ineffective assistance-:of counsel claim, or
in1lieu remand back to the trial court and take attorneys as well as
the Hon. Angelica Hernandez on vior dire.
Shackling of Petitioner without a demonstrated need compromised the
formal dignity of the court and judicial proceedings and lead to harm
ful collateral effects. Such effects cheifly included curtailing
Petitioner's ability to communicate freely with counsel because of the
physical limitations imposed by shackles and simply the distraction
and embarresment they caused the Petitioner. See, Unites States v. Dur
ham, 287 F.3d 1297, 1304 (11th Cir.2002) ("Even if the[shackles] placed
the defendant are not visible to the jury, they still may... confuse
the defendant, impaired his ability to confer with counsel, and signi
ficantly affected the trial strategy he choose to follow.")
3.:; ,
GROUND ONE CONT:
Petitioner's attorney made the following statement to the prospective
jurors, that tainted the whole trial process : I frankly, probaly will
not be spending any time questioning that type of evidence because as
I told you right from the get go, Jose gonzales is guilty of criminal
homocide, the question is, what sort of criminal homocide is he in fact
guilty of? See, (Vol.3,pg. 147,4-9). Because Petitioner was shackled he
did not approve of such trial strategy, which made the trial process
unfair, confused the Petitioner, impaired his ability to communicate,
and significantly effected the trial strategy, wherein Petitioner was
not informed of such defense to be promugated, but believed that tempo
rary insanity would be the trial strategy and course his counsel would
take. It appears that attorney's error for not objecting to shackling,
along with attorney's unprofessional error's believing that petitioner
was guilty from the start severly infringed on Petitioner's persumption
of innocence, was deficient performance that reasonable:;effected the
outcome of the case. Petitioner was made to stand for the jury on numer
ous occassions, notronly where the shackles visible but because of the
movement, the chains were heard by the jurors. In such a high profile
trial, here the errors originated from the trial court's sua sponte orf
der, and trial court's reasons for shackling the Petitioner are insuffi
cient as a matter of law. See, Garcia v. State, 919 S.W.2d 370,381 (Tex.
Crim.App.1994). Because of th errors appearing in the record PDR should
be granted.
Ground Two:
THE STATE COMMITTED DOUBLE JEOPARDY WHEN IT PROSECUTED PETITIONER
FOR MULTIPLE BURGLARIOUS ENTRIES WHERE THERE WAS ONLY ONE UNLAWFULL
ENTRY IN VIOLATION OF TEXAS CONSTRITUTION ARTICLE 1§14, AND U.S.C.A.
Const. AMEND. 5,AND V.T.CCP. ART. 1. 10.
Petitioner was convicted in a single trial and given multiple punish^-::-
ments for the same conduct, thereby invoking the jeopardy clause in
the U.S. Const, and the Tex. Const. Petitioner was charged by indict
ment in Count I with committing Murder in the course of Burglary of a
Habitation, and in Count II, Burglary of a Habitation with intent to
commit Aggravated Assault or a felony. In Article 1.10 V.A.T.T.C.P.
states: No person for the-sawe offense shall be twice put in"jeopardy
of life or liberty; nor shall a person be again put upon for trial for
the same offense; after verdict of not guilty in a court of competent
jurisdiction.
The rule is a State may not place a defendant in double jeopardy;
GROUND TWO CONT:
U.S. Const. Amend-V; Tex. Const. Art. I§14; Benton v. Maryland, 395 U.S.
784 (1969). This means that the State may not: (1) prosecute a defendant
for the same offense after an acquittal; and (2) prosecute a defendant
for the same offense after a conviction; or (3) obtain multiple punish
ments in a-single trial for the same offense. Illinios v. Vitale, 477
U.S. 410 (1980); Brown v. Ohio, 432 U.S. 161 (1977).
What we are concerned here is that Count I for Capital Murder, was
predicated on a burglarious entry in order for it to be upgraded from
felony murder to Capital murder. See, Tex. Penal Code 19.03. Count II,
under Penal Code 30.02 Burglary of a Habitation to commit a,felony
(Aggravated Assault). The "same elements" test found in Blockburger v.
U.S. 284 U.S. 299 (1932) questions whether the State is attempting to
punish the defendant twice for the same offense. This test asks the
Court to exmine each statute to determine whether each requires a
proof of .an additional element the other does not. The Court abandoned
a !'same conduct" test by overruling Grady v. Corbin, 495 U.S. 508 (1990) ,
in UiStfiiv. Dixon, 509 U.S. 688 (1993). But in double jeopardy/multiple
punishment claims, Blockburger is not the solo focus, Ervin v. State,
991 S.W.2d 804, 814 (Tex-Crim.App.1999). If the Court has actual legis
lative intent of the two statutes, that intent is the critical factor.
If not then look at Girdy v. State, 213 S.W.3d 315,319 t^ex.Crim.App.-
2006)(if the prosecution, in proving one element of one offense, also
necessarily proves another charged offense, the other offense is a lesse.-
er included offense; if so, there must be clear legislative intent to
punish the offense seperately or multiple punishments are barred.)
DOUBLE JEOPARDY QUESTIONS!;
The allowable unit of prosecution for burglary is the indiviual entry,
not the number of indentifiable crimes committed once the defendant
makes the unlawful entry. Ex parte Cavazos, 203 S.W.3d 333 (Tex.Crim.
App.2006). Vauhgn V. State, 239 S.W.3d 351 (Tex*App.-San Antonio 2007).
Here we have Petitioner sentenced to multiple punishments for one
unlawful entry. See, Ex parte Castillo, 432 S.W.3d 457 (Tex.App.-San
Antonio 2014, no pet.h.).
Double ijgopardy Keynote-4:
Double jeopardy clause impose few, if any, limitations on the legis
lative power to establish and define the offense. U.S.C.A. Const. 5.
Double Jeopardy keynote-134:
5.
GROUND TWO CONT:
The legislature determine whether offenses are the same for double
jeopardy purposes by defining the allowable unit of prosecution; the
legislature also decides whether a particular course of conduct invol^-.y
ves one or more distinct offenses under a given statute. U.S.C.A.
Const. Amend. 5.
Double Jeopardy Keynote-144:
Convictions for Capital Murder during the course of committting Burglary
of a Habitation, and Burglary of a Habitation intent to commit a Felony
(Aggravated Assault) violated double jeopardy clause; even though there
werer. two victims, the allowables prosecution was the unlawful entry.
Not the complainant, and the defendant was punished multiple times
for a single unlawful entry. U.S.C.A. Const. Amend. 5; V.T.C.A. Pen. C
§ 30.02 (a).
Double Jeopardy Keynote-132.1:
When a defendant is conviction of two or more offenses thatcare the
same for double-jeopardy purposes, the conviction for the most serious
offense is retained, and the other conviction is set aside. U.S.C.A.
Const. Amend. 5.
Double Jeopardy keynote-132.1:
The "most serious offense" which is retained when convictions violate
double jeopardy clause is the offense of conviction for which the
greatest sentence was assessed; other factors such as the degree of
thefelony, range of punishment, and rules governing parole eligiblity
and awarding of good-conduct time, are not considerations; overruling
Landers v. State, 957 S.W.2d 588, U.S.C.A. Amend 5.
The issues before us is whether convicting Petitioner of two burglarious
entries each with a different complianant but arising from a single
unlawful entry of a habitation constitues double jeopardy? The prose
cution theory in the charging instrument that Petitioner committed
Capital Murder in the cousre of committing Burglary of a Habitation in C:
Count I. Thecjprerequisite of felony murder upgraded to capital murder
is outlined in V.T.C.A. Penal Code § 19.03. 490 U.S. 109 S.Ct. 2201, 104 L. Ed. 2d 865
(1989)); Lopez v. State, 108 S.W.3d 293, 295-98 (Tex.Crim.App.2003).
The court has pointed that "[a] defendant suffers multiple punishments
in violation of double;jeopa-rdy clause when he is convicted of more .offen
ses than the the legislature intended. Ervin v. State, 991 S.W.2d 804,
807 (Tex.Crim.App\ili999) (Siting Ball v.SState, v. United Sfcafees',470 U.S.
856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985)).. However the double jeopar
dy clause imposes few, if any, limitations on legislati'veppower to
establish and define offenses. Ex parte Hawkins, 6 S.W.3d 544, 556 (Tex.
GROUND TWO CONT:
-Crim.App.1999), (citing Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 221,
53 L. Ed. 2d 187 (1997)). The legislative therefore determines whether
offenses are the same for double-jeopardy purposes by defining the
"allowable unit of prosecution." Id. (citing Sanabria v. United States,
437 U.S. 54, 98 S. Ct. 2170 57 L.Ed.@d 43 (1978)). The legislature also
decides whether a particular ..course of;:conduct involves one or more
distinct offenses under a givemcstatute. Id.,consequently, :;the scope of
Double Jeoprdy Clause protection against multiple punishments under the
burglary statute depends on ascertaining the allowable unit of prosecu
tion .-Petitioner urges the Court that: "the gravamen of a burglary is the-...!
entry itself, without effective consent of owner and with the requisite
mental state. Devaughn v. State, 749 S.W.2d 62, 65 (Tex.Cgim.App.1998).
This Court has found that, when a burglary is committed, the harm results
from the entry itself. Richardson v. State, 888 S.W.2d 822, 824 (Tex.Crim.
-App.1994). The offense is complete once the unlawful entry is made,
without regard to whether the intended theft or felony is also completed.
Id. The allowable unit of prosecution for an assaultive offense is each
complainant. See, Phillips v. State, 787 S.W.2d 391, 394-95 (Tex..Crim.-
App.1990)(Assault); Ex parte Rathnell, 717 S.W.2d 33,36 (Tex.Crim.App.
1986)(Voluntary Manslaughter). Burglary, however is not an assaultive
offense; rather, its placement within Title 7 indicates that the legisla^.j-.-
ture determined burglary to be a crime against property. Thus the complain
ant is not the appropriateaallowable~unif\of prosecution in burglary,
rather, the allowable unit of prosecution is the unlawful entry. Petition
er's conviction violates double jeopardy, because he was punished multi
ple time for a single entry. When a defendant is convicted of two or
more offenses that are the "same" for double-jeopardy purposes, our case
law tells us that the conviction for the most serious offense is retain
ed and the other conviction is set aside. See, Landers v. State, 957 S.W.
2d 558,559-60 (Tex.Crim. App. 1997)'. Landersssteates;that the "most serious"
offense is determinedr-by r.theodegreecof itheof elsny? trangei-:Of punishment
and sentence imposed. Landers is overruled by Ex parte Cavazos'.
Third reason applies some what differently to the double —jeopardy context
than the misjoinder context, we fashioned a rule designed to best as
certain what offense the State would have elected to proceed upon at
trial. We did i.so because, in the misjoinder context the State is not
permitted to prosecute both offenses at the same time. Hence our evalu
ation of the seriousness of the offence, with the sentence coming into
8.
GROUND TWO CONT:
playi only when the range of punishment and the degree of the offense
being the same. It is this very reason why petitioner need competent
counsel, for the complexity of such issue, Petitioner's counsel acted as .•
no counsel at all. We shall visit the masjionder doctrine in our next
point of error. For inasmuch the record reflects that double jeopardy
has appeared from the record, to the the degree that both sentences aree
equallin respect that Petitioner was sentence to life on both counts, and
the Court has ruled in Cavazos, 203 S.W.3d 333 (Tex.C£im.App.2006) (Tex.
