Jones, Steven Lynn ( 2015 )

PD-0639-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/29/2015 11:29:12 AM
Accepted 6/29/2015 4:51:32 PM
No. PD-0639-15 ABEL ACOSTA
CLERK
(Court of Appeals No. 05-14-00243-CR)
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
STEVEN LYNN JONES,
Petitioner,
v.
THE STATE OF TEXAS
PETITIONER'S PETITION FOR DISCRETIONARY REVIEW
On discretionary review from the Court of Appeals
Fifth District of Texas at Dallas
MELVYN CARSON BRUDER
516 Turley Law Center
6440 N. Central Expressway
Dallas, Texas 75206
June 29, 2015 214.987.3500
214.987.3518 Telecopier
Counsel for Petitioner
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
The trial court judge in this case was Mark Rusch.
The parties to the judgment in this case are Steven Lynn Jones and the State of
Texas.
The names and addresses of all trial and appellate counsel are:
Matt Rolston
Assistant Criminal District Attorney
Collin County Courthouse
2100 Bloomdale Road
McKinney, TX 75071
Trial Counsel for the State of Texas
Joe Greco
207 E. Lamar Street
McKinney, TX 75070
Trial Counsel for Mr. Jones
Justin Johnson
Assistant Criminal District Attorney
Collin County Courthouse
2100 Bloomdale Road
McKinney, TX 75071
Appellate Counsel for the State of Texas
Melvyn Carson Bruder
516 Turley Law Center
6440 N. Central Expressway
Dallas, TX 75206
Appellate Counsel for Mr. Jones
-i-
TABLE OF CONTENTS
Identity of Judge, Parties, and Counsel ................................................................. I
Table of Contents ................................................................................................. ii
Index of Authorities ............................................................................................ iv
Statement Regarding Oral Argument ................................................................... 2
Statement of the Case ........................................................................................... 2
Statement of the Procedural History of the Case ................................................. 2
Ground for Review ............................................................................................... 3
The court of appeals erred by concluding that Mr. Jones was not
deprived of the effective assistance of counsel because his appellate
counsel failed to timely file a Rule 20.2 motion and affidavit requesting
that Mr. Jones be furnished with an appellate record without charge.
Argument .............................................................................................................. 3
Relevant Facts ....................................................................................................... 3
How the Court of Appeals Decided The Grounds for Review .................. 3
Argument .................................................................................................... 5
Conclusion ................................................................................................ 12
Prayer for Relief .................................................................................................. 13
Certificate of Service ........................................................................................... 14
Certificate of Compliance ................................................................................... 14
Appendix A - Opinion of the Court of Appeals in Jones v. State ..................... 15
Appendix B - Order Denying Motion for Rehearing in Jones v. State ............ 16
-ii-
INDEX OF AUTHORITIES
Cases:
Andrews v. State
159 S.W.3d 98 (Tex.Crim.App.2005) ............................................ 11
Bone v. State
77 S.W.3d 828, 833 (Tex.Crim.App.2002) ................................. 4, 9
Evitts v. Lucey
469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985) ............ passim
Guillory v. State
557 S.W.2d 118 (Tex.Crim.App.1977) ......................................... 10
Jones v. State
No. 05-14-00243-CR (Tex.App. – Dallas Mar. 13, 2011) ..... passim
Oldham v. State
977 S.W.2d 354 (Tex.Crim.App.1998) ......................................... 11
Ex parte Perez
479 S.W.2d 283 (Tex.Crim.App.1972) ................................... 10, 11
Prudhomme v. State
28 S.W.3d 114 (Tex.App. – Texarkana 2000) ........................... 5, 11
Reese v. State
481 S.W.2d 8411 (Tex.Crim.App.1972) ......................................... 6
Strickland v. Washington
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1987) .......... passim
Ward v. State
740 S.W.2d 794 (Tex.Crim.App.1987) .................................. passim
Constitutions:
U.S.CONST.amend VI ........................................................................... 9, 10
U.S.CONST.amend XIV ...................................................................... passim
-iii-
Rules:
TEX.R.APP.P. 4.1 ........................................................................................ 3
TEX.R.APP.P. 20.2 ............................................................................. passim
TEX.R.APP.P. 25.2 ....................................................................................... 5
TEX.R.APP.P. 33 ......................................................................................... 6
TEX.R.APP.P. 34 .......................................................................................... 6
-iv-
No. PD-0639-15
(Court of Appeals No. 05-14-00243-CR)
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
STEVEN LYNN JONES,
Petitioner,
v.
