Lawrence James Jr. v. State

ACCEPTED
13-14-00380-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
9/3/2015 3:00:49 PM
Dorian E. Ramirez
CLERK
LAWRENCE JAMES, JR., §
Appellant § FILED IN
13th COURT OF APPEALS
§ CORPUS CHRISTI/EDINBURG, TEXAS
§ 9/3/2015 3:00:49 PM
§ Cause No. 13-14-00380-CR
DORIAN E. RAMIREZ
§ Clerk
v.
§
§
§
§
THE STATE OF TEXAS, §
Appellee §
**************************************************************
IN THE COURT OF APPEALS
13 DISTRICT – CORPUS CHRISTI
TH
BRIEF OF APPELLANT
ON APPEAL IN CAUSE NO. 12-14114
252Nd DISTRICT COURT
HON. LARRY GIST, JUDGE PRESIDING1
KEVIN SEKALY CRIBBS
ATTORNEY AT LAW
7705 Calder Avenue,
Beaumont, Texas 77706
TELEPHONE: (409) 899-2051
FACSIMILE: (409)866-9282
sekalyfirm@yahoo.com
TEXAS BAR NO. 00792826
1
This case was originally indicted in 2012 when Hon. Layne Walker presided over the 252nd
District Court. Subsequently Hon. Lindsey Scott was appointed to preside over that court. Having
worked on this case in the District Attorney’s office prior to her appointment to the Bench, she
disqualified herself for any court proceedings (R.R.26) on this case and it was thereafter referred
to Hon. Larry Gist for trial.
IDENTIFICATION OF THE PARTIES
Pursuant to TX R APP Rule 38.1(a), a complete list of the names of all
interested parties is provided below so the members of this Honorable Court may at
once determine whether they are disqualified to serve or should recuse themselves
from participating in the decision of the case.
Appellant: LAWRENCE JAMES, JR.., No. 1940637,
Eastham Unit, 2665 Prison Rd. #1, Lovelady, TX 75851
Defense Attorney on the Trial: Nathan Reynolds, Jr,
3500 Memorial Blvd.
Port Arthur, Texas 77640
Defense Attorney on Appeal (Anders): Terrence Leon Holmes
455 Milam
Beaumont, Texas 77705
Substituted Attorney on Appeal: Kevin Sekaly Cribbs
7705 Calder Avenue
Beaumont, TX 77706
Prosecutors on the Trial: Eric Houghton
Jefferson County District Attorney’s Ofc.
Jefferson County Courthouse
1085 Pearl
Beaumont, Texas 77701
Criminal District Attorney Cory Crenshaw, serving by special
Appointment after Tom Maness’ resig-
nation (DA at time of indictment)
Jefferson County Courthouse
1085 Pearl
Beaumont, Texas 77701
Judge Presiding:
Hon. Larry Gist (See footnote 1, above)
Jefferson County Courthouse
Beaumont, Texas 77701
TABLE OF CONTENTS
PAGE
STATEMENT OF THE CASE 8
STATEMENT OF FACTS 9
SUMMARY OF ISSUES PRESENTED 10
ISSUES PRESENTED 11
ARGUABLE POINT OF ERROR NO. ONE: 14
APPELLANT CLAIMS THAT HE WAS DENIED DUE
PROCESS OF LAW BY BEING DENIED EFFECTIVE
ASSISTANCE OF COUNSEL.
ARGUABLE POINT OF ERROR NO. TWO: 21
APPELLANT CLAIMS THAT HE WAS DENIED DUE
PROCESS OF LAW BY BEING DENIED AN OPEN AND
PUBLIC TRIAL.
ARGUABLE POINT OF ERROR NO. THREE: 21
APPELLANT CLAIMS THAT HE WAS DENIED DUE
PROCESS OF LAW BECAUSE HE WAS NOT GIVEN NOTICE
OF THE CHANGES OF TRIAL JUDGE AND PROSECUTOR.
ARGUABLE POINT OF ERROR NO. FOUR: 22
APPELLANT CLAIMS THAT HE WAS DENIED DUE
PROCESS OF LAW BECAUSE BASED UPON THE
ARGUMENTS OF THE PROSECUTOR AT THE SENTENCING
HEARING AND BY THE TRIAL COURT BY RELYING ON
THE PRESENTENCE REPORT AND ITS CONTENTS
RELATIVE TO EXTRANEOUS OFFENSES AND VICTIM
STATEMENTS.
ARGUABLE POINT OF ERROR NO. FIVE: 26
James v. State 13-14-00380-CR Page 1
APPELLANT CLAIMS THAT THE TRIAL COURT ERRED IN
ACCEPTING APPELLANT’S GUILTY PLEA WITHOUT
PROVIDING THE NECESSARY ADMONISHMENTS AND
THEREFORE THE PLEA WAS INVOLUNTARY2
ARGUABLE POINT OF ERROR NO. SIX: 30
THE APPELLANT CLAIMS HIS DUE PROCESS RIGHTS
WERE VIOLATED WHEN HE WAS NOT PROVIDED A
COMPLETE RECORD/STATEMENT OF FACTS FROM HIS
COURT PROCEDINGS.
ARGUABLE POINT OF ERROR NO. SEVEN: 33
THE NUNC PRO TUNC ADMONISHMENTS AND UNAGREED
PLEA AGREEMENT DOES NOT PROPERLY CORRECT THE
TRIAL COURT’S CLERICAL ERROR [DATE OF
DOCUMENTS] AND SHOULD BE WITHDRAWN AND
REPLACED WITH AN ORDER NUNC PRO TUNC.
ARGUABLE POINT OF ERROR NO. EIGHT: 35
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT
GRANTING APPELLANT’S MOTION TO DISMISS COURT-
APPOINTED COUNSEL PRIOR TO TRIAL.
ARGUABLE POINT OF ERROR NO. NINE: 38
THE APPELLANT’S CASE SHOULD BE REMANDED AND
RETURNED TO HIS PREJUDGMENT STATUS IN ORDER
THAT HE MAY BE ALLOWED TO FILE A MOTION FOR
NEW TRIAL.
SUMMARY OF THE ARGUMENTS 12
ARGUMENT 14
2
Counsel notes that Appellant makes claims of trial counsel’s ineffective assistance that would
support the court setting aside his guilty plea, however, as stated hereinbelow, that portion of his
claim ineffective assistance of counsel as it relates to an involuntary plea should be developed in
the writ of habeas corpus.
James v. State 13-14-00380-CR Page 2
PRAYER 44
CERTIFICATE OF SERVICE 45
4
CERTIFICATE OF COMPLIANCE 45
James v. State 13-14-00380-CR Page 3
AUTHORITIES
Cases Page
Archie v. State, 221 S.W.3d 695 (Tex.Crim.App.2007) 31
Bell v. State, 155 S.W.3d 635 (Tex. App., Texarkana 2005, no pet.) 25, 26
Busselman v State, 713 S.W.2d 711 (Tex.App. – Houston, 1st Dist. 1986) 39
Chase v. State, 706 S.W.2d 717 (Tex.App.—Corpus Christi 1986, no pet.) 36
Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001) 26
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004) 24
Dees v. State, 722 S.W.2d 209 (Tex. App.-Corpus Christi 1986, pet. ref.) 34
DeLuna v. State, 387 S.W.2d 678 (Tex. Crim. App. 1965) 34
Enlow v State, 46 S.W.3d 340 (Tex. App., Texarkana 2001, no pet.) 22
Edwards v. State, 652 S.W.2d 519 (Tex.App.—Houston
[1st Dist.] 1983, pet. ref'd) 17
Ex parte Torres, 943 S.W.2d 469 (Tex.Crim.App.1997) 18, 20
Fryer v. State, 68 S.W.3d 628 (Tex. Crim. App. 2002) 23
Garcia v State, 930 S.W.2d 621 (Tex.App.-Tyler, 1996) 17
Gomez v. State, 921 S.W.2d 329 (Tex.App.-Corpus Christi 1996, no pet.) 28
Gonzalez v. State, 994 S.W.2d 369 (Tex.App.—Waco 1999, no pet.) 18
Goodspeed v. State, 187 S.W.3d 390 (Tex.Crim.App.2005) 15
Heidelberg v. State, 144 S.W.3d 535 (Tex.Crim.App.2004) 31
Hill v. State, 686 S.W.2d 184 (Tex.Crim.App.1985) 36
Hobbs v. State, 298 S.W.3d 193 (Tex.Crim.App.2009) 38
Holden v. State, 201 S.W.3d 761 (Tex.Crim.App.2006) 38
Homan v. Hughes, 708 S.W.2d 449 (Tex. Crim. App. 1986) 34
In the Matter of J.S.S., a Juvenile, 20 S.W.3d 837 (Tex.App.-El Paso, 2000) 17
Jackson v. State, 877 S.W.2d 768 (Tex.Crim.App.1994) 14
Jaynes v. State, 216 S.W.3d 839 (Tex.App.-Corpus Christi 2006, no pet.) 15
Jones v. State, 942 S.W.2d 1 (Tex.Crim.App.1997) 31
Landers v. State, 550 S.W.2d 272 (Tex. Crim. App. 1977) 17
Maes v State, 275 S.W.3d 68 (Tex.App.-Waco 2008) 36, 37
Martinez v. State, 640 S.W.2d 317 (Tex.App.—San Antonio 1982, pet. ref'd) 36
Martinez v. State, 981 S.W.2d 195 (Tex.Crim.App.1998) 27
Munoz v. State, 24 S.W.3d 427 (Tex.App.-Corpus Christi 2000, no pet.) 15
James v. State 13-14-00380-CR Page 4
Orellana v State, 2015 WL 4381219 38, 39
Perez v State, 824 S.W.2d 565 (Tex.Crim.App. 1992, en banc) 30, 31
Randle v. State, 847 S.W.2d 576 (Tex.Crim.App.1993) 19
Robinson v State, 16 S.W.3d 808 (Tex.Crim.App. 2000) 18, 21
Robinson v State, 240 S.W.3d 919 40
Shaw v. State, 539 S.W.2d 887 (Tex. Crim. App. 1976) 34
Smith v. State, 227 S.W.3d 753 (Tex. Crim. App. 2007) 23
Smith v. State, 286 S.W.3d 333 (Tex.Crim.App.2009) 38
State v. Gonzalez, 855 S.W.2d 692 (Tex.Crim.App.1993) 38
Stew. v. State, 675 S.W.2d 524, 525 (Tex.App.—Houston [14th Dist.] 1983, pet.