Crim.App.2006). The most serious retained. In this case both sentences
are equal. There being jeopardy appearing from the record said convictions
should be reversed and remanded with instructions. See, also Ex parte
Castillio, 432 S.W.3d 457 (Tex.App.-San Antonio 2014, no pet. h.).
Ground Three:
INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT OBJECTING TO MISJOINDER
OF TWO DISTINCT OFFENSES IN THE SAME INDICTMENT
COUNSEL DID NOT FILE PRETRIAL MOTION tNOR OBJECT DURING TRIAL TO MISJOINDER
OF OFFENSES THEREBY EFFECTING THE OUTCOME OF THE TRIAL, SUCH OBJECTION
WOULD HAVE RESULTED IN A DIFFERENT OUTCOME.
Criminal Law Keynote-620(3):
Mandatory right to severance of offenses only applies to joinder of
property offenses. V.T.C .A'.PPenal Code § 3.04£a).
Indictment and Information Keynote-127:
State is prevented in the prsence of objection, from alleging more than
one non-property offense in a single indictment, regardless of number of
transactions involved. V.T.C.C.P. art. 21.24.
Indictment and Information Keynote-127, 129(1):
For State to avoid joinder problems, indictment for non-property offenses,
whether arising from one transaction or sepera.te transactions, should
contain only, one count in as many paragraphs are asnecessaryoto allege
various manner and means of committing the one alleged offense. V.C.C.P.
art. 21.24 (a).
Indictment and Information Keynote-196(7):
To avail himself of pleading limatations with respect to nonproperty
offenses, defendant should file pretrial motion to quash indictment or
urge.y sometime during trial, that State make an election; failure to
object will result in waiver of pleading reqirements. v.A.T.CCP. art.
21.24.
Indictment and Information Keynote-132(2):
Trial court has discretion to delay State's election due to misjoinder
9.
GROUND THREE CONT:
of nonproperty offense in a single indictment, once requested, until
submission of charge to jury; however, if trial court unecessarily
delay's election and thereby prejudices defendant, trial court may be
found to abused its'discretion. Vernon's Ann. Texas C.C.P. art 21.24(a).
Criminal Law Keynote-1167(1):
If trial court fails altogether to require State to cure misjoinder of
nonproperty offenses, whether by denying motion to quash indictment or
denying motion to force election, appellate court must reverse convictions.
Vernon's Ann. Texas C.C.P. art.21.24(a).
Indictment and Information Keynote-127:
Indictment was invalid on basis of misjoinder where indictment alleged
more than one nonproperty offense and alleged nonproperty offenses and
property offense.
Ineffective Assistance of Counsel
Petitioner's counsel not filing motion to sever offenses, nor motion
to Elect, nor objecting to misjoinder, resulted in Petitioner's claims
to be procedurally defaulted for purposes of appellate review. Prejudiced
the outcome of the trial,, resulted in the convitions of two offenses
for the same transaction and resulted in seperate sentences for life.
Because of counsels deficient performance there is reasonable probability
that the outcome would had been different. Such action by Petitioner's
counsel gave the State a tactical advantage over Petitioner, which result
ed in the trial being unfair and jury biased. U.S.C.A. Const. Amends. 6th
& 14th.
Counsel's failure to file pretrial motion to quash, nor object was far
"'below the range expected of reasonable, professional competent assistance
of counsel." Counsel's performance thus "did not measure up to the stan-
dared requried under the holding in Strickland, 466 U.S. 688(1984), and
[if it had)] there is a reasonable probability that the results would
have been different in the sentencing phase." Under the applicable State
procedures there would have been an election, and the Petitioner would
not have to face two offenses under the same jury.
Turning to the prejudice issue, that there was a "reasonable probability
that, but for counsel's unprofessional errors, the results of the pro
ceedings would have been different." Strickland, 466 U.S. at 694.
Counsel Abandoned His Client
The Supreme Court has long "recognized that 'the right to counsel' "Under
the the Sixth Amendment. Strickland v. Washington, 66 U.S. 688,686, 104
S. Ct. 2052, 2063, 80 L.Ed.2d 674(1984); Qubuting McMann v. Richarson,
397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 25 L. Ed. 2d 763 (1970)),
10-
GROUND THREE CONT:
United States v.Cronic, 466 U.S. at 656, 104 S.Ct. at 2045; Anders v.
California, 386 U.S. 738, 743, 87 S. Ct. 1396, 1399, 18 L.ed.2d 493(1976).
"The benchmark for judging any claim of ineffective assistance of coun
sel must be whether counsel's conduct so undermined the proper function
ing of the adversarial process that the trial cannot be relied on as
having produced a just result." Strickland, 2064. An effective attorney
"must play the role of an active advocate, rather than a mere friend
of the.court. Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 835,
83 L.Ed.2d. 821 (1985) . Over ..forty years ago, justice Black articulated
the Sixth Amendment right to counsel as follows: "The right to counsel
guaranteed by the Constitution contemplate the service of an attorney
devoted soley to the interest of his client are the prized traditions
of tho American lawyer. It is this kind of service for which the.ssixth
Amendment makes provisions. And nowhere is this service deemed more
honorable than in a case of appointment to represent an accused too poor
to Kirte a lawyer, even though the accused may be a member of an unpopular
or hated group, ©>r.may be charged with an offense which is perculiary
abhorrent," Von Molke v. Gillies, 332 U.S. 708, 725-26,68 S.Ct- 316,
342.. 92 L.Ed.2d. 309 (1948) . >Similarily, an attorney who adopts and acts
upon a belief that his client should be convicted "failfs] to function
in any meaningful sense as the Government's adversary." Cronic ,v466 U.S.-
666- 104 S. Ct. at 2051. Whether the attorney is influenced by loyalties
toother defendants, third parties, orrgoverment, "if [he] entirely
fails to subject the prosecution's case to meaningful advesarial testing,
then, there, has been a denial of Sixth Admendment, rights." Id., 659 104
S.Ct. a€ 2047. The State's duty to ensure effective assistance of counsel
goes further than the actual breakdowns in the adversary process. In
Strickland, the Court, considered when a defense attorney may be Consti
tutionally ineffective "simply by failing to render 'adequate legal assis
tance." 466 U.S. 344, 100 S.Ct- at 1716 (Quoting Culyer)- When the trial
or sentencing process is rendered unreliable because it has clearly lost
its- adversary character, the Sixth Admendment violation is clear.
When an ineffective assistance claim rests exclusively on the inadequacy
of an attorney's strategic legal decision, however, the process retains
its formal adversary nature. In this situation, the defense attorney may
have advocated his client's interest to best of his ability. Nevertheless,
the Court has held that if the attoney's inadequacies fall below that of
a reasonable competent attorney and his errors may have effected the
outcome of the proceeding, through formally adversarial, is deemed
11.
GROUND THREE CONT:
inadequate to satisfy the Sixth Amendment. See, Strickland, 466 U.S--
686 104 S. Ct. at 2063. The Court in Strickland adopted a two-prong
test to help lower corts determine when errors in legal decision-making
alone effectively render the guilt process nonadversarial. First, an^
attorney should be judged by an objective standared focusing on the
defense attorney's knowledge at the time of the relevant proceeding. Id.
at 687-88, 104 S.Ct. at 2064-65. Reveiwing courts should avoid hindsight
and second-guessing, and extend deference to counsel's tactical judgments.
at 689, 104 S. Ct. at 2065. Courts must however, determine reasonably that
such investigations were not necessary. Id. at 691, 104 S. Ct. 2066. We
defined the reasonableness standard as "the 'excersie [of] the skill,
and judgment and diligence of a reasonable competent defense attorney.'"
See, Burney, 756 F.2d at 790 (qouting Dyer v. Crisp, 613 F.2d 275,278
(10th Cir.)(enbanc), cert, denied, 455 U.S. 945, 100 S. Ct. 1342 63 L. Ed.
2d 779 (1980)). Though the Court intended the prejudice standard to be
flexible, See Strickland, 466 U.S. 696, 104 S.Ct. at 2069, it emphasized
that a "defendant need not show that counsel's deficient conduct more r."••;•:•-<
likely than not altered the outcome in the case." Id. at 693, 104 S. Ct.
2069.
WHERE ATTORNEY'S DEFICIENT PERFORMANCE PREJUDICED THE PETITIONER.
The mandatory serverance under § 3.04(a), only applies to joinder of
property offenses, [property offenses are tttors^erOffesnses listed under
Title 7 of the Penal Code.] Overton v. State, 552 S.W.2d 849(Tex.Crim.-
App.1977), nonproperty offenses all offenses other than listed under
Title 7 of the Penal Code. See, Waythe v. State, 533 S.W.2d 802 (Tex.App.-
1976). Capital Murder, is not a property offense. It is listed as an
offense against the person under Title 5 of the Penal Code. V.T.C.A. Penal
Code 19.03. However, the right to force an election, which follows from
implicit statutory ".restrictions-relating to the manner in which non-
property offenses may be joined in an indictment, is supported by pre
cedent, it holds that the legislature, by its admendment of article 21.24,
V.A.C.C.P., has implicitly prevented the State from alleging, in single
indictment, two or more nonproperty offenses if those offenses arose out
of the same criminal "incident, act or transaction." Generally, "trans
action" has come to mean a criminal event and the various particular
offenses, committed within that event. See, Drake, supra, at pp.945-49
(petitioner's original brief Appendix & pg.16). The starting and the
ending point of the event depends upon the definition thios Court applies
to the facts. Id., at least five such definitions has been applied
constantly. See, Practice Commentary, V.T.C.A., Penal Code, §3.01, See
12.
GROUND THREE CONT:
also Ex parte Ellison, 699 S.W.2d 218 (fex.Cr.App.1985)(presence of one
transaction is ^obvious"); Ex parteiSiiUIker,, 686 S.W.2d 617, 618(Tex.Cr.-
App.1985). (Transaction=Whatever parties agree it means); Drake, supra
at 940, n.3,(Transaction=all conduct directed at accompolishment of'-
single criminal objective); id., at 947 (Transation=all•conduct result
ing faro-m; single guilty impulse); Mclntire v. State, 698 S.W.2d 652, 656
(Tex.Cr.App.1985)(Transaction=all conduct occurring within close time
frame and single guilty intentrrunning through acts); Fortune v. State,
699 S.W.2d 706, 707 (Tex.App.-Beaumont 1985, pet-pending)(Transaction=
conduct directed at a particular victim). Drake v. State, 686 S.W.2d 935,
944 (Tex.Cr.App.1985). From our reasoning in Drake, supra, we must con
clude that article 21.24, supra, implicitly prevents the State from
alleging both property and nonproperty offenses together in the same
indictment. Inaddition, our common law has long prevented the State from
alleging, in ar.single indictment, more than one nonproperty offense
arising outcof seperate transactions. Campbell v. State, 163 Tex.Cr. 545,
294 S.W.2d 125, 128 (1956)("an indictment chargingfseperate and distinct
offenses in different counts is subject to the objection of misjoinder...")