THE STATE OF TEXAS
PETITIONER'S PETITION FOR DISCRETIONARY REVIEW
On discretionary review from the Court of Appeals
Fifth District of Texas at Dallas
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
STEVEN LYNN JONES, Petitioner, petitions this Court to grant discretionary
review to review the judgment of the Court of Appeals for the Fifth District of Texas
affirming his conviction for arson because the court of appeals has decided an
-1-
important question of law in a way that conflict with applicable decisions of this
Court and of the Supreme Court of the United States. See TEX.R.APP.P. 66.3©.
In particular, the court of appeals erred in concluding that Mr. Jones was not
deprived of the effective assistance of counsel because he failed to timely file a
motion and affidavit requesting that he be furnished with an appellate record without
charge, as required by Rule 20.2.1
STATEMENT REGARDING ORAL ARGUMENT
Mr. Jones believes that oral argument will be helpful to the Court in resolving
the grounds for review because of the nature of the issues presented in the ground for
review.
STATEMENT OF THE CASE
This is an appeal from a conviction for arson.2 However, the ground for review
in this case involve issues related to whether Mr. Jones’s appellate counsel was
ineffective because he failed to timely file a motion and affidavit under Rule 20.2 that
Mr. Jones be provided with a record on appeal without charge to him.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
The court of appeals affirmed Mr. Jones’s conviction on 13 March 2015. Jones
v. State, No. 05-14-00243-CR, Tex.App. – Dallas, 13 March 2011, unpublished.3 A
1
TEX.R.APP.P. 20.2.
2
Clerk’s Record (CR) 29 (Judgment).
3
A copy of that opinion is appended hereto as Appendix A.
-2-
timely-filed motion for rehearing4 was denied on 29 April 2015.5
GROUND FOR REVIEW
The court of appeals erred by concluding that Mr. Jones was not
deprived of the effective assistance of counsel because his appellate
counsel failed to timely file a Rule 20.2 motion and affidavit requesting
that Mr. Jones be furnished with an appellate record without charge.
ARGUMENT
RELEVANT FACTS
Mr. Jones was sentenced on 11 February 2014.6 He filed a notice of appeal on
27 February 2014.7 A Request for Appellate Record and Affidavit in Support of
Request for Appellate Record were filed on 14 April 2014.8 Following a hearing on
that request held on 28 April 2014, the trial court ruled that Mr. Jones was not
indigent9 and concluded in his Findings of Fact and Conclusions of Law that “[t]he
affidavit was filed after the time period permitted by TEX.R.APP.PROC. 20.2.”10
HOW THE COURT OF APPEALS DECIDED GROUND FOR REVIEW NO. 1
Mr. Jones argued to the court of appeals that the failure of his appellate counsel
4
The Petitioner filed his motion for rehearing on 13 April 2015, which was the Monday after
12 April 2013, the day on which the motion was due to be filed. See TEX.R.APP.P. 4.1.
5
A copy of the order denying the motion for rehearing is appended to this petition as Appendix
B.
6
CR 29 (Judgment).
7
CR 47.
8
CR 53, 55.
9
Reporter’s Record (RR) 19.
10
Supplemental Clerk’s Record 4.
-3-
to timely request an appellate record without charge to him constituted ineffective
assistance of counsel, citing Evitts v. Lucey11 and Ward v. State.12 Appellant’s Brief
at 8-9, Jones v. State, supra. He further argued that based on the standard of review
set out in Evitts and in Ward, all of the facts necessary to a resolution of the
ineffective-assistance-of-counsel issue were before the court and that the issue was
capable of being resolved without the necessity of developing additional facts. Id.
at 10.