ref' 17
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984) 14, 15
Stringer v. State, 309 S.W.3d 42 (Tex. Crim. App. 2010) 24, 25
Taguma v State, 47 S.W.3d 663 (Corpus Christi – 2001) 32
Trimmer v. State, 651 S.W.2d 904, 906 (Tex.App.—Houston [1st Dist.] 1983, pet.
ref'd) 17
United States v. Fields, 483 F.3d 313 (5th Cir. 2007) 25
Valle v State, 109 S.W.3d 500 (Tex.Crim.App. 2003) 31
Webb v. State, 533 S.W.2d 780 (Tex.Crim.App.1976) 36
Will. v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949) 24
Wilson v. State, 108 S.W.3d 328 (Tex. App., Fort Worth 2003, no pet.) 23, 24
Statutes
Article 1, Section 10 of the Texas Constitution 17
Tex. Code Crim. Proc Art. 26.13 e 27
Tex. Code Crim. Proc. Art. 37.07(a)(1) 23, 25
Tex. Code Crim. Proc. Art. 37.07 § 3(a) 23
Tex. Code Crim. Proc., Art. 37.7 § 3(a)(1) 23
Tex. Code Crim. Proc. Art. 42.12, § 9 25, 26
Tex. Code Crim. Proc. Art. 42.12 § 9(a) 23
Tex. Code Crim. Proc. Art. 42.12, section 9(d), (e) 26
Tex. Code Crim. Proc. Ann. Art. 26.13 (a) (1) (Vernon 1989) 28
Tex. Code Crim. Proc. Ann. Art. 26.13 (c) (Vernon 1989) 28
Tex. Code Crim. Proc. Ann. Art. 26.13(d) (Vernon 1989) 28
Tex. Code Crim. Proc. Ann. Art. 11.07 20
Rules
Civ. Proc., Rule 316 33
James v. State 13-14-00380-CR Page 5
R. App. Proc. 13.1 31
R. App. Proc., Rule 21.8 43
Tex. R. Evid. 103(a)(1) 31
R.App.Proc. 33.1(a) 31
R. App. Proc. 21 18
R. App. Proc. 33.1 20, 31
Texas Rules of Evidence 404 and 405 22
James v. State 13-14-00380-CR Page 6
LAWRENCE JAMES, JR., §
Appellant §
§
§
§ Cause No. 13-14-00380-CR
v. §
§
§
§
§
THE STATE OF TEXAS, §
Appellee §
**************************************************************
IN THE COURT OF APPEALS
13 DISTRICT – CORPUS CHRISTI
TH
BRIEF OF APPELLANT
ON APPEAL IN CAUSE NO. 12-14114
252ND DISTRICT COURT
HON. LARRY GIST, JUDGE PRESIDING
**************************************************************
TO THE HONORABLE COURT OF APPEALS:
COMES NOW LAWRENCE JAMES, JR., Defendant in cause number 12-
14114 in the 252ND District Court, Hon. Larry Gist, Judge Presiding, and Appellant
before the Court of Appeals, and respectfully submits this brief to the Court for the
purpose of appealing his conviction of Murder.
James v. State 13-14-00380-CR Page 7
STATEMENT OF THE CASE
The indictment alleges that the offense of Murder occurred on or about March
27, 2012. (Clerk’s Record, 5-6). On April 29, 2014, trial on the merits began with
Voir Dire (2Sup.RR, 5) and after Voir Dire the Appellant pled guilty to the
indictment to the Court. (2RR, 5). The Court found Appellant guilty and reset the
case for punishment after the preparation of a presentence investigation report. (2RR,
6-7). The Appellant’s plea was non-negotiated or un-agreed. (2RR, 5 [l.12]). A
sentencing hearing was on June 2, 2014 (3RR); Appellant’s trial counsel moved to
withdraw the Appellant’s guilty plea, which the trial court denied. (3RR 6, [l.15-
17]). After reviewing the presentence report and hearing the arguments by the State
and by the Appellant, the trial court sentenced the Appellant to life in the Department
of Corrections. (3RR, 11 [l.14]). Appellate counsel was appointed to represent
Appellant on appeal (CR 7), who thereafter filed his Anders brief. Appellant filed
his pro se brief and the Court of Appeals issued its Order Abating Appeal, filed on
May 5, 2015. Substitute appellate counsel herein has been appointed to brief any
arguable appellate issues in this case.
James v. State 13-14-00380-CR Page 8
STATEMENT OF THE FACTS
The statement of Facts and the Statement of the Case are so intertwined that
Sub. Appellate Counsel will not restate what was set forth hereinabove; however,
there are additional facts to present about the case-in-chief.
Appellant was accused of causing the death of his Aunt by cutting and
stabbing her with a sharp edged instrument. Appellant was subsequently arrested.
(CR9). Facts regarding the alleged offense are in the record through the presentence
report; no objections were made as to its accuracy. (CR46-51). Appellant had
previously executed a judicial confession, waiver of his rights to a jury trial and
waiver of confidentiality of a presentence investigation report, acknowledging that
it would be publicly filed in the papers in his case. (CR29-30). Appellant’s
admonishments were computer-generated and file-marked for the pre-trial date,
April 28, 2015, although they were actually executed on April 29, 2015. (CR29-31;
2RR, 1, 5). Additionally, during the pre-trial hearing, Appellant raised issues with
his attorney (1Sup.RR., in its entirety). The Appellant requested that the Court
remove trial counsel based upon Appellant’s complaints and the Court, after hearing
the responses of trial counsel and the State, denied Appellant’s request. (1Sup.RR,
4-6). Appellant later raised his concern with his counsel in his presentence report
interview (CR 47) and at the sentencing hearing on June 2, 2014. (3RR, 4-5).
James v. State 13-14-00380-CR Page 9
After sentencing, the trial court advised Appellant that he has a right to appeal.
(3RR, 11 [l. 14-21]). Trial counsel thereafter filed notice of appeal on Appellant’s
behalf, on June 11, 2014 (CR 70, 72), and appellate counsel was appointed. On June
12, 2014, trial counsel was withdrawn by Order of the trial Court. (CR 80).
On June 10, 2014, Appellant filed a pro se Motion for New Trial. (CR 61-69).
The Reporters Record was filed on July 21, 2014; the Clerk’s Record was filed
on July 30, 2014.
A Nunc Pro Tunc “Written Plea Admonishments” had been signed and filed
by the Court on April 29, 2014, however, it was not included in the Clerk’s Record
filed on July 30, 2014. The Clerk issued and filed a supplemental record including
the Nunc Pro Tunc documents on July 30, 2014.
SUMMARY OF THE ISSUES PRESENTED
The case presents numerous issues, both through the record and through
Appellant’s trial court comments. Although the Appellate Court found that appellate
counsel had properly performed in his preparation of Appellant’s Anders Brief
(Court of Appeals Order Abating Appeal, 5-15-15, p. 3), it also finds that there are
arguable points regarding Appellant’s voluntariness of his plea, a violation of his
due process rights, ineffective assistance of counsel, and, possibly among others,
James v. State 13-14-00380-CR Page 10
prosecutorial misconduct. The Court of Appeals has also clearly stated that to date
it makes no finding as to whether any of Appellant’s arguable points are meritorious.
Substitute appellate counsel attempts herein to consolidate those issues she
believes should be handled together and briefly address any points that she believes
are without merit. It is for this reason that the standard format for writing an
Appellant’s Brief may differ from this brief; however, substitute appellate counsel
will attempt to address Appellant’s concerns in a concise manner.