See also, Smith v. State, 101 Tex. Crim. 220, 123 S.W. 597, 600 (1909).
Taken together, these pleading :limitations prevent the State, in the
presence of an objection, from alleging more than one nonproperty offen
se in a single indictment, regardless of the number of transactions invol
ved, Consequently, distinctions based upon the "number of transctions"
present have been rendered meaningless for misjoinder purposes. "Trans
actions" are still relevant for the purposes of limiting convictions
resulting from a single jury verdict, see 37.07 V.A.C.C.P. and Ex parte
Siller, 686 S.W.2d 617 (Tex.Cr-App.1985)(one two convictions in same tri
al reversed, in absence of objection, because both nonproperty offenses : "
arose but of thie same transaction) with Drake,supra, (both^convictions
in the same trial affirmed, in absence of objection, because each non-
property offense arose from seperate transaction); Cf. also Ellison,
supra (one of two convictions in same trial reversed, in absence of
objection, because both nonproperty offenses arose from the same trans
action); but See and cf- arts. 37.10 and 44.24 (repealed); Wooten v.
State, 11 Tex.Cr.r. 524, 15 S.W.2d 635, 636 (1929)(Appellate Court lacks
authority, even in the absence of objection, to reform jury verdict to
reflect single conviction; reversal of each conviction is required;
number of transactions irrelevant). See also and cf. Ex parte .Johnson,
697 S.W.2d 605, 612 (Tex.er.App.1985)(Clinton, J. dissenting).
13.
GROUND THREE CONT:
Moreover, these differences continue despite the absence of any use of
the term "transqction" in article 37.07 supra. However, we have no
opertunity presently to resovle: these ambiguties because Petitioner seeks
reversal on Ineffective assistance of counsel. For the State to avoid
joinder problems, an indictment for a nonproperty offense, whether arising
one transaction or seperate transactions should contain only one count an
as many paragraphs as necessary to allege the varoius manner and means of
committing the alleged offense. A "Count" is the portion of ran indictment
that charges a distinct statutory offense. 22 Tex. Jur. 3d 655, Criminal
taw, §52370. The presence of more than one count in an indictment therefore,
would necessarily mean that more than one offense had been charged.
A "paragraph" is a sunset of a count and is used to charge alternative
methods of committing the same statutory offense. Art.21.24(b0, V.A.C.C.P.,
Riley v. State, 658 S.W.2d 818 (Tex. App.-FortisWorth 1983 no pet.). The
presence of seperate paragraphs within a single count, therefore, would
not signfy the charging of more than one statutory offense, but rather
signfy the alternative manner-and means of committing the "same -statutory
offense. Riley, supra (alternative manner or means of committing Murder
may be charged in seperate paragraphs of same indictment). We donot
decide whether the implicit pleading requirements of article 21.24, supra
allow the State to join nonproperty offenses through seperate indictments.
However, even if the State could successfully join nonproperty offenses for
a single trial through seperate indictments, it would still face at least
two (2) remaining procedural hurdels that might prevent it from obtaining
more than one conviction in a single trial. First, a defendant might still
have a constitutional right to request serverance of offenses into sepe
rate trials. Art. I § 10 Tex. Const., Ex parte Quintanilla, 151 Tex. Crim.
328 207 S.W.2d 377, 378 (1948) ("...[T]he trial of all four seperate
cases before the jury at the same time over [defendant's] objection depriv
ed him of the valuable right of trial before an impartial jury in con
travention of art. 1, Sec. 10, of the State Constitution ") Second,
even in absence of an objection, it would seem that a trial court only
has authority to accept a general verdict from the jury in a trial for
nonproperty offenses. Art- 37.07 supra; See n.10, ante, at p.182. We
believe that, following our abandonment of the Carving Doctrine, the State
effectively will have to obtain multiple convictions for nonproperty
offenses through multiple convictions for nonproperty offenses through
multiple trials until the legislature alters pleadings and verdict
instructions. Given the mandatory serverance under § 3.04, supra,
14.
GROUND THREE CONT:
the same practical result is likely to follow whenm the State attempts
to obtain multiple convictions for property offenses. Counsel has a
duty to bring to bear such skill and knowledge as will render the trial
a reliable adversarial.testing process. Here, the counsel should have
filed a pre-trial motion to sever, as well as objected during trial.
For there is a strong probability that the outcome would have been
different. Such deficient performance prejudiced the outcome of the trial
and resulted in two convictions for the same transaction, in one burg
larious entry, also, overwhelmed the Petitioner, by forcing him to be
tried by the same jury for multiple offenses, said deficient performace
by Petitioner's attorney, resulted in Petitioner being tried by a bias
jury. It has appeared from the record that reversible error has appeared
and such cause should be reversed and remanded to the trial court, or in
lieu, dismissed with prejudice.
GROUND FOUR:
INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL'S FAILURE TO FILE MOTION
TO QUASH AFFIDAVIT AND INFORMATION THAT WAS UNSIGNED, HHENCE PROSE
CUTION WAS COMMENCED UPON THE STRENGTH OF AN UNSIGNED INFORMATION.
Petitioner's attorney failed to file a motion to quash the Information
that does not have a signature on it. We are left with the proposition
that the case proceeded to a conclusion with no documentation in the
file to reflect that Mark Skurka or anyone else signed the Informtion
charging Petitioner with an offense a futher jurisdictional defect of
itself. Holly v. State, 460 S.W.2d 136, 137 (Tex.Crim.App.1970).(See
Exhibit "A" in Petitoner's appellate brief). T.C.C.P. Ann. art. 21.21(a)
Lacy V. State, 160 Tex. Crim. 95, 267 S.W.2d 139, 141 (1948).
Because Petitioner is in need of an attorney at every step of the pro
ceeding it is ephasized here that attorney's skill and knowledge of the
laws and practices of a criminal trial and proceedings.
Criminal Law Keynote-641.13(2):
Performance of defense counsel was not only contitutionally unreasonable
and ineffective, but counsel abandoned required duty of loyalty to his
client; counsel did not simply make poor strategic choices; he acted
with reckless disregard for his client's best interest and, at times,
apperantly with the intention to weaken his client's case. U.S.C.A.
Const. Amend« 6th.
15.
GROUND FOUR CONT:
Because the Information and the Affidavit are not signed, it was
attorney's duty to file motion to quash the information and indictment.
Such an Information and Indictment has held to be void. See, Holly v.
State, 460 S.W.2d 136, 137 (Tex-Cr-m.App.1970); also See, Shackelford v.
State, 516 S.W.2d 180 (Tex.Crim.App.1974); Thomas v. State, 474 S-W-2d
236, 237 (Tex-Crim.App.1971)(fundamental error requiring reversal without
point of error on appeal); See also, Morey v. State, 744 S.W.2d 688, 670
(Tex.App.-San Antonio 1988\ no pet.)(granting relief based on trial
court objection and point of error on appeal). The Information fails to
meet the requirements of Tex.Code of Crim. Proc- Ann. art-21.22(Vernon's}
1989). Decisions like Holly, Thomas, and Shackelford, which apparently
granted relief without objection, predate the enactment of T*G.CP. art-
1.14(b)(Vernon's Suppil990), which requires a pretrial objection to defect
of form or substance in an information in order to obtain appeallate re
view. Hill v. State, 750 S.W.2d 2, 3, (Tex.App.-Forth Worth 1988, pet.ref-
d); Shaw v. State, 728 S.W.2d 889, 890 (Tex.App.-Houston[lst Dist.] 1987,
no-pet.); See Tex.Const. art. V § 21(b). They also predate enactment of
Tex.R.App. 52(a), which requires a trial court objection, motion, or
request as a predicate of appeallate review. We conclude that these sta
tutes, rules, and constitutional developments change the result that would
otherwise be required by decisions like Holly. It is because of attorney's
errors in allowing a trial to proceed to an conclusion without any one
signing an Information or Indictment, that rendered the process fundamen
tally defective. It is here that Petitioner's attorney's knowledge, and
skill comes to bear. (Remember Petitioner had Three(3) attorneys at trial)
the Supreme Court in Strickland adopted a two-prong test to help lower
courts determine when errors in legal decision-making alone effectively
render the guilt determination process nonadversarial• First an attorney
should be judged by an objective reasonableness standard focusing on the
defense attorney's knowledge at the time of the relevant proceedings.
We defined the reasonableness standard as "the 'excerise [of] the skill,
judgment and diligence of a reasnable competent defense attorney.'"
Citing, Burney, 756 F.2d at 790; Criminal Law Keynote-641.13(14):
Constitutional standard for attorney performance is that of reasonable
effective assistance, which is defined as excersie of the skill, judgment
and diligence of a reasonable competent defense attorney. U.S.C.A. Const.
Amend. 6. The Court intended the prejudice standard to be flexible, See
Strickland, 104 S. Ct. at 2068. T.C.C.P. art. 1.14 Waiver of Rights:
16 .
GROUND FOUR CONT:
it emphasized that a "defendant need not show that counsel's deficient
conduct more likelely than not altered outcome of the case." Instead
the defendant bears the burden of showing "that there is reasonable
probability that, but for counsel's unprofessional errors, the results
of the proceedings would have come but different, a reasonable probabili
ty is a probability sufficient to undermine confidence in the outcome."
Id., 694, 104 S.Ct- at 2068. T.CC.P. art- 1.14 Waiver of Rights:
(a) the defendant in criminal prosecution for any offense may waive any
rights secured to him by Taw except that a defendant in a capital felony
case may waive the right of trial by jury only in the manner permitted
by art.1.13(b) of this code. See also, sec.(b) of this Code.
Punishing a lawyer's intentional and unintentional errors by closing the
courthouse door to his his client is both senseless and misdirected method
of deterring the slight of State rules. It is senseless because unplanned
and unintentional action of any kind generally is not subject to deter-
rance; and, to the extent that it is hoped that a threatened sanction ad^.v-
dressed to the defense will induce greater care and caution ©n: tke"-"part
of the trial lawyers, thereby forestalling negligent conduct and error,
the potential loss of valuable State remedies would be sufficient to this
end. And it is misdirected sanction because even if penalization of in
competence or carelessness will encourage more through legal training and
trial preparation, the Petitioner, as-opposed to his lawyer, hardly is
the proper recipent of such a penalty. Espicially with fundamental consti
tutional rights at stake, no fictional relationship of principal-agent or
the like can justify holding the criminal defendant accountable for the
naked errors of his attorney. This espicially true when so many indigent
defendants are without any realistic choice in selecting who ultimately
represents them=ai trial. Indeed, if responsibility for error must be
apportioned between the parties, it is the State, through its attorney's
admissions and certification policies, that is more fairly held to blame
for !-:•: the fact that practicing lawyers too often are ill-equipped to
act carefully and knowledgeably when faced with decisions goverened by
State procedural requirements. Hence, Petitioner agrees with the proper
functioning our system of criminal justice, necessarily places heavy
reliance on the professionlism and the judgment of trial attorneys.
Petitioner was denied his rights of effective assistance of counsel
guaranteed by U.S.C.A. 6, Amend., U.S. Const. A system that ascribes the
absolute forfeiture of Petitioner's constitutional claims where his
17.