The court of appeals correctly concluded that Mr. Jones’s request to have the
appellate record furnished to him without charge was filed late.13 The court addressed
Mr. Jones’s argument that his counsel was ineffective because of his failure to timely
file a Rule 20.2 motion and affidavit as follows:
Jones also argues that we should reverse the trial court’s decision
because the failure to timely file the rule 20.2 motion and affidavit was
due to the ineffective assistance of counsel. Under normal
circumstances, however, the record on direct appeal will not be
sufficient to demonstrate that counsel’s representation was so deficient
and so lacking in tactical or strategic decision-making as to overcome
the presumption that counsel’s conduct was reasonable and professional.
Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). The present
case is no different. Jones’s counsel did not specifically discuss the
deadline for requesting a free reporter’s record, but his testimony at the
April 2014 hearing suggests that the March 21, 2014 bond hearing was
the first time he had any actual notice Jones might be indigent. It is also
possible that counsel may have believed, prior to the bond hearing, that
since Jones was represented by retained counsel, he would not be able
11
469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985).
12
740 S.W.2d 794 (Tex.Crim.App.1987).
13
Jones v. State, supra, slip op. 5 (“the record supports the trial court’s conclusion that Jones’s
request for a free appellate record was untimely, and the trial court could have denied Jones’s motion
based on his failure to exercise due diligence in asserting his indigence”).
-4-
to meet the evidentiary showing required to establish that he was
indigent. See TEX.CODE CRIM.PROC.ANN. art. 1.051(b) (defining
“indigent” person as one “not financially able to employ counsel”);
Eastley v. State, 248 S.W.3d 272, 279-80 (Tex.App – Houston [1st
Dist.] 2007, pet.ref’d). Without a more complete record, we simply
cannot conclude counsel provided ineffective assistance. See
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005).
Jones, supra, 9-10.
Mr. Jones filed a Motion for Rehearing in which he reurged that the rule set out
in Evitts and Ward applied in this case, discussed that rule and compared it with the
rule in Strickland,14 and noted that the court of appeals wholly ignored his argument
based on Evitts and Ward in its original opinion. Appellant’s Motion for Rehearing
3-7, Jones v. State, supra. The motion was overruled without opinion or comment.
ARGUMENT
It is beyond peradventure that when a state elects to provide appellate review
following a conviction for crime, the Due Process Clause of the Fourteenth
Amendment commands that an accused be provided with an appellate record in order
that his appeal be adequate and effective, and that he have the effective assistance of
counsel. Evitts, supra, 469 U.S. at 394-97; Ward, supra, 740 S.W.2d at 796, 799-
801. Texas provides for appellate review of criminal convictions.15 Therefore, a
person who appeals his conviction is is entitled to the effective assistance of counsel,
whether that counsel is appointed or retained. Evitts, supra; Ward, supra;
Prudhomme v. State, 28 S.W.3d 114, 119 (Tex.App. – Texarkana 2000, no pet.).
14
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1987).
15
TEX.R.APP.P. 25.2.
-5-
In Texas, appellate review is based exclusively on an appellate record, which
consists of a clerk’s record and a reporter’s record.16 Without a reporter’s record no
meaningful appellate review of a criminal conviction is possible; the absence of a
reporter’s record renders an appeal a “meaningless ritual.” Ward, supra, 740 S.W.2d
at 800; and see Reese v. State, 481 S.W.2d 841, 842 (Tex.Crim.App.1972). Thus, the
failure of an appellate attorney to take the necessary steps required by law to obtain
a reporter’s record for the appellant’s use on appeal deprives the appellant of a
meaningful appellate review of his conviction and amounts to ineffective assistance
of counsel. In Evitts and in Ward the courts concluded that the failures of the
appellants’ counsel “to comply with a simple procedural rule” that operated to deny
the appellants an opportunity at a meaningful time and in a meaningful manner to
present their appeals amounted to ineffective assistance of counsel. See Ward, supra,
740 S.W.2d at 800. The same scenario occurred in this case; however, the court of
appeals did not reach the same result as in Evitts and in Ward.