ISSUE PRESENTED
ARGUABLE POINT OF ERROR NO. ONE:
APPELLANT CLAIMS THAT HE WAS DENIED DUE PROCESS OF LAW
BY BEING DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
ARGUABLE POINT OF ERROR NO. TWO:
APPELLANT CLAIMS THAT HE WAS DENIED DUE PROCESS OF LAW
BY BEING DENIED AN OPEN AND PUBLIC TRIAL.
ARGUABLE POINT OF ERROR NO. THREE:
APPELLANT CLAIMS THAT HE WAS DENIED DUE PROCESS OF LAW
BECAUSE HE WAS NOT GIVEN NOTICE OF THE CHANGES OF TRIAL
JUDGE AND PROSECUTOR.
ARGUABLE POINT OF ERROR NO. FOUR:
APPELLANT CLAIMS THAT HE WAS DENIED DUE PROCESS OF LAW
BECAUSE BASED UPON THE ARGUMENTS OF THE PROSECUTOR AT
THE SENTENCING HEARING AND BY THE TRIAL COURT BY
James v. State 13-14-00380-CR Page 11
RELYING ON THE PRESENTENCE REPORT AND ITS CONTENTS
RELATIVE TO EXTRANEOUS OFFENSES AND VICTIM STATEMENTS.
ARGUABLE POINT OF ERROR NO. FIVE:
APPELLANT CLAIMS THAT THE TRIAL COURT ERRED IN
ACCEPTING APPELLANT’S GUILTY PLEA WITHOUT PROVIDING
THE NECESSARY ADMONISHMENTS AND THEREFORE THE PLEA
WAS INVOLUNTARY
ARGUABLE POINT OF ERROR NO. SIX:
THE APPELLANT CLAIMS HIS DUE PROCESS RIGHTS WERE
VIOLATED WHEN HE WAS NOT PROVIDED A COMPLETE
RECORD/STATEMENT OF FACTS FROM HIS COURT PROCEDINGS.
ARGUABLE POINT OF ERROR NO. SEVEN:
THE NUNC PRO TUNC ADMONISHMENTS AND UNAGREED PLEA
AGREEMENT DOES NOT PROPERLY CORRECT THE TRIAL COURT’S
CLERICAL ERROR [DATE OF DOCUMENTS] AND SHOULD BE
WITHDRAWN AND REPLACED WITH AN ORDER NUNC PRO TUNC.
ARGUABLE POINT OF ERROR NO. EIGHT:
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT GRANTING
APPELLANT’S MOTION TO DISMISS COURT-APPOINTED COUNSEL
PRIOR TO TRIAL.
ARGUABLE POINT OF ERROR NO. NINE:
THE APPELLANT’S CASE SHOULD BE REMANDED AND RETURNED
TO HIS PREJUDGMENT STATUS IN ORDER THAT HE MAY BE
ALLOWED TO FILE A MOTION FOR NEW TRIAL.
SUMMARY OF THE ARGUMENTS
In an attempt to address arguable issues of Appellant, post – Anders brief, and
also identify for the Court and Appellant why or why not the issues have merit,
James v. State 13-14-00380-CR Page 12
substitute appellate counsel presents the foregoing nine arguable points of error.
However, for the various reasons hereinbelow, counsel does not believe that, while
arguable, the first six suggested errors have justiciable merit which would garner
remand or reversal for Appellant.
The seventh error should be considered by the appellate court in order to
correct the record below.
The eight error complains that the trial court did not consider all of
Appellant’s complaints before denying his Motion to Dismiss Counsel.
The ninth error complains of a somewhat circular “comedy of errors” that
renders unfair results to Appellant. In short, counsel believes that the judge’s
disqualification and the final assignment to a trial court, the withdrawal of trial
counsel and assignment of appellant counsel, the lack of information to either
counsel of record and Appellant regarding the pro se motion for new trial, and the
lack of notice to any court that a new trial motion had been filed pro se coupled
with time constraints on filing new trial motions and the actual dates of the filed
clerk’s and reporter’s records, created a congested conglomeration of confusion and
the just remedy is to return Appellant to pre-judgment status and allow him or
counsel to properly file and present Appellant’s motion for new trial.
James v. State 13-14-00380-CR Page 13
ARGUABLE POINT OF ERROR NO. ONE:
APPELLANT CLAIMS THAT HE WAS DENIED DUE PROCESS OF LAW
BY BEING DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
Appellant, in his pro se brief, sets out complaints against trial counsel;
however, there is not sufficient evidence in the record to support those claims and
substitute appellate counsel is of the opinion that in order to fully litigate each of
those claims, Appellant should pursue any ineffective assistance of counsel claim he
contends through an Tex.R.Proc. 11.07 writ of habeas corpus application.
There is no question that Appellant had a right to effective assistance of
counsel at trial. The right to effective assistance of counsel is a right of constitutional
dimensions being a right granted by the Sixth Amendment. Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Jackson v. State
877 S.W.2d 768, 771 (Tex.Crim.App.1994). In order to prevail, an appellant
alleging a claim of ineffective assistance of counsel must show:
(1) That counsel's performance fell below the level considered to
constitute reasonably effective professional assistance, with the strong
presumption being that counsel's performance was reasonably
effective; and
(2) But for counsel's errors, there is a reasonable probability the
outcome of appellant's trial would have been different.
Strickland, 104 S. Ct. at 2066, 2068.
James v. State 13-14-00380-CR Page 14
As recently as last year the Court of Appeals in Corpus Christi – Edinburg, in
a Memorandum Opinion, restated its standard for review in an unpublished case
regarding ineffective assistance of counsel:
We apply the two-pronged Strickland analysis to determine whether
counsel's representation was so deficient that it violated a defendant's
constitutional right to effective assistance of counsel. Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005); Jaynes v. State, 216
S.W.3d 839, 851 (Tex.App.-Corpus Christi 2006, no pet.); see
Strickland v. Washington, 466 U.S. 668, 684, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). An appellant claiming a Strickland violation must
establish that: (1) “his attorney's representation fell below an objective
standard of reasonableness, and (2) there is a reasonable probability that,
but for his attorney's errors, the result of the proceeding would have been
different.” Jaynes, 216 S.W.3d at 851; see Strickland, 466 U.S. at 687.
We afford great deference to trial counsel's ability—“an appellant must
overcome the strong presumption that counsel's conduct fell within the
wide range of reasonable professional assistance.” Jaynes, 216 S.W.3d
at 851. The appellant must prove both elements of the Strickland test
by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434
(Tex.App.-Corpus Christi 2000, no pet.). “A Strickland claim must be
‘firmly founded in the record’ and ‘the record must affirmatively
demonstrate’ the meritorious nature of the claim.” Goodspeed, 187
S.W.3d at 39.
Acosta v State, 2014 WL 440152 (Tex.App.- Corpus Christi – Edinberg 2014) [not
published –although referring to citable opinions].
The Appellant raises many issues, some on the record and some in his pro se
brief, for instance:
A. At Pre-Trial Hearing:
James v. State 13-14-00380-CR Page 15
1. Conflict of Interest (1Sup.RR, 4),
2. Failure in duty to adequately represent Appellant (1Sup.RR, 4),
3. Failure to communicate (1Sup.RR, 4),
4. Failure to file Pre-trial Motions (1Sup.RR, 5),
5. Failure to advise Appellant as to “what he is facing to make a fair judgment)
(1Sup.RR, 5),
6. Failure to provide/review evidence and video with Appellant (1Sup.RR, 5),
7. Failure to be truthful with Appellant (1Sup.RR, 5);
B. At presentence investigation interview (CR 47):
1. Appellant was coerced into pleading guilty,
2. Absent trial counsel’s [deficient] representation, Appellant would be
vindicated,
3. Failure to communicate,
4. Failure to investigate,
5. Failure to file Appellant’s pro se motions;
C. At the Sentencing Hearing:
1. Failure to explain Appellant his constitutional rights (3RR, 4, 5),
2. Failure to properly represent (3RR, 5),
3. Failure to file anything in Appellant’s defense (3RR, 5); and,
D. In Appellant’s pro se brief:
1. Trial Counsel was not with Appellant at presentence interview,
2. Trial Counsel did not file specified pretrial motions,
3. Trial Counsel did not make an independent investigation of the facts,
4. Trial Counsel withheld information, misrepresented material facts, exerted
pressure and overbearing his will inducing Appellant’s guilty plea,
5. Failure to give Appellant notice that trial court and prosecutor were
reassigned,
6. Failure to make objections at argument regarding State’s language referring
to Appellant as Habitual Criminal,
7. Failure to object to extraneous offense and victim statement language in
presentence report, and,
8. Failure to provide truthful advice regarding withdrawal of Appellant’s plea.
James v. State 13-14-00380-CR Page 16
Although the Court of Appeals is probably aware that this list of complaints has
allegations that, under the law, would not be “meritorious,”3 there is a possibility
that some of the complaints would be meritorious. Unfortunately, in the complaints
that were before the Court at the pre-trial hearing, the trial court allowed trial counsel
and the State to respond and was apparently satisfied with the responses such that
the trial court denied Appellant’s request to dismiss trial counsel. (1Sup.RR, 6).