GROUND FOUR CONT:
lawyer manifestly excersies no professional judgment at ail-where care
lessness, mistakes, or ignorance is the explantion of the procedural
defaults. It is regrettable that certain errors that might have been
cured earlier had trial counsel acted expenditiously must be corrected
collaterally and belatedly. Hence, Petitioner's attorneys was deficient
and such deficient conduct prejudiced the trial, to such an extent that
there is a reasonable probability that the outcome wouls have been diff
erent, this is just one of the litanies of errors made by counsel. When
Petitioner's "counsel addressed the venire, see Vol.5.,pp.99:
Line 20: Mr. Woerner: May it please the court,
Line 21: Counsel for the State, ladies and gentleman:" of the jury.
Line 22: Now, This is a kind of interesting case for me, I've
Line 23: been doing this for over 30 years. I've probably tried
Line 24: way more than 30 felony cases. I've tried over
Line 25: a dozen murder casese. I've found myself in
Pg.100:
Line 1: front of a jury telling them that my client is guilty of
Line 2: murder. That's never happened. I guess it's because we
line 3: have sorts of a unique set'of facts and circumstances.
Here the attorney shows his disenchantment with the case and virtually
gift wrapped his client. Here we have an experienced attorney with over
30 years of experience, over 12 murder trials, (he does not say how many
he has actually won), See RR. Vol-4,pg.99,20-25. How in the name of Justice
he does not file the requsite pre-trial motions that would have changed
the outcome of the proceedings? There is a probability that the outcome
of the trial would have been different! We have one or two things in
operation here; either the attorneys' virtually sabotaged the Petitioner's
defense, or was an ingenious trial strategy knowing that, because of the
high profile nature of the case, and the particular judge presiding over
the:trial would guarantee this case would not survive Appellate review
in a meaningful scrutiny. Such actions negated Petitioner's persumption of
innocence. Because of the aforementioned acts and ommissions of Petition
er's attorney which did not subject the State's case to the adversarial
testing process. It has appeared from the record see, (Exhibit "A") that
said indictment, information, and affidavit does not have the required
signature, thereby not conferring jurisdiction and such procedural default
by attorney of record rendered ineffective assistance of counsel and
said cause should be reversed and remanded with instructions.
18.
GROUND FIVE:
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR NOT FILING
MOTION TO CHANGE VENUE IN HIGHLY CHARGED CRIMINAL
PROSECUTION IN ACCORDANCE WITH V.T.A.CCP. ART. 31..03,
SAID WAIVER BY ATTORNEY DEFAULTED PETITIONER'S RIGHTS
TO RAISE GROUND FOR APPELLATE REVIEW.
Petitioner complains that attorney's deficient performance prejudiced
the outcome of the trial. Petitioner an Alice police officer was the
subject of extensive media coverage in the county and surronding counties
wherein the instance offense took place. Furthermore, the internet and
the social media followed said case. Petitioner was the subject of a
documentray, wherein a series of local television stations broadcast
the events and circumstances surrounding the instant offense. See App.
Brief (Exhibit "G"). Under art. 31.03 (a) a change of venue may be granted
in a felony or a misdemeanor case punishable by confinement on the writ
ten motion of the defendant, supported by his own affidavit and the affi
davit of at least two credible persons, residents of the county where the
prosecution is instituted, for either of the following causes*, the truth
and sufficiency of the court shall determine:
1. That there exists in the county where the prosecution is commenced so
great a prejudice against him that he cannot obtain a fair and impartial
trial; and
2. That there is a dangerous combination against him instigated by influ
ential persons, by reason of which he cannot expect a fair trial.
Said publicity was pervasive, prejudicial, and inflammatory. Here we are
concerned with the attorney not filing the pre-trial motion for change of
venue and whether said attorney by his deficient performance prejudiced
the Petitioner? We must go to the record to ascertain if in fact attorney's
deficient performance prejudiced the Petitioner. The court asked the poten
tial jurors (Vol.2,pg.30, line:6-23). Anyone who knows about the case
through the media? 2,3,5,6,7,8,9,10,11,13,16,17,18,19,21,22,24,25,26,27,
29,30,31,33,34,35,37,41,42,43,44,45,46,48,49,53,54,55,56,58,59,61,62,63,
64,67,68,69,70,71,7 2,74,77,78,80,83,84,86,87,90,93,94,96,99,100. Who has
personal knowledge, 17- Thos e who have already made up their minds who
cannot be fair and impartial (Vol.2,pg.30,line:23-25.) 2,5,13,25,26,27,29,
30,31,34,35,41,44,45,58,59,63,68,71,80,84,87,88,90,94,96. In (Vol.2.,pg.
58,1-25,pg.59, 1-25, pg.60, 1-25),, juror no. 2 explians in detail about the
Ixtensive coverage in the CaJler Times-She describes the kidnapping of
Petitioner's son, wherein she has has formed an opinion as to the vio
lence in the case, also defense attorney Mr. Woerner Stated: "he never
19.
GROUND FIVE CONT:
seen so many people who have their minds made up in a case, even cases
that had more publicity. (Vol.2,pg.56, 23-24.) Defense attorney should
have immeadiately filed motion for change of venue, knowing from the
percentage of potential jurors that had already formed a strong opinion
about the guilt of the Petitioner, that his client could not recieve a
fair and impartial trial. "A defendant must show an ability to obtain an
impartial and fair trial. Coupled with counsels' disenchanmentTPetitioner
could not recieve a fair and impartial trial because defense counsel had
already given up. See, Williams v. State, 897 S.W.2d 351 (Tex.Crim.App.),
cert, denied, 516 U.S. 946, 116 S. Ct. 385, 133 L.Edi2d 307 (1995). To
justify a change of venue based on media attention, a defendant must show
that the publicity about the case was purvasive, prejudicial, and inflam
matory. Bell v. State, 938 S.W.2d 35 (Tex.Crim.App.1996), cert, denied,
522 U.S.827, 118 S. Ct. 90, 139 L. Ed. 2d 46 (1997). -Petitioner's attorney
did not move for change of venue based on recent and significant amounts
of media coverage and that publicity regarding similar cases had the eff
ect of creating greater prejudice, bringing "some afore-thought to people"
and making it "very hard" to find a fair and impartial jury. Petitioner
could have called a number of witnesses that were listed on the prosecu
tions witness list for this eventuality. The prosecution was prepared tor
fight a change of venue motion, witnessess from several television statio
ns, newspapers, etc., were prepared to testify to the number of potential
jurors exposed to these stories. See, (Appellant's brief Exhibit"C").
Petitioner's attorney could have produced the requisite affidavits needed
to bloster his client's need for change of venue. See, (Clerk's Record,
pgs.30,32,and 43). Said media coverage was inflammatory, pervasive, and
prejudicial, in as much that the panel that appeared a great percentage
of the array.who had already made up their minds abut Petitioner's guilt,
who could not be fair and impartial. More than \ 70% of the panel members.
See, (RR. Vol.2,pg.31). Here you have 77 members of the array who have
followed the case in the media who have extensive knowledge of the case
and as such including an alleged kidnapping of Petitioner's son ( a crime
he was not on trial for), which futher exceberrated the coverage and the
amount of times this coverage was repeated in a course of a year was
astronomical. Therefore, even after trial court conducted vior dire, it
is clear from the record that the trial court tried to rehabilitate the
remainder of this poisoned panel. We must also bear in mind that the
trial court was in a unique position of hearing the testimony of the po
tential jurors and gauging the sincerity of their responses in light of
the publicity about the case. But the successful qualification of a jury
20.
GROUND FIVE CONT:
panel is not the sole criterion in determining whether a defendant is
entitled to a change of venue, since concious or subconcious juror
prejudice can effect answers obtained on vior dire. Although it was
possible to select a jury whose members were not subject to a challenge
for cause, Petitioner was entitiled to a change of venue if he could
show that there were influences in the community which could affect the
answers on vior dire. There are two things that distinguish this case
from others in which a majority of the venire is familiar with the case,
"first, the nature of the publicity is quite different because, Petitioner
was a police officer, there was a Burglary, a Murder, Kidnapping, an Amber
Alert went out, there was a SWAT-standoff/ Hostage situation, News Stati
ons reported widely and did extensive coverage on the day and fora year
after until the date of trial, potential jurors had the oppertuinty to
watch it unfold. Second, a large number of potential jurors could not
set aside their opinion. This strongly indicates that pretrial publicity
resulted in actual identifiable prejudice to petitioner." Also the media
coverage was not accurate and objective, because it reported an actual
kidnapp when there was none. Because Petitioner's attorney not filing the
motion for change of venue, it rendered him deficient in his performance
and because of the ommission it is a probability that the outcome of said
trial would have been different. It must be remembered that the trial
judge ordered a gag order on the case. See, (CR.pg.30). Here we have the
acts and ommissions of said attorney, who effectively abandoned his client.
Given the two prongs of Strickland, said deficient performance, coupled
with the extreme prejudice that Petitioner was tried in a hostile envi-
roment, under media bias, Petitioner's attorney should have moved for
change of venue. Wherefore, said counsels deficient performance resulted
in Petitioner not recieving a fair and impartial trial, based on jurors
being biased. For said procedural default appearing in the record, said
cause should be reversed and remanded and said counsels should be sanction
ed for thier derilict performances.
GROUND SIX:
TRIAL JUDGE ABUSED HER DISCRETION BY NOT ORDERING
CHANGE OF VENUE AFTER IT BECAME IMPOSSIBLE- TO
SEAT A JURY THAT WAS UNBIASED IN HIGH PROFILE CASE.
In change of venue cases art.31'J01 the judge should filed upon her own
21.
GROUND SIX CONT:
motion to change venue after the vior dire revealed that Petitioner
could not recieve a and impartial trial. Because the jury that was
actually seated was tainted by the rest of the jury pool, along with
the fact that this case was tried in the media way before the actual
jury was pooled. Because the Sixth Amendment gives the Petitioner the
right to a fair and impartial trial it is the presiding judge who conducts
the vior dire of the prospective jurors, that said motion by court should
have been rendered. Because the judge sees and hears the answers to the
questions promulgated by attorneys, as well as her individual vior dire
of prospective jurors. t:It was .impossible to:seat a jury in this high pro
file, media driven trial. Trial judge abused her discretion in Capital
Murder trial was prjudicial and imflammatory, and thus change of venue
was warranted after a large number of venire panelist were disqualified
for cause because they were unable to set aside their opinions of defen
dant's guilt. See, (RR. Vol.2,pg.30,9,22, pg.31,13-25). These circumstances
required a conclusion by the trial judge that publicity was inflammatory -:
and prejudicial, and media broadcasts and newspaper reports of the case
were not objective in their coverage, along with internet blogs, coupled
with defense attorney telling venire panelist that Petitioner was guilty,
not only infringed on Petitioner's persumption of innocence, but denied
Petitioner his Sixth Amendment right to be tried by a fair and impartial
jury. Such actions tainted the jury to such an extent that Petitioner
could not recieve a fair trial. See, 14th Amend. U.S. Const. Also, V.T.C.