In Evitts the accused’s retained “counsel failed to file a statement of appeal
when he filed his brief and record on appeal.” Because of that failure the Kentucky
appellate court dismissed Lucey’s appeal. For seven years thereafter Lucey pursued
his effort to obtain a meaningful appellate review of his conviction, eventually
challenging the dismissal of his appeal “on the ground that the dismissal [of his
appeal] deprived him of his right to effective assistance of counsel on appeal
guaranteed by the Fourteenth Amendment.” Evitts, supra, 469 U.S. at 391. The issue
16
Id. 33 and 34.
-6-
decided in Evitts was “whether the state court’s dismissal of the appeal, despite the
ineffective assistance of [Lucey’s] counsel on appeal, violates the Due Process Clause
of the Fourteenth Amendment.” Id. at 391. That issue was framed based on the legal
conclusion that Lucey “indeed received ineffective assistance of counsel on appeal”
because ”his counsel’s failure to obey a simple court rule” had the drastic
consequence of depriving Lucey of meaningful appellate review of his conviction.
Id. at 392.
In Ward the accused’s appointed counsel, who represented him at his probation
revocation proceeding, timely filed a notice of appeal but “fail[ed] to designate timely
the record and therefore fail[ed] to have a statement of facts included in the appellate
record.” Ward, supra, 740 S.W.2d at 795. This Court held that the attorney who
filed the notice of appeal was obligated to continue his representation of Evans,
unless and until he was relieved, but because he filed neither a statement of facts or
a brief he “performed no duties necessary to an adequate appeal,” id. at 799, and
concluded that he rendered ineffective assistance. Id. at 800. The Ward Court
explained the holding in Evitts, and its application to Ward as follows:
In Evitts v. Lucey [citation omitted] the Supreme Court held that there
is a constitutional guarantee of effective assistance of counsel on appeal
in every criminal prosecution, whether counsel is appointed or retained.
In Evitts, a defendant’s retained counsel filed notice of appeal, brief and
record. Counsel failed to submit a statement of facts required by the
Kentucky Rules of Appellate Procedure. The Kentucky Court of
Appeals dismissed the defendant’s appeal for failure to file a statement
of facts. The Supreme Court ultimately affirmed the granting of a writ
of habeas corpus on the ground that the appellant had been denied
effective assistance of counsel The Supreme Court held:
In bringing an appeal as of right form his conviction, a criminal
-7-
defendant is attempting to demonstrate that the conviction, and
the consequent loss of liberty, is unlawful. To prosecute the
appeal, a criminal defendant must face an adversary proceeding
that like a trial is governed by intricate rules that to a layperson
would be hopelessly forbidding. An unrepresented appellant like
an unrepresented defendant at trial is unable to protect the vital
interests at stake. To be sure, respondent did have nominal
representation when he brought this appeal. But nominal
representation on an appeal as of right like nominal representation
at trial does not suffice to render the proceedings constitutionally
adequate; a party whose counsel is unable to provide effective
representation is in no better position than one who has no
counsel at all. Id., 105 S.Ct. at 836.
The Supreme Court held that counsel’s failure to file the statement of
facts constituted a lack of effective assistance of counsel on appeal in
violation of the Due Process Clause of the Fourteenth Amendment. The
Court noted, “counsel’s failure was particularly egregious in that it
essentially waived respondent’s opportunity to make a case on the
merits; it is difficult to distinguish respondent’s situation from that of
someone who had no counsel at all.” Id. at 835, fn.6.
In this regard the appellant’s situation and that in Evitts are factually
similar. Furthermore, the failure of counsel in each case to comply with
a simple procedural rule operated to deny appellant an opportunity at a
meaningful time and in a meaningful manner to present his appeal.
Armstrong v. Manzo, 380 U.S.545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d
62, 66 (1965). In Texas, the absence of a statement of facts severely
limits appellate review. Hale v. State, 509 S.W.2d 637 (Tex.Cr.App.
1974); Bush v. State, 370 S.W.2d 875 (Tex.Cr.App.1963).
Consequently, the absence of a statement of facts renders appellant’s
appeal a “meaningless ritual.” Evitts, 469 U.S. at 394, 105 S.Ct. At 834,
83 L. Ed. 2d at 828.
Because Ward “as a practical matter received no assistance as to the substantive
issues that may be presented on appeal,” this Court concluded that he had been denied
his right to effective assistance of counsel on appeal in violation of the Fourteenth
Amendment. Ward, supra, at 800.