3
For example:
2.B.5 – “Appellant is not entitled to hybrid representation, Article 1, Section 10 of the Texas
Constitution states that an accused in a criminal proceeding has the right to be heard by himself or
herself or counsel, or both. Although the language of this provision would appear to grant an
accused the right to represent himself or herself along with counsel, it has been held that this
provision of the constitution does not expand or alter the right to counsel or in any way give the
accused a right to such hybrid representation. Rather, Article 1, Section 10 affords the accused the
right to testify at his or her trial and to be represented by counsel. Thus, there is no constitutional
right in Texas to representation partially pro se and partially by counsel [Landers v. State, 550
S.W.2d 272, 275–280 (Tex. Crim. App. 1977)].” – Restated from Texas Criminal Practice Guide,
Vol. 1, Lexis Nexis;
2.D.1. – Appellant indicates that trial counsel was not present at the presentence interview when
incriminating statements that prejudiced him. (Appellant’s pro se brief, P8, issue IV); however,
there are no incriminating statements by Appellant during the interview, rather comments of
vindication. (CR 47);
2.D.7. – Failure to object to extraneous offense material in presentence investigation report.
However, there is no requirement that a defendant be warned of his right to refrain from self-
incrimination prior to submitting to a routine, authorized presentence investigation. Edwards v.
State, 652 S.W.2d 519, 519–20 (Tex.App.—Houston [1st Dist.] 1983, pet. ref'd); Trimmer v. State,
651 S.W.2d 904, 906 (Tex.App.—Houston [1st Dist.] 1983, pet. ref'd); Stewart v. State, 675
S.W.2d 524, 525 (Tex.App.—Houston [14th Dist.] 1983, pet. ref'd). A trial court may use a PSI
that contains information supplied by the defendant, even though the interviewing probation
officer did not warn the defendant of his privilege against self-incrimination prior to the interview.
Edwards, 652 S.W.2d at 519. Garcia v State, 930 S.W.2d 621 (Tex.App.-Tyler, 1996) (rejected
for reasons not applicable in this case in In the Matter of J.S.S., a Juvenile, 20 S.W.3d 837
(Tex.App.-El Paso, 2000).
James v. State 13-14-00380-CR Page 17
In 2000, we were given guidance from the Court of Criminal Appeals
regarding ineffective assistance of counsel claims – both in the Opinion and in the
Dissent. In Robinson v State, 16 S.W.3d 808 (Tex.Crim.App. 2000), the Court was
discussing an Appellant’s right to litigate ineffective assistance of counsel without
having first raised it on appeal. Although that is not the case here, because Appellant
did state his complaints to the trial Court, the Court of Criminal Appeals explained:
In reaching its conclusion that appellant's ineffectiveness claim was
barred by the general rule of procedural default, the appellate court
relied on its previous decision in Gonzalez v. State, 994 S.W.2d 369
(Tex.App.—Waco 1999, no pet.). In that case, the Waco court
determined that the “clear language” of Rule 33.1(a) prevented a
similarly situated appellant from raising an ineffective assistance of
counsel claim for the first time on appeal. See id. at 373. The Gonzalez
court noted the general axiom that, “ ‘[i]n most instances, the record on
direct appeal is inadequate to develop an ineffective assistance claim.’
” Id. (quoting Ex parte Torres, 943 S.W.2d 469, 475
(Tex.Crim.App.1997)). It then concluded that the proper mechanism
to develop the record in the ineffective assistance of counsel context
was to present the argument to the trial court in a motion for new trial
under Texas Rules of Appellate Procedure 21. Id. at 373–74. The
Gonzalez court held that by failing to present the claim to the trial court
in such a manner, the appellant was procedurally barred from raising
the issue on appeal. Id. at 374. Relying on Gonzalez, the Court of
Appeals overruled appellant's point of error. Robinson, slip op. at 5.
But, the Court also said:
Rule 33.1(a) generally requires that a complaint be presented to the trial
court “by a timely request, objection, or motion” as a prerequisite to
presenting the complaint for appellate review. However, this Court has
suggested in dicta that an ineffective assistance of counsel claim will
James v. State 13-14-00380-CR Page 18
generally not be foreclosed because of an appellant's inaction at trial.
See Randle v. State, 847 S.W.2d 576, 580 (Tex.Crim.App.1993). We
have expressed two separate rationales that support an exception to the
general rule of procedural default in the ineffective assistance of
counsel context. First, we have noted the many practical difficulties
with requiring an appellant to claim ineffective assistance at the time of
trial or immediately post-trial. For example, in Randle, we rejected the
Court of Appeals' suggestion that the appellant's ineffective assistance
claim had been waived by a failure to object with sufficient specificity
to preserve the complaint. Id. at 580. We held that the claim had been
adequately preserved by means of a pre-trial Motion for Protective
Order and post-trial Motion for New Trial. Id. at 579–80. We then
continued:
Even if appellant and defense counsel had chosen to do nothing before
or at the time of trial to bring to the trial court's attention the particulars
[that underlay appellant's Sixth Amendment claim], there is no reason
for appellant to have been required to specifically claim ineffective
assistance of counsel at the time of trial. We do not require any
defendant to risk alienating his trial lawyer by requiring the defendant
to claim ineffective assistance of counsel at the time of trial. Further,
because many errors by defense counsel are of a technical nature, the
defendant may not even know errors by their trial lawyer are occurring,
and cannot possibly object. Many times it is in the review of the record
by the appellate attorney that errors of an ineffective assistance of
counsel nature are discovered. The timely filed appeal to the court of
appeals by appellant is a proper procedure for seeking relief. Id. at 580
(emphasis added). Thus, a defendant could not, by inaction at trial,
waive the right to make an ineffective assistance of counsel claim on
appeal. Id.
As Counsel herein has stated, it could not be said that Appellant did not try to raise
his claim to the trial court; the trial court simply ruled that he would not dismiss trial
counsel based upon what he observed in the courtroom. Therefore, the real issue in
this appeal is that the Appellant raises additional issues that are not supported by the
James v. State 13-14-00380-CR Page 19
record. Appellant filed a pro se Motion for New Trial in an effort to continue his
complaint. (CR 61-79).
The Court’s analysis in the Dissent (which was a dissent as to whether the
claims of ineffective assistance of counsel, though of constitutional dimension, are
subject to the general rule of procedural default as set forth in Texas Rules of
Appellate Procedure 33.1) provides Appellant with an understanding for the
necessity of an 11.07 writ when its claims are not supported by the record:
Appellant may advance his claim by filing a post-conviction writ of
habeas corpus pursuant to Texas Code of Criminal Procedure article
11.07. Indeed, article 11.07 is by far the preferable means by which a
claim of ineffective assistance of counsel can be fully and fairly
developed. Appellant's claims in the present case amount to an
allegation of acts of omission by trial counsel that, due to their very
nature, are outside the trial record and are thus not amenable to
meaningful appellate review.
An article 11.07, section 3 proceeding will allow appellant an
opportunity to litigate his claim his counsel was constitutionally
ineffective. The habeas court is given considerable power to decide
whether the claim is valid, and may require that trial counsel file an
affidavit—on the record—explaining why he did what he did (or did
not do) or may order a hearing and make findings of fact and
recommend that relief be granted or not be granted. The findings of the
habeas court are then, of course, subject to review by this Court
pursuant to article 11.07, section 5.
We recently held in Ex parte Torres, 943 S.W.2d 469, 475
(Tex.Crim.App.1997) that a writ of habeas corpus is the preferred
method for evaluation of claims of ineffective assistance of counsel.
Indeed it may well be, in most cases, the only means by which a record
can be developed to determine the validity of such claims, a record that
James v. State 13-14-00380-CR Page 20
is rarely available for the appellate court to evaluate. Accordingly,
because article 11.07 provides a practical means by which claims of
ineffective assistance of counsel can be fully and effectively litigated, I
would affirm the court of appeals and hold that claims of ineffective
assistance of counsel, though of constitutional dimension, are subject
to the general rule of procedural default as set forth in rule 33.1.
Robinson at 814.
It is for these reasons that substitute appellate counsel believes that, while
arguable, the meritorious status of Appellant’s ineffective assistance of counsel
claims should be litigated after the full development of supporting evidence for those
claims and that such full development is not currently in this record.
ARGUABLE POINT OF ERROR NO. TWO:
APPELLANT CLAIMS THAT HE WAS DENIED DUE PROCESS OF LAW
BY BEING DENIED AN OPEN AND PUBLIC TRIAL.
Substitute appellate counsel is unable to set forth an argument on this issue
because, other than the Appellant’s comments, there is nothing in the record to
support an allegation that the courtroom was closed to the public.