C.P. art.31.03(a), Mayola v. Alabama, 623 F.2d 992, 998 (5th Cir.1980),
Von Byrd v. State,'5569 S.W.2d 883, 890-891, Russel v. State, 146 S.W.3d
705, 714 (Tex.App.-Texarkana 2004, pet.ref'd), Crawford v. State, 685
S.W.2d 343, 349-350. The number of jurors that were unable to serve on
the jury in this case demonstrates the extent of the pretrial publicity
had permeated the community. Here out of 100 a large percentage more than
\ could not be impartial and already formed their opinion.=See, (RR. V&1.
2,pg.31,22-25-)• These panelist could not but aside their opinions is
reason enough to consider the entire community "*!infected" by the pre
trial publicity and prejudice, and inflammatory atmosphere and those act-:.~.
ually seated were poisioned by the others. For this reason said cause
should be reversed and remanded, and said former trial judge should be
taken on vior dire as for her acts and ommissions.
22.
GROUND SEVEN:
INEFFECTIVE ASSISTANCE OF COUNSEL FOR ABANDONING PETITIONER
AND ACTED AS NO COUNSEL AT ALL, ACTING AS MERE FREIND OF COURT.
Said counsel abandoned his client and acted as no counsel at all,
only mere friend of court. In the totality of representation by
defense counsels, Mr. Mark Woerner, Mr. Steve Schiwetz, and Mr.
Mark A. Gonzales, abandoned their client. Mr. woerner at the onset of
trial was not concerned about Petitioner being shackled, nor did any
of the defense attorneys complain, nor object. Furthermore, Mr. M.
Woerner told the jury that his Client was guilty, which nullified any
any defense, in regard to Count II, and resulted in the jury being biased.
A strategy that petitioner did not approve of nor was able to communicate
his disbelief to attorneys about such remaks that infringed upon his
persumption of innocence.
Ineffective Assistance of Counsel:
The Supreme Court has long "recognized that 'the right to counsel is the
right to effective assistance of counsel'" under the Sixth Amendment.
Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 2063, 80 L.Ed.2d.
674 (1984); In this case, we find that the defense counsel did not put up
any meaningful defense during the punishment phase, nor file pretrial
motion that Petitioner wasnever convicted of anyrfelony in this State or
any other State, See V.T.C.C.P. art.42.12, Sec.4(d<)( 8) (c) states: A
defendant is eligible for community supervision under this section only
if before the trial begins the defendant files a -tswq£9" motion to the
judge that the defendant has not previously been convicted of a felony in
this or any other state, and the jury enter in the verdict a finding that
the information is true. See (RR.Vol.2,pgs.9, 1-17). Because of the force
ful argument by the State's attorney Mr. McCaig that Petitoner was not
eligible for probation,Petitioner's attorney should have researched fur
ther in the same code to ascertain that Petitioner was eligible for pro
bation/community supervision. If counsel would have filed the pre-requi-
site motion with the trial judge. Furthermore, said counsel did not rea
sonably argue on his client's behalf during punishment phase. See, (Vol.
5.pg.126,3).
Line 4: The Court: Okay.
Line 5: does the defense have any additional evidence for puposes of
punishment?
Line 6: Mr. Woerner: No, your Honor.
Line 7: The Court: All right. Argument?
Line 8: Ms. Dorsey: Judge, the State is going to ask for life on that
Count, too.
23.
GROUND SEVEN CONT:
Line 10: Mr. Woerner: Your Honor, we're just
Line 11: going to simply ask the Court to consider a lesser
Line 12: sentence, based on all the facts and circumstances in
Line 13: this case. That's all I have, Your Honor.
Said counsel's performance was so deficient through counsel's disenchant
ment that he totally abandoned his client. Petitioner's second count
was a sentence range 5-99 or life. Because Petitioner was never convicted
of a crime nor was there mitigating factors that constituted a life sen
tence. Counsel did not present any evidence of~futaee -dangerousness, nor
whether rehabilitation would help his client such ommissions rendered
counsel's performance deficient and prejudiced the outcome of the trial.
Because the court did not consider the full range of punishment based on
counsel's deficient performance. Because counsel did not present any
mitigating factors in rebuttal to the State's recommendation of a life
sentence, there was a reasonable probability that the outcome would have
been different. This is the purposes of serverance for filing such a
motion , so that the Petitioner would not be overwhelmed by the count I.
For this reason the State had gained a tactical advantage over Petitioner,
and count II was overwhelmed by count I. See, Osborn v. Schillinger, 861
F.2d at 626-627. The Court in Strickland adopted a two-prong test to help
lower courts determine when errors in legal decision-making alone effect
ively render the guilt determination process nonadversarial. Whether the
attorney fufilled his duty to make reasonable investigation was not
necessary. Id. at 691, 104 S.Ct- at 2066. We defined reasonaleness stan
dard as "the 'excercise [of] the skill, judgment and diligence of a rea
sonable competent defense attorney•'" Burney, 756 F.2d at 790 (quoting
Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.)(enbanc), cert.denied, 455
U.S. 945, 100 S. Ct. 1342, 63 L. Ed. 2d 770 (1980)). A reasonable probability
is a probability that absent, the errors, the sentencer-including appel
late court, to the extent that it independently reweighs the evidence-
would have concluded the balance of the aggravating factors and mitiga
ting circumstances would have resulted in a life sentence on count two.
Now the additional question is; could this also be applied to count one
in relation to V.A.CCP. art .42.12(8) (c)? wherefore said counsel should
have filed pretrial motion and affidavit that his client was never convic
ted of a felony in this state or other. Because of the acts and ommissi
ons of counsel, such ommission counsel breached his loyalty to his client-
Defense counsel completely failed to investigate other lines of pluasible
defense and was inadequately prepared to effectively present the tactical
defense he chose. "[I]n a capital case the attorney's duty to investigate
24.
GROUND SEVEN CONT:
all possible lines of defense is strictly observed." Coleman, 802 F.2d at
1233; cf. Burger, 107 S. Ct. at 3126(less than complete investigation
justifiable only "to the extent that reasonable professional judgments
support the limitations on investigations")(qouting Strickland, 466 U.S.
at 690-91, 104 S.Ct- at 2066)). Counsel's responsibility was to argue the
sentencing question, he did little in preperation- See Osborn, F.Supp. at
616-617. "It should be beyound cavil that an attorney who fails altogether
to make any preparations for the penalty phase of a capital murder trial
deprives his client of reasonable effective assistance of counsel by an
objective standard of reasonableness." Blake v. Kemp, 758 F.2d 523, 533
(11th Cir.1985), cert.denied, 474 U.S. 998, 106 S. Ct. 374, 88 L. Ed. 2d 367
(1985). Here counsel failed to defendant being shackled, failed to investi
gate the extensive media coverage, television documentrary which featured
Petitioner in family violence, failed to bring forth witnesses' from the
media outlets and internet blogs who gave commentaries on case. Failed to
to adequately prepare a defense, nor subject the state's case to the
adversarial testing process by having fellow police officers who were
having illicit relations with his wife there to testify. Nor did he inter-
veiw them nor have them appear before the court, officers, Buzz Esparza,
Luis rene Ozuna, Noe Roel, Emede Reyes, and Frank Estrada. Defense attorney
did produce phone records, see(Petitoner's appeal brief Exhibit 14-16).
That was the extent of defense preparation for capital murder trial.
Counsel did not include any investigation of these individuals who was
having illict affairs with deceased. Although court ordered physcological
testing of the Petitioner, there was no report by the physcologist includ
ed in the record, nor was he called to testify to Petitioner's mental
condition at the time of offense- These were just some of the failures of
defense counsel in prepartion for trial- Once counsel telling jury that
his client was guilty of murder, he was wholly unprepared to make a plata-
ble defense of his theory and effectively undermined Petitioner's per
sumption of innocence in Count I and Count II- said was ho defense at all
but a tactical retreat, and pure abandonment of his client- Even granting
deference to counsel's choices, we cannot conclude that he need not under
take further investigation," before proceeding with an argument he was
wholly unprepared to make. Burger, 107 S. Ct. at 3126. Counsels performances
did not meet constitutional standards. In addition, the Court should find
clearly established that Petitioner's attorneys so abandoned their "over
arching duty to advocate the defendant's cause, Strickland, 466 U.S. 688,
104 S.Ct- at 2064, that the state proceedings were almost totally non-
adversarial- Informing the jury panelist that his client was guilty
25.
GROUND SEVEN CONT:
permeated that guilt thru both counts and destroyed any persuption of
innocence, counsel's actions in regard to sentencing even more clearly
indicate the abandonment of his duty of loyalty. Nix v. Whiteside, 475
U.S. 157, 106 Gt- 988, 1006, 89 L.Ed .-2d 123,(1986) (Blackmail-, J., (Concurring
in judgment)("except in the rarest of cases, attorneys who 'adopt the role
of judge or jury to determine the facts,' pose a danger of depriving their
clients of the zealous and loyal advocacy required by the Sixth Amend.")
(qouting United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 112 ;(3d Cir.
1977) (citation omitted);). The most striking indication of counsel's per
formance and failure to fufill his duty of loyalty to his client is from
his behavior at the trial itself. "Counsel at the summation of the trial,
counsel referred to the difficulty his client had presented to him. See
(RR. Vol.5.pg.99):
Line 20: Mr. Woerner: May it please the court,
Line 21: Counsel for the State, ladies and gentlemen of the jury.
Line 22: Now, this kind of an interesting case for me. I've
Line 23: been doing this for over 30 years. I've probably tried over
Line 24: way more than 30 felony cases. I've probably tried over
Line 25: a dozen murder cases. And I've never found myself in
(RR.Vol-5,pg.100,1-3,12-20):
Line 1: front of a jury telling them that my client is guilty of
Line 2: murder- That's never happened. I guess it's because we
Line 3: have sort of a unique set of facts and circumstances.
Line 12: Now, why did this happen? why would
Line 13: someone who is a respected member of his community, a
Line 14: hardworking , law-abiding, law-enforcing individual
Line 15: commit this terrible act? why would he murder his wife
Line 16: an destroy his family? I'm not sure that can totally
Line 17: be answered, sometimes people snap. Something sets
Line 18: them off and thay do something totally out of character
Line 19: for them. Because, really, there was obiviously nothing
Line 20: good that was going to come out of this.
Counsel is in fact telling the jury he could not present any mitigating
circumstances when evidence against his client is so overwhelming.
In closing counsel lamented; (RR.Vol.5,pg.102,13-16): 13: If:yccircatmit"a tianocide
Line 14: under these circumstances, no matter what your reason
Line 15: is you're guility of murder- So Joey is not walking out
Line 16: out of here today no matter what.
Petitioner's attorney did not simply make poor choices; he acted with
reckless disregard regard for his client's case.
26.