The conclusion of the court of appeals that the record in this case is not
-8-
“sufficient to demonstrate that counsel’s representation was so deficient and so
lacking in tactical or strategic decision-making as to overcome the presumption that
counsel’s conduct was reasonable and professional” and requires the development of
additional facts in order to assess whether Mr. Jones’s was provided ineffective
assistance, id. at 9-10, ignores the holdings in Evitts and Ward, which specifically
address the adequacy of assistance of appellate counsel, as well as the holdings in
cases construing Strickland that require review of the merits of ineffective assistance
claims where the facts necessary to resolution of those claims are contained in the
record.17
APPLICABILITY OF STRICKLAND
In Strickland the Supreme Court held that the Sixth Amendment right to
counsel includes the right to effective assistance of counsel, in the context of trial
proceedings, Strickland, supra, 466 U.S. at 688-90, and established standards for
judging the effectiveness of counsel’s performance. Id. at 690-95. These standards
require an accused to prove, by a preponderance of the evidence, that his counsel’s
representation fell below the objective standard of professional norms, and that his
deficient performance prejudiced his defense. Bone v. State, supra, 77 S.W.3d at 833.
And, appellate review of defense counsel’s representation is highly deferential and
presumes that counsel’s actions fell within the wide range of reasonable and
professional assistance. Id. Thus, “[u]nder normal circumstances, the record on
direct appeal will not be sufficient to show that counsel’s representation was so
17
The court of appeals ignored all of these cases, despite being provided with them by Mr.
Jones in his brief and in his Motion for Rehearing.
-9-
deficient and so lacking in tactical or strategic decisionmaking as to overcome the
presumption that counsel’s conduct was reasonable and professional.” Id.
Several exceptions apply to the foregoing conclusion, all of which have some
application in this case. First, “[i]n certain Sixth Amendment contexts, prejudice is
presumed” - “[a]ctual or constructive denial of the assistance of counsel is legally
presumed to result in prejudice.” Strickland, supra, 466 U.S. at 692. Because Mr.
Jones’s counsel wholly failed to assure Mr. Jones’s right to a reporter’s record on
appeal by not following a simple procedural rule, that failure constituted an actual or
constructive denial of the assistance of counsel. Evitts; Ward. This is particularly
appropriate in light of Strickland’s command that ineffective assistance claims be
assessed in terms of “whether, despite the strong presumption of reliability, the result
of the particular proceeding is unreliable because of a breakdown in the adversarial
process that our system counts on to produce just results.” Strickland, supra, 466
U.S. at 696. The inaction upon which the ineffectiveness of Mr. Jones’s counsel is
based deprived Mr. Jones of appellate review of the merits of his conviction. See
Guillory v. State, 557 S.W.2d 118 (Tex.Crim.App.1977). As stated in Evitts and in
Ward, it is difficult to imagine a harsher, more unjust consequence than not having
the merits of a conviction reviewed on appeal because of the failure to an appellate
counsel to take a simple procedural step. See Ex parte Perez, 479 S.W.2d 283
(Tex.Crim.App.1972) (awarding an accused a new trial because he was deprived of
an appeal and no reporter’s record was available upon which an out-of-time appeal
could have been based).
-10-
Second, where the existing appellate record establishes ineffective assistance
of counsel, there is no need for the development of other facts in a post-conviction
proceeding and the issue should therefore be addressed on direct appeal. Andrews v.
State, 159 S.W.3d 98, 103 (Tex.Crim.App.2005); Oldham v. State, 977 S.W.2d 354,
360 (Tex.Crim.App.1998); Prudhomme v. State, supra. In this case the record is
clear: Mr. Jones’s’ appellate counsel failed to take the necessary steps to assure that
Mr. Jones had the benefit of a reporter’s record in connection with his appeal. As
stated in Evitts, Ward, and Perez, this is the type of failure in which prejudice is
presumed because there has been an “actual or constructive denial of the assistance
of counsel altogether.” Strickland, supra, 466 U.S. at 692.