ARGUABLE POINT OF ERROR NO. THREE:
APPELLANT CLAIMS THAT HE WAS DENIED DUE PROCESS OF LAW
BECAUSE HE WAS NOT GIVEN NOTICE OF THE CHANGES OF TRIAL
JUDGE AND PROSECUTOR.
Substitute appellate counsel is unable to set forth an argument on this issue
because the District Attorney’s office has complete control over the assignment of
cases for litigation, and the original assistant district attorney on the case was no
James v. State 13-14-00380-CR Page 21
longer in that office. In fact, she had been appointed to the bench in the 252 nd District
Court, sitting in Jefferson County, Texas. It is for that reason she disqualified herself
from hearing this trial. Trial Judges are often replaced by newly elected judges, and
prosecutors are often reassigned to different courts. Appellant is not harmed by these
changes, but would have been subjected to a trial judge with a conflict of interest
had she not disqualified herself.
ARGUABLE POINT OF ERROR NO. FOUR:
APPELLANT CLAIMS THAT HE WAS DENIED DUE PROCESS OF LAW
BECAUSE BASED UPON THE ARGUMENTS OF THE PROSECUTOR AT
THE SENTENCING HEARING AND BY THE TRIAL COURT BY
RELYING ON THE PRESENTENCE REPORT AND ITS CONTENTS
RELATIVE TO EXTRANEOUS OFFENSES AND VICTIM STATEMENTS.
At the trial of an offense committed on or after September 1, 1993, regardless
of the plea and whether the punishment is being assessed by the judge or the jury,
evidence may be offered as to any matter the court deems relevant to sentencing.
Enlow v State, 46 S.W.3d 340, 346 (Tex. App., Texarkana 2001, no pet.). This
includes, but is not limited to: (1) the prior criminal record of the defendant; (2) the
defendant’s general reputation; (3) the defendant’s character; (4) an opinion
regarding the defendant’s character; (5) the circumstances of the offense being tried;
and (6) notwithstanding Texas Rules of Evidence 404 and 405, any other evidence
of an extraneous crime or bad act that is shown beyond a reasonable doubt by
James v. State 13-14-00380-CR Page 22
evidence to have been committed by the defendant or for which the defendant could
be held criminally responsible, regardless of whether the defendant has previously
been charged with or finally convicted of the crime or act [C.C.P. Art. 37.07 § 3(a)].
Relying on an analysis found in the Texas Criminal Practice Guide,
74.01A[4], which has synthesized the relevant cases, counsel herein believes that the
use of information from a presentence report is not only relied upon by the Court,
but can also be referred to by the parties. The analysis provides:
A judge who imposes sentence on a defendant for a felony or
misdemeanor is usually required to order the preparation of a
presentence report [C.C.P. Art. 42.12 § 9(a)]. Unlike punishment
hearings conducted before a jury, when the judge sentences, a pre-
sentence report is usually ordered and the rules of evidence do not apply
to the report [see Fryer v. State, 68 S.W.3d 628, 631–32 (Tex. Crim.
App. 2002)—PSI properly includes victim’s opinion regarding
probation for defendant although testimony to this effect would not be
admissible in formal hearing under rules of evidence. Wilson v. State,
108 S.W.3d 328, 331 (Tex. App., Fort Worth 2003, no pet.) applying
prior cases but criticizing presentence reports as raising constitutional
questions with regard to confrontation and cross-examination and
statutory conflict with Art. 37.07, section 3(a)(1) C.C.P. requiring
extraneous offenses introduced at punishment to be proved beyond
reasonable doubt]. For example, while section 3(a)(1) of article 37.07
of the Texas Code of Criminal Procedure requires that any extraneous
misconduct evidence may be considered in assessing punishment only
if the extraneous misconduct has been shown to have been committed
by the defendant beyond a reasonable doubt, if the extraneous
misconduct is contained in a PSI, rather than developed in a formal
sentencing hearing, the requirement does not apply [Smith v. State, 227
S.W.3d 753, 763 (Tex. Crim. App. 2007) due process does not require
James v. State 13-14-00380-CR Page 23
that trial court must glean all relevant sentencing information from
evidence presented in formal courtroom proceeding].
**************************
Because a presentence investigation report (PSI) is not based on sworn
testimony obtained in a courtroom, virtually all statements in a PSI are
hearsay any statement in the report that reflects negatively on a
defendant would constitute “testimonial” statements for Confrontation
Clause purposes because statements are gathered by a state employee
for the express purpose of using the report in a probation or sentencing
determination. Despite the extensive use of hearsay in presentence
reports, hearsay and Confrontation Clause objections to the report have
been rejected based upon the need for a broad range of information to
individualize sentencing decisions and the desire to contain the scope
of sentencing hearings in light of the broad range of factors considered
[Stringer v. State, 309 S.W.3d 42, 46–47 (Tex. Crim. App. 2010)—
citing policy considerations articulated in Williams v. New York, 337
U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949)]. The decision of the
United States Supreme Court in Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), has led to a renewed
consideration of the propriety of the extensive use of hearsay in
presentence reports [Wilson v. State, 108 S.W.3d 328, 331–32 (Tex.
App.—Fort Worth 2003)—applying prior cases holding Confrontation
Clause rights and hearsay rules inapplicable to presentence report but
criticizing these cases as inconsistent with constitutional requirements].
In Crawford, the Supreme Court held that a defendant had a right to
confront witnesses who made testimonial statements against the
defendant. The only exception to that right is if the witness is
unavailable and the defendant has had a prior opportunity for cross-
examination. Crawford dealt with the guilt phase of trial, and courts
have disagreed about whether it applies to a punishment hearing after a
finding of guilt [Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App.
2010)].
**************************
James v. State 13-14-00380-CR Page 24
The traditional view, permitting presentence report hearsay, appears to
prevail in non-capital cases in which the defendant has elected to have
the judge to determine punishment. The United States Court of
Appeals for the Fifth Circuit has held broadly that Crawford does not
apply to a sentencing hearing [United States v. Fields, 483 F.3d 313,
327–28 (5th Cir. 2007)—witnesses providing information to court
after guilt established are not accusers within meaning of
Confrontation Clause]. The Texas Court of Criminal Appeals has also
rejected a Crawford objection to the use of hearsay statements alleging
the defendant’s commission of unadjudicated offenses reported in the
presentence investigation report based upon traditional policy
concerns of providing the sentencing authority with access to a wide
body of information in the interest of individualizing punishment as
well as the statutory authorization for hearsay information and the
opportunity of the defendant to present contrary information [Stringer
v. State, 309 S.W.3d 42, 48 (Tex. Crim. App. 2010)—leaving open
question of applicability of Crawford in cases in which defendant has
not elected judge for sentencing].
**************************
A sentencing hearing conducted under the rules of evidence before a
jury will be a far different proceeding than a hearing conducted by the
court based upon a presentence report. Many of the procedural
protections applicable to jury proceedings will be inapplicable. For
example, it is doubtful that Article 37.07(a)(1) Code of Criminal
Procedure, which requires evidence of an extraneous crime or bad act,
offered at a punishment hearing, to be shown “beyond a reasonable
doubt by evidence to have been committed by the defendant” applies
to the judge’s sentencing determination based upon a presentence
investigation report. Article 42.12, section 9 expressly provides that a
presentence report should contain the criminal and social history of the
defendant. Those provisions do not require offenses contained in the
criminal history section of the presentence report to be certified and
the trial court is specifically authorized by statute to consider the
content of the presentence report. The fact that the presentence report
James v. State 13-14-00380-CR Page 25
contains hearsay information does not preclude its use by the
sentencing judge [Bell v. State, 155 S.W.3d 635, 639 (Tex. App.,
Texarkana 2005, no pet.) defendant’s objection that criminal history in
presence report was hearsay properly denied]. If there is inaccurate
information in the presentence, Code of Crim. Proc. Article 42.12 Sec.
9 provides that, before sentencing, the judge “shall permit the
defendant or his counsel to read the presentence report” and the judge
is required to “allow the defendant or his attorney to comment on a
presentence investigation … and, with the approval of the judge,
introduce testimony or other information alleging a factual
inaccuracy.” [42.12 section 9(d), (e)]. These provisions place the
burden on the defendant to prove that the information contained in the
PSI is inaccurate [Bell v. State, 155 S.W.3d 635, 639 (Tex. App.,
Texarkana 2005, no pet.)].
There were no objections or corrections made to the presentence investigation
report at the time of sentencing and there are no preserved grounds to complain of
the report or its use on appeal.
ARGUABLE POINT OF ERROR NO. FIVE:
APPELLANT CLAIMS THAT THE TRIAL COURT ERRED IN
ACCEPTING APPELLANT’S GUILTY PLEA WITHOUT PROVIDING
THE NECESSARY ADMONISHMENTS AND THEREFORE THE PLEA
WAS INVOLUNTARY4
4
Counsel notes that Appellant makes claims of trial counsel’s ineffective assistance that may
support the court setting aside his guilty plea, however, as stated above, that portion of his claims
of involuntary plea should be developed in the writ of habeas corpus. Court of Criminal Appeals
explicitly recognized that an involuntary guilty plea is unconstitutional but reasoned that
involuntary plea claims are more appropriately presented through other procedures, such as
motions for new trial and habeas corpus applications that may be supported by information from
sources broader than the appellate record because such claims usually result from circumstances
outside the record such as erroneous information, impaired judgment, or ineffective assistance of
counsel. [Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001)-although that case had a plea
agreement].