GROUND SEVEN CONT:
Whatever the reason the record supports that counsel turned against
his client. There is no apperrant reason for counsels behavior,
altough he repeated many times that his client was guilty and how
difficult this case was. This conflict in loyalty unquestionably
affected his representation. A defense attorney who abandons his duty
of loyalty to his client and effectively helps-the State in an effort to
attain a conviction suffers from an obivious conflict of interest, such
an attorney, like unwanted counsel, "'represents' the defendant only
through a legal fiction." Faretta VI. California, 422 U.S. 806, 821, 95
S. Ct. 2525, 2534, 45 L. Ed. 2d 562 (1975). In fact an attorney is burdened
by a conflict between his client's interest and his own sympathies to
the prosecution's position is considerably worse than an attorney with
loyalty to other defendants; because the interests of the state and the
defendant and the state are necessarily in oppostion. As the Supreme Court
has asserted: "The right to effective assistance of counsel is thus the
right of the accused to require the prosecution's case to survive the
crucible of meaningful adversarial testing... [i]f the process loses its
character as confrontation between adversaries, the constitutional gua
rantee is violated." Cronic, 466 U.S. at 656-57, 104 S.Ct. at 2045. It is
the Petitioner's conclusion that his counsels of record did provide him
with effective assistance of counsel. The performaneecol counsels was
constitutionally unresonable, more importantly, the evidence presented at
punishment hearing overwhemingly established that his attorney abandoned
the required duty of loyalty to his client. Petitioner's attorneys did
not just simply make poor choices; he acted with reckless disregard for
his client's' best interests and, at times, apparently with intention to
weaken his client's case, it must be remebred that Petitioner was never
convicted of a crime or any felony and was eligible for probation, also •
for purposes of Count II, there was no argument by counsel on his client's
behalf. Trier of fact abused her discretion a-..d was biased in her senten
cing of Petitioner. Petitioner's counsel advising his client to let the
judge sentence him in regard to Count II was designed to facilitate ano
ther life sentence without counsel having to argue before the jury. See,
(CR.pg.146.) Because of the Amended Election for Punishment Motion filed
was filed on the date of conviction, further proves that counsel abandon
ed his client and sided with the State, against, his client. Petitioner
urges the Court that reversable error has appeared in the record and
such cause should be reversed and remanded.
27.
GROUND EIGHT:
PETITIONER'S COUNSEL OF RECORD FOR DIRECT APPEAL FRED JIMINEZ AND
STEPHEN W. BYRNE WAS INEFFECTIVE ASSISTANCE OF COUNSEL AND COMMITTED
FRUAD BEFORE THE COURT BY FILING FRIVOLOUS BRIEFS, FOR SUCH ACTIONS.[
WERE MOTIVATED BY POLITICAL ASPIRATIONS AND THE HIGH PROFILE NATURE
OF THE CASE. FORCING INDIGENT PETITIONER WHO IS NOT EDUCATED IN THE
LAW TO FILE PRO/SE BRIEF.
Prejudice, whether necessary or not, is established under any applicable
standard. Petitioner was charged with several crimes, the State assigned
counsel Fred Jiminez to represent him in his direct state review of
convictions- Fred Jiminez's wife was the District Attorney for Nueces
County, (Anna Jiminez) whose office prosecuted the Petitioner. Because
of the conflict of interest and the high profile nature of the case-.
said attorney filed a frivolous brief, knowing well that Petitioner's
case was filled with meritorious claims. Such insidivious intent by said
attorney because of the high profile nature of the cause, and the political
aspirations of Fred Jiminez and his wife Anna Jiminez, who is now imbat-
tled with the State over corruption charges while she was in office. If ~:.
said attorney would have brought his legal skills and knowledge to bear,
Petitoner would succeed in a successful review of his direct appeal.
Any attorney from the county who have any political aspirations along with
their spouses' would be faced this type of case hanging over their head.
The motivation factor in a pro-conviction enviroment, who appear to be
soft on crime, would be the object of political ostrcism. The Court in turn
appointed Stephen W= Byrne to represent Petitioner on direct appeal, said
counsel filed motion to withdraw citing ill-health in which' he claims
when the court appointed him to represent Petitioner- He still filed a
frivilous brief. Such actions by counselors forcing Petitioner who is
uneducated in the law and the speciality of appellate review to have no
choice but to a pro/se brief.. The court was not satisfied with the brief
that Fred Jiminez filed. Because the actions of these attorney's does
not subject the state's case to the "adversarial process. "The right to
effective assistance of counsel is the right of the accused to require
the prosecution's case to survive the crucible of meaningful adversarial
testing... [l]f the process losses its character as a confrontation be
tween adversaries, the constitutional guarantee is violated," Cronic,^.
466 U.S. at 656 -57, 104 S. Ct. at 2045. Petitioner bases his conclusions
that he did not recieve effective assistance of counsel on the clear
Sv'ta'ehce in the proceeding grounds postulated in grounds one -seven.
28.
GROUND EIGHT CONT:
this is the evil intent of attorneys to circuvent their client's basic
and fundamental rights as embodied in the Sixth Amend. Moreover, the
purpose of the effective assistance of counsel guarantee of the Sixth
Amend, is to insure that defendants are represented by counsel and not
have to face the lybrinth of the criminal justice system unawares.
Judicial scrutiny of counsel's performance, must be highly defferential.
The Court must determine in light of all circumstances,- the identified
acts and ommissions were outside of the wide range of professional
competent assistance.. In making that determination, the Court should keeo
in mind that counsel's function, as elaborated in prevailing professional
normsf is to make the adversarial testing process work in the particular
case-The Court relies on the legal profession's maintenance of standards
sufficient to justify the law's persumption that counsel will fufill the
role of in the adversary process that the Amendment envisions- The proper
measure of attorney performance remains simply reasonableness under pre
vailing professional norms- The constitutional requirement of substantial
equality and fair process can only be attained where counsel acts in the
role of an advocate on behalf of his client as opposed to amicus curiae.
The no-merit letter and the procedure it triggers do not reach that dig
nity. Counsel should, and can with honor and without conflict,- be of more
assistance to his client and to the court- His role as.advocate requires
that he support his client's, appeal to the best of his ability- Of course.,
if counsel finds case to be wholly frivolous,- after a conscientious exami
nation of it-, he should so advise the court and request permission to
withdraw, that request must be accompanied by a briefing referring to.
anything in the record that might arguably support the appeal- Stephen
W- Byrne did not provide this- Petitioner urges the Court that because
the record was fully developed Petitioner should be allowed to proceed with
ineffective assistance of counsel claims as. promulgated by the opinion
in Trevino v. Thaler,.569 U.S._(2013)(citation ommitted). Because of con
flicts of interest ((See Exhibit "D" appellate Brief), and attorneys
abandoning Petitioner there is a probability that the outcome of appeal
would have been different- After a full examination of all proceedings,
to decide whether the case is wholly frivolous. It so finds it may grant
grant counsel's motion to withdraw. Petitioner contends that there is no
way possible for the court to hear the case on 13 of August, then render
an opinion based on Fred Jiminez's brief on the 14 of August the very next
day, when Stephen W- Byrne was appointed by the court- Such opinion is
without any merit and does not reach to adjudication on the merits-
29.
GROUND EIGHT CONT:
It must, prior to to decision, afford the indigent the assistance of
counsel to argue the appeal. 13th Court of appeals denied oral argument-
See. Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396
(167). Also See,Douglas v- California, 372 U.S.3353, 83 S. Ct. 814, L.Ed.
2d 811 (1963). Because Petitioner has requested oral argument, and the
issues are complexed, Petitioner needs counsel appointed just for oral
argument of the merits on the issues- Furthermore, the Court in Strick
land draws a distinction between "actual or constructive denial of assis
tance of counsel altogether," and denial through "actual ineffectiveness."
The difference is between not having a lawyer at all (or having one that
the State has disabled insignificant way), and having one that is free to
provide assistance of counsel but fails to do so- because of the manichi-
ati.ons of the attorneys on direct appeal and the boilerplate opinion of
the court delivered on the following day after required submission? cou
pled with the State's brief that concedes Petitioner's claim, of double
jeopardy appeared from the record. Petitioner should have been afforded the
full play of ineffective assistance of counsel., taking said attorney's
on Vior Dire, Affidavits etc Petitioner, urges the Court to reverse said
cause and remand with instructions, as well as grant oral argument in
said cause.
GROUND NINE:
PETITIONER'S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OFF COUNSEL
FOR NOT RAISING AN AFFIRMATIVE DEFENSE OF TEMPORARY INSANITY,
AFTER ATTORNEY MADE QUESTION REGARDING PETITIONER'S MENTAL
STATE AT THE TIME OF THE OFFENSE.
Criminal Law Keynote-773;
If evidence from any source raises the issue of insanity, the trial court
must include an instruction on insanity defense in jury charge. V.A.C.C.P.
art.46.03; V-T-CA. , Penal Code. § 8.0.1 .-
Criminal Law Keynote-493:
When considered with the facts and circumstances concerning an accused
and the defense,, lay opinion testimony may be sufficient to raise the
defense of insanity. V-T-C-A..., Penal Code §8.01. During the trial oh the
merits, Petitioner's counsel raised the issue of Petitioner's mental state
that lead up to the commission of the offense. See, (RR.Vol.5,-pg .99,pg.100,
1-20):
25. I've never fouund myself in
pg.100;
30.
GROUND NINE CONT:
1. front of a jury telling them that my client is guilty of
2. murder, that's never happened. I guess it's because we
3- have a sort of unique set of circumstacnes.
4. Now the State has basically been telling
5. You- look, I want you to ignore everything that led up
6- to this ignore all the facts and circumstances don't
7. consider them because they're not relevant what the
8. State forgets that intent is an element- It's right
9. there in your charge. And when you're determining
10. whether somebody did something intentionally, you have
11. to look at why did it happen.
12. Now, why did this happen? Why would
13. someone who is a respected member of his community, a
14. hard-working, law-abiding, law-enforcing individual
15. commit this terrible act? Why would he murder his wife
16. and destroy his family? I'm not sure that can totally
17. be answered. Sometimes people snap.
18. something set them off and they do something totally out of character
19- for them, because, really there was obviously nothing
20. good that was going to come of out of this-
The above colloquy by Petitioner's counsel demonstrates that the counsel
was of the opinion "that his client snapped." Which is an off-color remark
of insanity. Such reasons promoting petitioner's guilt destroyed his
persumption of innocence and rendered the jury incapable of reaching a
fair and impartial decision- Furthermore counsel abandoned his client's
defense of insanity. The Sixth Amend, requirement of effective assistance
counsel reasonably likely to render reasonable effective assistance. It
is a violation of that.standard for defense counsel to deprive a criminal
defendant of a substantial deferese by his own incompetence. Defense coun
sel must perform at least as well as a lawyer with ordinary training and
skill in the criminal law and must conscientiously protect his client's
interest; undefelcted by conflicting considerations. Defense counsel must
investigate all apparently substantial defenses available to the defendant
and must assert them in a proper and timely manner.- It is a denial of the
right to effective assistance of counsel for an attorney to advise his
client errorneously on a clear point of law if that advice leads to a
deprivation of his client's right to a fair trial. Defense strategy and
tactics which lawyers of ordinary training and skill in the criminal law
would not consider competent deny a criminal defendant the effective
assistance of counsel, if other action would have better protected a
31,
GROUND NINE CONT:
a defendant and was reasonably foreseeable as such before trial. If,
however, action that appears erroneous from hindsight was taken for
reasons that would appear sound to a competent"criminal attorney, the
assistance of counsel has not been constitutionally defective. Harmless
error tests do not apply in regard to the deprivation of a procedural
right so fundamentally as the effective assistance of counsel. Petitioner's
attorney filed motion for psychological evaluation which was granted by
the court- See, CCR.pg.48)-. it appears from the record that defense counsel
was headed towards this defense, then abandoned this defense. Knowing that
his client was a former Border Patrol Agent, suffering from Post Traumatic
Stress Syndrome from this assigment, as well, as his job as an Alice Police
Officer, which greatly effected his physcological well being coupled with
the fact that Petitioner's wife was having multiple affairs with fellow
co-workers who were Police Officers- Also, amount of stress that police
offers experience on a day to day level, such amount of stress of officers'
on a national level is well documented, and the amount of domestic violence
involving police officers' and members of the armed forces is well docu
mented- Petitioner's attorney was derilict in his. duty for not preparing
the case for this type of defense. There was no psychological reports
tendered as defense exhibits from any of the law enforcement agencys
Petitioner was deployed with. So, if by moral insanity it be understood
only a disorder or perverted state of affections or moral powers of the
mind, it cannot be too soon discarded as affording any sheild from punish
ment for crime: if it can be truly said that one who indulges in violent
emotions, such as remorse, anger, shame, grief , and the like is afflicted
with homocidal insanity, it will be difficult, yes, impossible, to say
where sanity ends, and insanity begins...We say to you, as a result of
our reflections on this branch of the subject, that if the prisoner was
actuated by an irresistible inclination to kill, and was unable to control
or subjugate his intellect-•- he is entitled to an acquittal. (Mr. Justice
Paxson, 88 PA. 291, Jan. 20,1879). What then is that form of disease,
Denominted Homocidal Mania, which will excuse one for having committed a
murder? Cheif justice Gipson calls it that unseen ligament pressing on the
mind and drawing it to consequences which it under coercion which, while its
results are clearly percieved, is incapable of resistance-an invisible
inclination to kill.