The court of appeals indulgence in speculation that it is possible Jones’s
counsel first became aware Jones was indigent after the time for filing the Rule 20.2
motion or that because Jones was represented by retained counsel he would not be
able to meet the evidentiary showing required to establish indigency, Jones, supra,
slip op. 9, ignores the obvious. The strategic choices of counsel are not evidence of
ineffective assistance if those choices are based on professional judgment.
Strickland, supra, 466 U.S. at 681. In this case there was no possible reasonable
strategy that would support the failure of Mr. Jones’s counsel to take the necessary
steps to assure that Mr. Jones would have the benefit of a reporter’s record for use in
connection with his appeal. Thus, counsel’s reasons, if any, for failing to timely file
a Rule 20.2 motion are unnecessary to resolve the claim of ineffective assistance of
counsel. Andrews, supra.
-11-
CONCLUSION
When evaluated under Evitts and Ward, the failure of Mr. Jones’s appellate
counsel to timely file a Rule 20.2 motion and affidavit was ineffective assistance as
a matter of law. “Counsel’s failure was particularly egregious in that it essentially
waived respondent’s opportunity to make a case on the merits; it is difficult to
distinguish respondent’s situation from that of someone who had no counsel at all.”
Evitts, 469 U.S. at 835 n. 6, quoted in Ward, supra, 740 S.W.2d at 799. “[T]he failure
of counsel in each case to comply with a simple procedural rule operated to deny
appellant an opportunity at a meaningful time and in a meaningful manner to present
his appeal.” Ward, supra, 740 S.W.2d at 800.
And, when evaluated under Strickland, the failure of Mr. Jones’s counsel on
appeal to file the Rule 20.2 motion and affidavit constitutes ineffective assistance of
counsel for the very same reasons as set forth in Evitts and Ward because there is no
legitimate, reasonable basis upon which it can be said that the failure of Mr. Jones’s
appellate counsel to timely file a Rule 20.2 motion and affidavit was a reasonable
strategic choice, given that the failure deprived Mr. Jones of appellate review of his
conviction. The failure to file a Rule 20.2 motion in this case is one of those
situations in which there is an actual or constructive denial of counsel and prejudice
is legally presumed. Strickland, supra, 466 U.S. at 692.
Discretionary review should be granted so that the effectiveness vel non of Mr.
Jones’s counsel on appeal in failing to timely file a Rule 20.2 motion and affidavit
can be reviewed under the standards set forth in Evitts and Ward, or under the
-12-
Strickland standard, all of which were ignored by the court of appeals in reaching its
decision.
PRAYER FOR RELIEF
Mr. Jones prays that this Court grant discretionary review to review the
decision of the court of appeals in this case because the court of appeals failed to
apply the appropriate standard in resolving whether Mr. Jones’s counsel was
ineffective for failing to timely file a Rule 20.2 motion and affidavit, thereby
depriving Mr. Jones of appellate review of the merits of his conviction.
Respectfully submitted,
/s/ Melvyn Carson Bruder
MELVYN CARSON BRUDER
TSBN 03241000
6440 North Central Expressway
516 Turley Law Center
Dallas, Texas 75206
214.987.3500
214.987.3518 FAX
melvyn@melvynbruderlaw.com
Counsel for the Petitioner
-13-
CERTIFICATE OF SERVICE
I certify that on 29 June 2015 a true and correct copy of the foregoing
Petitioner’s Petition for Discretionary Review was served upon counsel for the State
of Texas in this case and upon the State Prosecuting Attorney via electronic filing and
via first class United States mail, postage prepaid, in Dallas, Texas.
/s/ Melvyn Carson Bruder
MELVYN CARSON BRUDER
CERTIFICATE OF COMPLIANCE
I certify that this petition contains 4016 words based on the word count of the
Word Perfect X5 program used to prepare the petition.
/s/ Melvyn Carson Bruder
MELVYN CARSON BRUDER
-14-
APPENDIX A
OPINION OF THE COURT OF APPEALS IN JONES V. STATE
-15-
-16-
-17-
-18-
-19-
-20-
-21-
-22-
-23-
-24-
-25-
-26-
APPENDIX B
ORDER DENYING MOTION FOR REHEARING IN JONES V. STATE
-27-
-28-
-29-