James v. State 13-14-00380-CR Page 26
After voir dire, but before any jurors were seated, (2Sup.RR, 61, 2RR, 4),
Appellant entered his plea of Guilty before the Court. (2RR, 5 [l.12-14]). Prior to
entering his guilty plea the State read aloud the entire indictment. (2RR, 4-5).
Appellant testified that he did everything that he was charged with in the indictment
(2RR, 6) and that he understood everything he had signed with his lawyer. (2RR, 5
[l.15-20]). Additionally, Appellant testified that he was pleading guilty of his own
free choice. (2RR, 5 [l/23-25]). The trial court verified that Appellant had an
absolute right to a jury trial, that a presentence investigation report would be ordered,
that based upon the information he is given the trial court would decide what the
punishment would be, that he was not bound to do what either side was
recommending, and, that Appellant could get life in prison under the law “this”
[emphasis added ] evidence. (2RR, 5[l.4-22]).
A record that indicates that the trial court properly admonished the defendant
provides a prima facie showing that the guilty plea was made voluntarily and
knowingly. Martinez v. State, 981 S.W.2d 195,197 (Tex.Crim.App.1998). Although
Martinez is a case discussing ineffective assistance of counsel because the Appellant
alleged that his attorney did not tell him his plea offer, it still stands for the
proposition that as a result of signing the admonishments, a heavy burden is placed
on defendant to show a lack of voluntariness. Id.
James v. State 13-14-00380-CR Page 27
Additionally, Article 26.13 of the Texas Code of Criminal Procedure
stipulates that prior to accepting a plea of guilty, a trial court must admonish a
defendant of the range of punishment attached to the offense charged. Tex. Code
Crim. Proc. Ann. art. 26.13 (a) (1) (Vernon 1989); Gomez v. State, 921 S.W.2d 329,
335 (Tex.App.-Corpus Christi 1996, no pet.). In admonishing the defendant,
“substantial compliance by the court is sufficient, unless the defendant affirmatively
shows that he was not aware of the consequences of his plea and that he was misled
or harmed by the admonishment of the court.” Tex. Code Crim. Proc. Ann. art. 26.13
(c) (Vernon 1989). The trial court may make the requisite admonitions either orally
or in writing; and if the admonitions are made in writing, the court must receive a
statement signed by the defendant and his attorney indicating that the defendant
understands the admonitions and is aware of the consequences of his plea. Tex. Code
Crim. Proc. Ann. art. 26.13(d) (Vernon 1989); [and, see: Muñoz v. State, 840 S.W.2d
69, 75 (Tex.App.-Corpus Christi 1992, pet. ref'd) - If the court admonishes a
defendant in writing, rather than orally, the court “must receive a statement signed
by the defendant and the defendant's attorney that he understands the admonitions
and is aware of the consequences of his plea.” Muñoz, 840 S.W.2d at 75]
In this case, the documents referred to by the trial court and tendered, without
objection, as State’s exhibit 1, are the written plea admonishments. (4RR, in its
James v. State 13-14-00380-CR Page 28
entirety as no page numbers are present to refer).5 In those written plea
admonishments, the Appellant acknowledges the punishment range for the offense
to which he is pleading guilty; the fact that the court is not bound to or limited by
any punishment recommendations made by the State; that he understands those
admonishments; that he is aware of the consequences of his plea; that he is mentally
competent; that his plea is freely and voluntarily made; that he gives up and waives
any additional time to prepare for trial; that he is satisfied with his representation
provided by his attorney who provided fully effective and competent legal
representation; that his is giving up rights provided by law, specifically the right to
the right to a jury trial with the appearance, confrontation and cross-examination of
the witnesses, that he consents to the oral and written stipulations in the case and
agrees that they may be considered as evidence; that he has read the charging
instrument and his attorney has explained it to him and he committed each and every
element alleged; that he gives up his right to confidentiality of the presentence report
and agrees that it may be filed publicly in the papers of his case; that he is guilty of
the offense and all lesser included offenses charged against him in this case; and that
all of that is true. (4RR). The waivers and stipulations made by the defendant are
5
Not to add more confusion to this brief but to address the Nunc Pro Tunc Written Plea
Admonishments and Unagreed Plea Punishment Recommendations (2Sup.CR, in its entirety), this
counsel will discuss those in Arguable Point of Error No. 7, hereinbelow.
James v. State 13-14-00380-CR Page 29
sworn to in writing before the Deputy District Clerk, and, additionally, are joined in
and approved by the trial counsel, the State’s counsel and the trial court judge,
affirming that they also believe that the defendant’s statements were freely and
voluntarily made and that the defendant’s plea in the case was free and voluntarily
entered. (4RR).
The trial court’s admonishmentS were both orally and in writing, and
completely apprise Appellant of all requisite admonitions under the statute. There
is no trial court error as to its admonishments resulting in Appellant’s complained of
involuntary plea, and therefore no meritorious argument of trial court error relative
to an involuntary plea is supported by the record.
ARGUABLE POINT OF ERROR NO. SIX:
THE APPELLANT CLAIMS HIS DUE PROCESS RIGHTS WERE
VIOLATED WHEN HE WAS NOT PROVIDED A COMPLETE
RECORD/STATEMENT OF FACTS FROM HIS COURT PROCEDINGS.
The appellate court will do a harmless error analysis in the event a complete
record for review has not been prepared. In Perez v State, 824 S.W.2d 565
(Tex.Crim.App. 1992, en banc), the court stated that the failure to provide a complete
record on appeal “interferes with the judicial process by blocking an appellate court's
ability to assess the record of a trial.” Id, at 568. The court further explained that,
without a complete record to assess the integrity of the verdict, there is no way to
James v. State 13-14-00380-CR Page 30
perform a harmless error analysis. Id. However, in that case, there were lost
recordings preventing transcription of the missing parts. Id.. at 566.
Preservation of error is a systemic requirement that a first-level appellate court
should ordinarily review on its own motion. See Archie v. State, 221 S.W.3d 695,
698 (Tex.Crim.App.2007) (citing Jones v. State, 942 S.W.2d 1, 2 n. 1
(Tex.Crim.App.1997)). To preserve an error, appellant must submit a timely and
specific objection into the trial-court record. See Tex.R.App.Proc. 33.1(a); Tex. R.
Evid. 103(a)(1). The error alleged on appeal must comport with the objection
submitted to the trial court. See Tex.R.App.Proc. 33.1; Heidelberg v. State, 144
S.W.3d 535, 537 (Tex.Crim.App.2004) (“the legal basis of a complaint raised on
appeal cannot vary from that raised at trial”).
Had there been proceedings that should have been recorded by the court
reporter, the Appellant would have been required to object to her failure to do so at
the trial level. In Valle v State, 109 S.W.3d 500 (Tex.Crim.App. 2003) the Court
reminds us that R. App. Proc. 13.1 states in part that the official court reporter must
“attend court sessions and make a full record of the proceedings unless excused by
agreement of the parties;” that under former Rules 11(a)(1) and (2), a record was
required only when requested by the trial court or a party; and, that the current rule
therefore makes automatic a procedure that used to be conditioned upon a request.
James v. State 13-14-00380-CR Page 31
Therefore, in rejecting a previous ruling in Taguma v State, 47 S.W.3d 663 (Corpus
Christi – 2001), the Valle court found that it is required for an objection to be made
at the trial court to preserve error if the court reporter is not recording the proceedings
[that case addressing bench conferences].
In this case, the Appellant suggests that the Court Reporter was not recording
the proceedings and bases this complaint (see Appellant’s Pro Se Motion Objecting
to the Denial of Reporter’s Record Audio Comparison on file with this appellate
court, file-mark reflecting May 27, 2015) on a lapse of time from the end of Voir
Dire, April 29, 2014 at approximately 10:57 am until Court recalled the case later
the same day at approximately 1:59 pm. (2Sup.RR, 61 [l.10], 2RR, 4 [l.10]).
However, it is clear that the court concluded the proceedings so that the parties could
strike their jury lists (2Sup.RR, 61 [l.7-17]), which would be the logical “next step”
after voir dire in a jury trial. It is also clear, that during the break, decisions were
made to enter a plea of guilty and execute written admonishments. The Court went
back on the record and took up the plea hearing in the early afternoon. (2RR). If
there were Court proceedings going on without the transcription of the Court
Reporter, Appellant needed to object at that time. There are no objections in the
record to indicate that there were proceedings being held without the Court Reporter.
James v. State 13-14-00380-CR Page 32
This counsel does not find the allegation of incomplete record to have merit
and is not supported by the record nor objected to at the trial level.