Criminal Law Keynote-773(1) :
Tex. app.-Houston[14th Dist.]2001. If evidence from any source raises the
32-
GROUND NINE CONT:
issues of insanity, the trial court must include an instruction on
insanity defense in the jury charge. V.A-T.C.CP. art-.46.03; Penal Code §
8.01, Nutter v. State, 93 S.W. 3d 130.
Criminal Law Keynote-493:
When considering with facts and circumstances concerning an accused and
the offense, lay opinion testimony may be sufficient to raise the defense
of insanity. V-T-CA., Penal Code §8.01.
The affirmative defense of insanity applies if "at the time of the conduct
charged, the actor, as a result of severe mental diease or defect, did not
know his conduct was wrong." defense counsel made an Ex parte request for
Petitioner to be examined as to his state of mind, when such an evaluation
has been performed pursuant to court order, a written report of the exam
ination must be submitted to the court and copies of the report must be
furnished to the defense counsel and prosecuting attorney. V.T.C.C.P. art.
46.02 § 3(d)(Verono's Supp.1998). No report of this examination has been
included in the record, so we are unable to determine how any such report
may have influenced counsel's decision. However, since the record shows
that Petitioner's attorney did file a motion for evaluation, and did bring
up Petitioner's mental state, that he was considering this defense, and
abandoning such defense after telling jury that his client snapped, was
a clear comment on the mental state of the Petition. ;See, (RR.Vol .5,pg .100,
1-20)1 Petitioner concludes that this constitutes evidence from any source,
and raises the issue of insanity no matter how remote.
Criminal Law Keynote-641.13(7):
Ineffective assitance of counsel at punishment stage is not governed by
the the Strickland standard, but by the Duffy standard which requires that
the Court determine first, whether counsel was reasonaly likely to render
effective assistance, second, whether counsel reasonably rendered effec
tive assistance. U.S.C.A. Const. Amend- 6.
Criminal Law Keynote-641.13(7):
Duffy standard for evaluating a claim of ineffective assistance of counsel
at punishment stage of trial requires a showing of harm due to the ineffec
tive assistance. U.S.C.A. Const- Amend. 6.
It was error for trial counsel not request an instruction at punishment
of trial due to insanity,, but, furthermore, Petitoner's attorney and
State's attorney Ms. Dorsey put the court charge together, so it was
ineffective assistance of counsel that his attorney subjected his client
to such eregrious harm both great and apperant. Ex parte Duffy, 607 S.W.2d
507 (Tex. Crim.App-1980). This standard requires that the court evaluate
a complaint of ineffective assistance at the punishment stage 'determinig
33.
GROUND NINE CONT;
first, whether counsel was reasonably likely to render ineffective
assistance of counsel, and second, whether counsel reasonably rendered
ineffective assistance. Cardenas v. State, 960 S.W,2d 941, 947 (Tex.Crim.
App.-Texarkana 1998, no.pet). This standard also requires a showing of
harm due to the ineffective assistance. Stone v. State, 751 S.W-2d 579> ;582
(Tex.-App ..-Houston [1st. Dist] 1988,pet.ref'd). 742 S.W,2d atl6, Penal Code §
8.04. Petitioner's claim of ineffectiveness prove that counsel's representa
tion so undermined the proper functioning of the adversarial process that
the trial cannot be relied on having produced a just result." Petitioner
claim does not stand alone, the record is replete with the litanies of the
grave and fatal errors committed by counsel in this case. These errors
judged by the totality of the representation, denied him a fair trial.
Merely showing that they had some conceivable effect on the proceedings is
inadequate. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067-68; McFarland v.
State, 928 S.W.2d 482 (Tex .Crim. App. 1996)... In this cause the errors had a
profound effect on the proceedings. Petitonsr urges the court to reverse "
said case and remand with instructions, reversible errors appearing in the
record.
GROUND TEN:
PROSECUTORIAL MISCONDUCT: ASSISTANT DISTRICT ATTORNEY COMMITTED
PROSECUTORIAL MISCONDUCT WHEN QUESTIONING OFFICER ON THE STAND ABOUT
THE CHARGE THAT RELIES ON A LEGAL CONCLUSION THAT THE JURY DECIDES
FOR ITSELF.
The following questions was promulgated by Ms. Dorsey: (RR.Vol- 4,pg.l31,
8-21):
8= and if he shots and kills somebody during
9. the course of that--
10. Mr. Woerner: your Honor, we're going to r:-?
11- object to any legal conclusions being drawn here.
12. Ms- Dorsey: I'am asking this officer what
13. he would charge and arrest someone for.
14. The witness: Capital Offense.
15. The Court: hold on, hold on, I am going
16. sustain the objection because it in your hypothetical it
17. goes to t,he issue that this jury needs to determine.
18. Mr. Woerner: we'd ask the jury to
19. instructed to disregard.
20. the Court: The jury will disregard the
21. officer's last answer to the question.
GROUND TEN CONT:
This was a direct comment on the exact nature of the charge the jury
determines for itself, the prejudice that incurred from the prosecu
tor's soliciting such question was designed to undermine the legal
conclusion from fact to ultimate fact, that this could have been
rendered an non-capital case. The prosecutor subplanted in the minds
of the jury that this is a capital case, and such injury infringes on
on Petitioner's due Process safeguards as afforded by the 14th and
6th Amends. U.S. Const. Wherefore such responses elicited by the pro
secutor was designed to impermissibly shift the burden of proof, and
such cure by the court did not cure the substantial harm but, instead
rendered the trial process unfair
and unreliable resulting in the jury being tainted. Petitoner contends
that his conviction should be reversed because of prosecutorial miscon
duct. A criminal defendant bears a substantial burden when attemping to
show prosecutorial improprieties constitutes reversible error. United
States, v. Diaz-Carreon, 915 F.2d 951, 956 (5th Cir.1990). Improper
prosecutorial comments require reversal only if the comments substanti
ally affected the defendants right to a fair trial. In evaluating any
effect on the right to a fair trial, consider three factors: the magni
tude of the prejudicial effect of the remarks, the efficacy of any
cautionary instruction, and the strength of the evidence of defendant's
guilt. The misconduct complained of the remarks, the efficacy of any
cautionary instruction, and the strength of the evidence of defendant's
guilt. The misconduct complained of must be examined in the context of
the trial in which it occured - See, United States v. Willis, 6 F.3d 257,
264 (5th Cir.1993). After careful review of the conduct complained of,
it is apperrant because of the divergent theories, the question by the
prosecutor was designed to draw out a legal conclusion from the officer
that the jury was deeide^andevaluatev.for themselves. Such overwhelming
prosecutorial misconduct was not cured by instruction from the court. And •:
such impermissbly shifted the burden of proof to the Petitioner. Taken
the trial as a whole, after, defense attorney already planted in the jury's
mind that his client was guilty, which took away Petitioner's persumption
of innocence. Petitioner concludes that the prosecutor's question coupled
with all the litanies of the trial attorney cast ?"serious doubt" upon
the correctness of the jury verdict and the fairness of-the trial.
Petitioner urges the court, that reversible error has appeared in the
record and such cause should be reversed and .remanded.
3/.
GROUND ELEVEN:
TRIAL JUDGE ABUSED HER DISCRETION BY NOT ISSUING INSTRUCTIONS TO
CURE AFTER STATE'S WITNESS TESTIFIED TO PREJUDICIAL EXTRANEOUS EVENT
THAT WAS RELATED TO THE INSTANTOOFFENSE:
During the testimony of Diana Rodriguez the victims mother, Ms. Rodriguez
testified: See, (RR.Vol.3,pg.212,16-24:
16. Q. Okay. Did Leslie ask you to leave?
17. A. Leslie said she was going to stay, and that's
18. when the police officer escorted me to my car because I
19. started getting angry and I started telling him—
20. because Joey was saying that Leslie was cheating. I
21. said, okay, now, why didn't you tell me all the things
22. that you did to her? why didn't you tell me what your
23. dad did to Amber? I started getting angry and that's
24. the police--
25. Mr. Woerner: your Honor, I am going to
(RR.Vol.3,pg213>;
1. make an objection at this point- May. we approach?
2. The Court: Yes.
3. (Bench conference.)
The court had ruled on a motion in limine to not allow any of the State's
witnesses' to infer or mention the alleged allegations concrning petition
er's step-daughter and his father who shares the same name as Petitioner.
By State's witness violating that order and said trial judge Angelica
Hernandez not issuing instruction for cure, said violation further tainted
the minds of the jury who were already tainted by trial attorney's actions
and ommissions on persumption of innocence. Such blurting out by the State's
witness was calculated by said witness, after already being instructed by
by State's attorney not to mention of the above stated allegations. Said
blurting out by the State's witness was calculated by said witness, after
alrady being instructed not to mention it in the presence of the 'jury.
Such prejudice outweighed the probative vaule, insomuch, that nonruling
by the court allowed the Petitioner to be further prejudiced by said vi
olation. Motion in limine is to prevent admission of, irrelevent, inad
missible or prejudicial evidence into trial, but it is not a final ruling
on the evidence. See, Valencia v. State, 891 S.W',4'2dd652, Betitionn for
Discretionary Review granted, Vacated, 946 S.W.2d 81, on remand 966 S.W.-
2d 188 PDR ref'd. Said prejudice from inference to Petitioner's father
3*.
GROUND ELEVEN CONT:
was calculated to inflame the minds of the jury as to child abuse
allegations of a sexual nature.