ARGUABLE POINT OF ERROR NO. SEVEN:
THE NUNC PRO TUNC ADMONISHMENTS AND UNAGREED PLEA
AGREEMENT DOES NOT PROPERLY CORRECT THE TRIAL COURT’S
CLERICAL ERROR [DATE OF DOCUMENTS] AND SHOULD BE
WITHDRAWN AND REPLACED WITH AN ORDER NUNC PRO TUNC.
The trial court called this case for pre-trial on April 28, 2014. The next day,
the first day of trial, April 29, 2014, all the parties signed the Written Plea
Admonishments and Unagreed Plea documents but the electronically-created plea
papers reflected the earlier pre-trial date [April 28, 2014.]. (CR 29-31). The trial
court attempted to correct this error by issuing a Nunc Pro Tunc of the documents.
(2Sup.RR, in its entirety).
Tex. R. Civ. Proc., Rule 316 provides:
Clerical mistakes in the record of any judgment may be corrected by
the judge in open court according to the truth or justice of the case after
notice of the motion therefor has been given to the parties interested in
such judgment, as provided in Rule 21a, and thereafter the execution
shall conform to the judgment as amended.
In this case, although his plenary power ended once the record was filed with
the Court of Appeals, the trial Court can issue a Nunc Pro Tunc Order because in a
criminal case, after the appeal has been disposed of, the trial court is again authorized
James v. State 13-14-00380-CR Page 33
to enter a judgment or sentence nunc pro tunc. DeLuna v. State, 387 S.W.2d 678,
679 (Tex. Crim. App. 1965). If the result requested in a motion for a judgment nunc
pro tunc would be unfavorable to the defendant, the defendant should be given an
opportunity to be present, represented by counsel, at a hearing on the propriety of
entering the order. Shaw v. State, 539 S.W.2d 887, 890 (Tex. Crim. App. 1976)
[order upheld in case in which hearing was conducted]. However, if an unfavorable
Nunc Pro Tunc is entered ex parte, but is otherwise completely proper, the defendant
is not entitled to a remand simply to require the trial court to hold a hearing on the
propriety of the order. Homan v. Hughes, 708 S.W.2d 449, 454–455 (Tex. Crim.
App. 1986); Dees v. State, 722 S.W.2d 209, 216 (Tex. App.-Corpus Christi 1986,
pet. ref.).
In this case, however, the document sought to be corrected was not actually a
prior Order or Judgment. Further, the form used to correct the incorrectly dated
document is a different pre-printed form than the version of admonishment currently
created by electronic preparation in Jefferson County criminal courts. Although all
of the requisite admonishments are in each document, they are, in fact, different
documents. Additionally, if the Nunc Pro Tunc document were to replace the
original documents, they would, in effect, reflect that none of the parties except the
trial court Judge approved the document, and the Clerk would be certifying to a
James v. State 13-14-00380-CR Page 34
fingerprint that is not there. There is no question that the actual admonishments were
reviewed and signed by the parties and that they were done on the day of the plea
hearing. The Nunc Pro Tunc does not harm the Appellant, and neither will its
withdrawal.
Substitute appellate counsel believes that the more appropriate method for
correcting the plea papers would be for the trial court to issue its Order Nunc Pro
Tunc, acknowledging the clerical error on the originally executed plea papers and
declaring that the date shall thereafter be correctly amended to reflect the actual date
the parties were there and executed the document: April 29, 2014.
ARGUABLE POINT OF ERROR NO. EIGHT:
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT GRANTING
APPELLANT’S MOTION TO DISMISS COURT-APPOINTED COUNSEL
PRIOR TO TRIAL.
The Trial Court’s rulings as to granting a motion to dismiss court-appointed
counsel is reviewed under the abuse of discretion standard.
The Appellant, at the pretrial hearing (1Sup.RR) requested to file a motion to
dismiss counsel. The trial court initially wanted Appellant to give his motion to his
counsel for filing, then proceeded in a hearing on the motion. Trial judge asked
Appellant in what way trial counsel was failing to adequately represent him and
Appellant attempted to respond. Appellant stated trial counsel’s inadequacies were
James v. State 13-14-00380-CR Page 35
communication, discovery issues such as failure to allow Appellant to view the
video, and, in his written motion, failure to investigate. Trial judge allowed trial
counsel and the State to respond and appeared satisfied. He denied the pro se
motion. However, a major issue, failure to investigate, was not addressed by trial
counsel.
It is true that a trial court has no duty to search for counsel until an attorney is
found who is agreeable to the accused. Webb v. State, 533 S.W.2d 780, 784 n. 3
(Tex.Crim.App.1976); Martinez v. State, 640 S.W.2d 317, 320 (Tex.App.—San
Antonio 1982, pet. ref'd). Once the trial court has appointed an attorney to represent
the accused, the accused carries the burden of proving he is entitled to a change of
counsel. Webb, 533 S.W.2d at 784 n. 3; Chase v. State, 706 S.W.2d 717, 719
(Tex.App.—Corpus Christi 1986, no pet.). In fact, as seen in Maes v State, 275
S.W.3d 68 (Tex.App.-Waco 2008), the Appellant argued that the trial court did not
duly consider his motion and the Court of Appeals believed that Appellant was
wrong. In that case the Appellant there did not give any specific grounds to support
his allegations. The Appellate court said;
A defendant bears the burden of making the trial court aware of his
dissatisfaction with counsel, stating his grounds for his dissatisfaction,
and offering evidence in support of his complaint. Hill v. State, 686
S.W.2d 184, 187 (Tex.Crim.App.1985). Here, defendant admitted he
had been able to confer with his counsel to discuss his case. However,
when the court directed its attention to defendant's motion, he only
James v. State 13-14-00380-CR Page 36
offered a vague expression of dissatisfaction with his court-appointed
counsel. On this record, we cannot conclude the trial court abused its
discretion by denying defendant's motion to dismiss court-appointed
counsel.
Maes at 71.
If, the court did not abuse his discretion in Maes because the Appellant only
offered a vague expression of dissatisfaction, then, in this Court it should be said
that the Court abused its discretion because Appellant listed lack of communication,
discovery issues, and, in his written motion, lack of investigation. The Court
allowed a hearing on the pro se motion but did not address “lack of investigation,”
which, in a murder case would seem imperative. The Court must have felt that the
Appellant was entitled to see the video in connection with his case because he
indicated that provisions would be made for that in the courtroom (1Sup.RR. 5-6);
however, the trial court should have considered that a clue that perhaps Appellant’s
claims had merit.
Although this honorable Court may cite to Appellant’s waivers wherein he
later indicated satisfaction with his attorney, he obviously tried to retract his plea at
sentencing and continued to argue his dissatisfaction.
Appellate court should reverse the conviction and order that new trial counsel
be appointed to represent him or that the trial court should hold a hearing on all of
the matters raised by Appellant, including, trial counsel’s failure to investigate.
James v. State 13-14-00380-CR Page 37
The Appellant was harmed because he would not have felt pressured into
pleading guilty had he been properly heard on this issue by the trial court and
provided new counsel.
ARGUABLE POINT OF ERROR NO. NINE:
THE APPELLANT’S CASE SHOULD BE REMANDED AND RETURNED
TO HIS PREJUDGMENT STATUS IN ORDER THAT HE MAY BE
ALLOWED TO FILE A MOTION FOR NEW TRIAL.
As recently as this year, the Corpus Christi Court of Appeals restated the
standard of review for new trials in Orellana v State, 2015 WL 4381219 (Tex.App.
– Corpus Christi – Edinburg) [not published but citing referable decisions], and
states as follows:
Appeals courts review “a trial court's denial of a motion for new trial
under an abuse of discretion standard.” Holden v. State, 201 S.W.3d
761, 763 (Tex.Crim.App.2006). We do not substitute “our judgment
for that of the trial court; rather, we decide whether the trial court's
decision was arbitrary or unreasonable.” Id. We reverse “only when
the trial judge's decision was so clearly wrong as to lie outside that
zone within which reasonable persons might disagree.” Smith v. State,
286 S.W.3d 333, 339 (Tex.Crim.App.2009). The “purpose of a
hearing on a motion for new trial is to: (1) ‘decide whether the cause
shall be retried’ and (2) ‘prepare a record for presenting issues on
appeal in the event the motion is denied.’ ” Id. (citing State v.
Gonzalez, 855 S.W.2d 692, 695 (Tex.Crim.App.1993) (plurality
opinion)). A trial judge would abuse his discretion by failing to hold
a hearing “if the motion and accompanying affidavits (1) raise matters
not determinable from the record and (2) establish reasonable grounds
showing that the defendant could potentially be entitled to relief.”
Hobbs v. State, 298 S.W.3d 193, 199 (Tex.Crim.App.2009). The
James v. State 13-14-00380-CR Page 38
“second requirement limits and prevents ‘fishing expeditions.’ ” Id.
However, a defendant is “not entitled to a hearing on his motion for
new trial unless he ‘establishes the existence of ‘reasonable grounds'
showing that the defendant ‘could be entitled to relief.’ ” Id. In order
to show “reasonable grounds”, a defendant must “as a prerequisite to
obtaining a hearing and as a matter of pleading, [show that] the motion
for new trial ... [is] supported by affidavit, either of the accused or
someone else” specifically setting out the factual basis for the claim.
Garcia v. State, 291 S.W.3d 1, 9 (Tex.Crim.App.–Corpus Christi
2008, pet. ref'd). However, affidavits that are “conclusory in nature
and unsupported by facts do not provide the requisite notice of the
basis for the relief claimed; thus, no hearing is required.” Smith, 286
S.W.3d at 339.
Orellana v State, 2015 WL 4381219 [not published – although referring to citable
opinions].
Additionally, in connection with this point of error, the court is called upon to
consider the rules regarding hybrid representation.
The Court of Criminal Appeals in 2007 gave us its Opinion abrogating
Busselman v State, 713 S.W.2d 711 (Tex.App. – Houston, 1st Dist. 1986), regarding
hybrid representation:
On appeal, the appellant argued that the trial court erred in denying his
motion for new trial without holding a hearing. The First Court of
Appeals rejected the argument, relying on its decision in Busselman v.
State, a case in which a defendant, acting pro se,filed a pre-trial motion
to dismiss under the Speedy Trial Act. Some time after that, the
defendant was appointed a trial lawyer, who attempted to file the same
motion with the trial court. The defendant's lawyer did not know that
her client had previously filed the same motion, nor did she know that
her motion had never been received by the District Clerk. Eventually,
the trial court overruled the pro se motion.
James v. State 13-14-00380-CR Page 39
On appeal, Busselman argued that the trial court erred by refusing to
hear his motion for new trial. The First Court of Appeals disagreed, but
not on the grounds that the trial court had exercised proper discretion.
Rather, the Court of Appeals first noted that there is no right to “hybrid”
representation, which is defined as representation partly by counsel and
partly by self. The Court then held:
[B]ecause appellant had counsel and therefore had no right to urge his
pro se motion on October 21, 1985, the trial court did not err by denying
it. A trial court may, in its discretion, allow hybrid representation and
may grant relief in such situations, in which case the parties will be
bound by the court's rulings. However, when, as here, the court denies
relief to a defendant who has no right to present his motions, we will
not find the denial to be reversible error.
.
Thus, the Court of Appeals in Busselman announced a new rule which
it has now applied to the case at hand. That rule is, because a defendant
has no right to hybrid representation, the defendant likewise has no
right to appellate relief from any trial-court decision on a pro se motion
made while the defendant was represented by counsel.
Robinson v State, 240 S.W.3d 919, 921.
What is interesting about Robinson, is that in that case the Court
acknowledges that the trial court could ignore a pro se motion, but announces that if
the Court rules on a pro se motion, the ruling will be reviewable on appeal.6 Id. at
922. In that case the Court was not clear what the trial court intended by its ruling,
6
Just as we will see hereinbelow regarding the trial court’s denial of this Appellant’s pro se motion
to dismiss counsel.
James v. State 13-14-00380-CR Page 40
so the matter was remanded for a more clarified understanding of the trial court’s
intent denying the motion. Id. at 923.
Regarding Appellant’s hybrid Motion for New Trial and the denial of the
motion by operation of law, it is unclear whether Appellant’s desires to be heard fell
through the proverbial “cracks” in the system. Trial counsel remained appointed and
was instructed to file a Notice of Appeal if that was what the Appellant wanted.
(3RR, 11 [l.6-21]). Trial counsel thereafter filed notice of appeal on Appellant’s
behalf, on June 11, 2014 (CR 70, 72), and appellate counsel was appointed. On June
12, 2014, trial counsel was withdrawn by Order of the trial Court. (CR 80).
The trial court had mentioned earlier that he could not take motions directly
from the Appellant while represented by counsel. (1Sup.R.R., 6 [l.6-13]). Then, on
lines 17 and 18 of the supplemental reporter’s record, volume 1, page 6, the trial
court acknowledges receipt of Appellant’s Motion to Dismiss Counsel, and denies
it. (CR 42 and 43, Pro se Motion to Dismiss Counsel and Motion to Suppress were
file-marked in May, 2014). On a later date, at the sentencing hearing, the trial court
accepted a document that began with “Dear Judge,” and had it entered into the
record. (CR 52-53). It can be confusing to a defendant before the Court when trying
to understand whether he can or cannot file his own motions when represented by
James v. State 13-14-00380-CR Page 41
counsel, especially when some of his pro se matters are orally rejected but then
subsequently accepted.
Several days lapse and there is no indication that Appellant was made aware
whether his trial counsel had been withdrawn or whether appellate counsel had been
appointed. In fact, those things occurred at about the same time that Appellant filed
his pro se Motion for New Trial.
There is nothing in the record to indicate that the District Clerk’s office or the
Court returned the Motion to Appellant stating that he could not file the motion pro
se while represented by counsel - in fact, the Motion was file-marked. This file
already had unusual history in that the trial court judge in whose court the case was
filed had disqualified herself and requested that the case be reassigned to another
Judge. Then the Judge of the Drug Court heard the case. There is nothing in the
record to indicate the Appellant was notified that he could not file his Motion; there
is nothing in the record to indicate the pro se motion was forwarded to trial counsel;
there is nothing in the record to indicate that the motion was forwarded to appellate
counsel; there is nothing in the record to indicate that the motion was forwarded to
either trial court.
If a pro se motion is filed and the trial court never knows it, then allowing the
motion to be overruled by operation of law could not be, as mentioned in Holden,
James v. State 13-14-00380-CR Page 42
above, an arbitrary or unreasonable act of the trial court, nor a failure to rule.7 In
fact, the overruling would have been made unconsciously, without the trial Court
even knowing the motion existed. Somewhere, someone should have notified the
Appellant that his pro se motion would not be filed or sent to the court’s attention
because it was filed pro se, or it should have been forwarded to counsel so that he
could decide which way to proceed on his client’s wishes. Although the expiration
of 75 days for ruling on the Motion would have expired in mid-August, and the
record was filed in late July, appellate counsel would have been required to have
completely reviewed the record prior to his deadline to see that the pro se Motion for
New Trial was on file. Not only that, but both the Clerk’s record and the Reporter’s
record were filed after the 30 day limit to file the Motion for New Trial had passed.
The pro se motion met the requisite particulars set forth above, in addition to being
sworn to and including Appellant’s affidavit which set out reasonable grounds
showing Appellant could be entitled to relief and supported by his claims with a
factual basis.
7
Tex. Rules App. Proc., Rule 21.8 provides (a) Time to Rule. The court must rule on a motion
for new trial within 75 days after imposing or suspending sentence in open court. (b) Ruling. In
ruling on a motion for new trial, the court may make oral or written findings of fact. The granting
of a motion for new trial must be accomplished by written order. A docket entry does not
constitute a written order. (c) Failure to Rule. A motion not timely ruled on by written order will
be deemed denied when the period prescribed in (a) expires.
James v. State 13-14-00380-CR Page 43
The Appellant was harmed in that he would have been able to fully develop
his appellate record through his new trial proceedings.
It is in the interest of justice that the court of appeals should remand the case
back to the trial court to its prejudgment status which will restart the Motion for New
Trial timetable and afford Appellant or Appellant’s counsel an opportunity to file a
Motion for New Trial and develop his claims at the trial court level.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable
Court sustain points of error seven, eight and nine, ordering the trial court to enter a
nunc pro tunc order correcting the date of the admonishments and other plea
documents; ordering that the trial court should re-hear Appellant’s motion to dismiss
counsel, and, in addition, restore the Appellant to his status prior to judgment in the
trial court so that the motion for new trial timetable should start anew.
Should the Court of Appeals direct substitute appellate to further brief or
expound upon any issues, counsel prays that the Court will so direct her.
James v. State 13-14-00380-CR Page 44
Respectfully submitted,
______________________________
KEVIN SEKALY CRIBBS
Attorney at Law
7705 Calder Ave
Beaumont, Texas 77706
Telephone: (409) 899-2051
Facsimile: (409) 866-9282
sekalyfirm@yahoo.com
Texas Bar No. 00792826
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the foregoing Brief of
Appellant was electronically served upon the office of the Criminal District Attorney
of Jefferson County, Texas, Jefferson County Courthouse, 1085 Pearl, Beaumont,
Texas, 77701, on this the _______
3rd day of _____________,
September 2015.
______________________________
KEVIN SEKALY CRIBBS
CERTIFICATE OF COMPLIANCE
Pursuant to Rules 9.4(i)(1), 9.4(i)(2)(A), and 9.4(i)(3), Tex. R. App. Proc, I
hereby certify that the word count of the program used to prepare this document is
within the appellate guidelines being 9923 words from the beginning of the brief
through to its end, prior to the signature block for counsel.
______________________________
KEVIN SEKALY CRIBBS
James v. State 13-14-00380-CR Page 45