Pretrial Procedure Keynote-3:
The purpose of a motion in limine is to prevent opposing parties from
asking prejudicial questions and introducing prejudicial evidence in
front of the jury. Ball v, Rao, 48 S.W.3d 322, rehaering overruled,
and review denied. The imposition of sanctions for violation of orders
in limine is left to thesound discretion of the court, and the court
of appeals will not reverse such sanctions absent a clear abuse of
discretion. Ball v. Rao, 48 S.W.3d 322. Repeated violations of limine
orders may result in mistrials or reversals. Ball, supra., Said witness
for the State, acted in flagrant bad faithraTfd callous disregard for
trial court's order. U.S.C.A. Const. Amend.Ll4th, Lassiter v. Shavor,
824 S.W.2d 667. It was imperative that the trial court poll the jury
as to what they had gleaned from such statement by witness. Because of
thelack of questioning and no cure by the court, Petitioner believes1
that the court abused its discretion for not issuing curative instructions
to disregard. Because the record is silent on thismatter, it is assumed
by the Petitioner that the jury was further tainted by such violation,
coupled with the litany of failures by his attorneys' to not request
curative instructions, not have a running objection, and requesting a
mistrial. Petitioner's counsel only appeared as a mere friend of the
court, and aquicence to the State's violation, as well as abuse of dis
cretion by the trial court. Taken as a whole the compounded errors of the
case, Petitioner urges the Court to'reverse and remand said conviction,
for prejudice has appeared in the record and Petitioner did not recieve
a fair and impartial trial.
CONCLUSION
Petitioner would urge the Court that he falls under the narrow ruling
of Trevino v. Thaler, wherein the record was full developed and the
errors of his attorneys were plain and apperrant. When Attorneys' operated
in such an insidious fashion; Hear no evil, see no evil,-and speak no evil!
Said trial was overwhelmed by medai and public pressure > whi^ch resulted in
the impossibility to seat a fair and impartial jury- Petitioner was forced
to wear leg shackles during the entire trial, with no demonstrative rea
sons by the' trial judge- Counsel, rendered ineffective assistance on
numerous occassins, destroying Petitioner's persumption of innocence.
31.
CONCLUSION CONT:
The Court is well settled that when a jury is seated and the atmosphere
is set in motion to insure that Petitioner would not recieve a fair
trial, he is entitled to at least a hearing on change of venue, on his
attorney's motion, or in leiu from the trial court- Because there was
neither, the court should have taken upon her self such change of venue-
Whan the trial was dominated by the media and public pressure. Further
more, double jeopardy was committed when Petitioner was prosecute for
more than one burglarious entry, wherein there was only one unlawful
entry. Said prosecution commenced upon an unsigned affidavit and infor
mation, wherein said attorney failed to take notice of. Wherein the
State was without jurisdiction to proceed upon. Petitioner'sjcouhsell.i _-.-:;
frivolous brief, -was intentional because of nepotism, and high profile
nature of the case, Such actions by trial attorney's to insure that
Peititoner was convicted, and appeallate attorneys' to circumvent any
meaningful appellate review and force Petitioner to prosecute his own
appeal without any formal legal training, was calculated to injure the
rights of Petitioner. Such actions are denounced in both the State and
Federal Constitution, because petitioner could not communicate with his
attorney during course of trial, attorney put on a defense that was
inconsistant with 'his original strategy, than abandoned the temporary
insanity defense, thereby abandoning his client and went on to become
a friend of the court, and infact was in reality giving testimony for
the State when he testified that his client was guilty, and that guilt
was inferred thorough Count II*-Also, abandoned his client during punish
ment stage of the trial. Because of the litanies of errors from the bench,
as well as the attorneys in this case, the PDR should be granted, and
the trial judge as well as the attornys should be taken on vior dire,
for their acts and ommissions. Petitioner, urges the Court to appoint
attorney for oral argument in said case. Also, reverse and remand the
case with instructions for ..acquittal in regard to the double jeopardy
claims.
PRAYER
Petitioner prays that the Court grant him all requested herein, and
any and all relief that the Court deems just and necessary that
justice will allow.
39'i *
CERTIFICATE OF SERVICE
Petitoner certifies under penalty of perjury that a true and correct
copy of this Petition for Discretionary Review was delivered by hand
to the Nueces County District Attorney, the Hon. Mark Shukra 4/ /15.
At the Nueces County Courthouse, 901 Leopard St. Corpus Christi, Texas
78401. Also +o /VHvGeA/«-ie*( PoBot Mor, A«%lv %„?$ 7V9/J.
Signed this 8/13/15
Respectfully submitted,
By:
Pro/t
Jose Gonzales III #1832029
James V. Allred Unit
2101 FM 369 N.
Iowa Park, Texas 76367
3$.
APPENDIX
NUECES COUNTY COURTHOUSE
CHIEF JUSTICE
901 LEOPARD, 10TH FLOOR
ROGELIO VALDEZ
CORPUS CHRISTI, TEXAS 78401
JUSTICES
361-888-0416 (TEL)
NELDA V.RODRIGUEZ
361-888-0794 (FAX)
DORI CONTRERAS GARZA
HIDALGO COUNTY
GINA M. BENAVIDES
ADMINISTRATION BLDG.
GREGORY T. PERKES
NORA L. LONGORIA Court of appeals? 100E. CANO, 5TH FLOOR
EDINBURG, TEXAS 78539
CLERK
956-318-2405 (TEL)
DORIAN E. RAMIREZ Wrteenty JBtatrtct of Cexaa 956-318-2403 (FAX)
August 14, 2014
Hon. Adolfo Aguilo Jr. Hon. Fred Jimenez
Assistant District Attorney Attorney At Law
Nueces County Courthouse 509 Lawrence, Suite 301
SOi Leopard - Room 206 Corpus Christi, TX 78401
Corpus Christi, TX 78401 * DELIVERED VIA E-MAIL *
* DELIVERED VIA E-MAIL *
Mr. Jose Gonzales III
Hon. Mark Skurka TDCJ #1832029
District Attorney James V. Allred Unit
901 Leopard Street, Room 205 2101 FM 369 North
Corpus Christi, TX 78401 Iowa Park, TX 76367
* DELIVERED VIA E-MAIL *
Re: Cause No. 13-13-00.011 -CR
Tr.Ct.No. 11-CR-4141-D
Style: JOSE GONZALES III v. THE STATE OF TEXAS
Enclosed please find the opinion and judgment issued by the Court on this date.
Very truly yours,
Dorian E. Ramirez, Clerk
DER:dsr
Enc.
cc: State Prosecuting Attorney (DELIVERED VIA E-MAIL)
105th District Court (DELIVERED VIA E-MAIL)
Hon. Patsy Perez, District Clerk (DELIVERED VIA E-MAIL)
Hon. J. Rolando Olvera Jr., Presiding Judge, 5th Administrative Judicial Region,
. (DELIVERED VIA E-MAIL) ...
THE THIRTEENTH COURT OF APPEALS
13-13-00011-CR
JOSE GONZALES III
v.
THE STATE OF TEXAS
On Appeal from the
105th District Court of Nueces County, Texas
Trial Cause No. 11-CR-4141-D
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court
orders the judgment of the trial court AFFIRMED.
We further order this decision certified below for observance.
August 14, 2014
NUMBER 13-13-00011-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE GONZALES III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court of
Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza and Benavides
Memorandum Opinion by Justice Garza
A jury found appellant Jose Gonzales III guilty of capital murder, a capital felony
offense, see Tex. Penal Code Ann. § 19.03(a)(2), (b) (West, Westlaw through 2013 3d
C.S.), and burglary of a habitation to commit a felony (aggravated assault), a first-degree
felony offense. See id. § 30.02(a)(3), (d)(1) (West, Westlaw through 2013 3d C.S.). The
triarcourt assessed appellant's punishment for the capital murder offense at life without
parole, see id. § 12.31(a)(2) (West, Westlaw through 2013 3d C.S.), and assessed
punishment for the burglary of a habitation offense at life imprisonment, with the
sentences ordered to run concurrently. Appellant's court-appointed counsel has filed an
Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm.
I. Anders Brief
Pursuant to Anders v. California, appellant's court-appointed appellate counsel
has filed a brief and a motion to withdraw with this Court, stating that his review of the
record yielded no grounds of error upon which an appeal can be predicated. See id.
Counsel's brief meets the requirements of Anders as it presents a professional evaluation
demonstrating why there are no arguable grounds to advance on appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) ("In Texas, an Anders brief
need not specifically advance 'arguable' points of error if counsel finds none, but it must
provide record references to the facts and procedural history and set out pertinent legal
authorities.") (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.—Corpus
Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at *3 (Tex. Crim. App.
June 25, 2014), appellant's counsel carefully discussed why, under controlling authority,
there is no reversible error in the trial court's judgment. Counsel has informed this Court,
in writing, that counsel has: (1) notified appellant that counsel has filed an Anders brief
and a motion to withdraw; (2) provided the appellant with copies of both pleadings; and
(3) informed the appellant of appellant's rights to file a pro se response,1 and review the
1 The Texas Court of Criminal Appeals has held that "the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the
court those issues which the indigent appellant believes the court should consider in deciding whether the
2
record preparatory to filing that response. See Anders, 386 U.S. at 744; Kelly, 2014 WL
2865901, at *3, Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at
409 n.23.
The record shows that appellant was provided a copy of the record on October 21,
2013. After this Court granted several motions for extension of time in which to file his
pro se response, appellant filed his pro se response on May 23, 2014.
II. Independent Review
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). When an Anders brief and a subsequent pro se response are filed, a court
of appeals reviews the entire record, and: (1) determines that the appeal is wholly
frivolous and issues an opinion explaining that it finds no reversible error; or (2)
determines that there are arguable grounds for appeal and remands the case to the trial
court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826-
27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not
review those grounds until after new counsel has briefed those issues on appeal. Id.
We have reviewed the entire record, counsel's brief, and appellant's pro se
response, and we have found nothing that would arguably support an appeal. See id. at
827-28 ("Due to the nature of Anders briefs, by indicating in the opinion that it considered
the issues raised in the briefs and reviewed the record for reversible error but found none,
the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.");
case presents any meritorious issues." Inre Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008)
(quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App—Waco 1997, no pet.)).
3
Stafford, 813 S.W.2d at 509. There is no reversible error in the record. Accordingly, the
judgment of the trial court is affirmed.
III. Motion to Withdraw
In accordance with Anders, appellant's attorney has asked this Court for
permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also
In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80
(Tex. App.—Dallas 1995, no pet.) ("[I]f an attorney believes the appeal is frivolous, he
must withdraw from representing the appellant. To withdraw from representation, the
appointed attorney must file a motion to withdraw accompanied by a brief showing the
appellate court that the appeal is frivolous.") (citations omitted)). We grant counsel's
motion to withdraw. Within five days of the date of this Court's opinion, counsel is ordered
to send a copy of this opinion and this Court's judgment to appellant and to advise him of
his right to file a petition for discretionary review.2 See Tex. R. App. P. 48.4; see also In
re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim.
App. 2006).
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of August, 2014.
2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case
by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary
review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed
within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion
for en banc reconsideration that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for
discretionary review must be filed with the clerk of the Court of Criminal Appeals, see Tex. R. App. P. 68.3,
and should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See Tex. R. App. P.
68.4.
4
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