Piland, James Earl v. State

Cause No. 076-tS
IN THE
COURT OF C&IMDM&L APPEALS ORIGINAL
OF TEXAS
lm~W~WWW
JAMES EARL PILAND
§
Petitioner
§ IN THE 4th
vs.
§ JUDICIAL DISTRICT COURT
THE STATE OF TEKAS OF RUSK COUMY, TEXAS
Respondent
ECEIVED IN
OF CRIMINAL AF"
FILED IN
COURT OF CRIMINAL APPEALS MAR 182015
NAR 20 2015
Abel Acosta, Clerk
VEEFEIW FOR DISCRETIOMARY REVIEW
James Earl Piland #1919190
Alfred Stringfellow Unit
1200 F.M. 655
Rosharon, Texas 77583
ORAL ARGUMENT WAIVED
IDENTITY OF PARTIES
TRIAL JUDGE PRESIDING
The Honorable Judge Gossett
Courthouse, 115 Main St., Rocn? 303
Henderson, Texas 75652
Telephone #{903)657-0358
APPELLATE
The Honorable Justice Carter
The Honorable Justice Moseley, J.J
Chief Justice C.J. Moriss
Sixth Court of Appeals
Bi-State Justice B.ldg0
100 K. State Line Ave., Ho 20
Texar&ana, Texas 75501-5666
PETITIOKER
TRIAL DEFEASE ATTORNEY
Allison Biggs, Atty-at-Law
300 w. Main St.
Henderson, Texas 75652
Telephone #(903)657-8195
DIRECT APPEAL ATTORNEY
T.W. Davidson, Atty-at-Law
329 S. Fannin Avenue
Tyler, Texas 75702
Telephone #(903)535-9600
RESPONDENT
PROSECUTOR AND APPELLATE COUNSEL
Richard Kennedy, Atty-at-Law
Sack Wavrusa, Atty-at-Law
115 N. Main St., Room 302
Henderson, TeKas 75652-3147
Telephone #(903)657-2265
.. 'TABLE OF CONTENTS. PAGE #
IDEOTITY OF PARTIES*............ ...., i
TABLE OF CONTENTS.. ii-iii
INDEX OF AUTHORmES......^...,......... »..
STATEMEK'T REGARDING ORAL ARGUMENT......
I. STATEMENT OF THE CASE.... .. I 1-3
II. STATEMENT OF PROCEDURAL HISTORY.....*......* 3-4
III. GROUNDS FOR REVIEW......................... 4
1. Judicial Misconduct - Was evidence factually and legal ;
ally sufficient to support the conviction?
2. Legal and Factual.Insufficiency of Evidence - Is the
indictment so flawed that the jury convicted the
Defendant of the wrong offense under the Texas Penal
Codes?
3. Void Judgment - Did the trlial judge atjuse his discre
tion in his failure to allow Defense Attorney to pro
perly prepare for trial - denying the Petitioner a
fair trial with effective counsel?
1 4. Ineffective Assistance of Counsel - Was defense coun
sel ineffective for* failure to file a Motion for Jury
, InstJtucticsn on a Lesser-Included offense?
5. Ineffective Assistance of Counsel r was defense coun
sel ineffective for her failure to investigate and
bring to trial the Petitioner's version of the facts?
6. Ineffective Assistance of Counsel - was defense coun
sel ineffective when she admitted she was ineffective
at trial due to trial judges actions?
7. Pzosecutorial Misconduct - Prosecutor failed to give
Defense Counsel full notice of enhancement of charges
until a half hour prior to Voir Dire?
ii
TMBLE OF CONTENTS PAGE g
IV. ARfeXBter "AND ALACRITIES, 5-23
PRAYER FOR RELIEF... . . . . . . . . . . . . 23-24
VERIFICATION *....... .... 24
•;>- • •• - ••-.•., •• • < '..-••
CERTIFICATE OF SERVICE. .•..,._...' .* 25
APPENDIX A
, ' ' ...,., A. • ..'....„
<• Opinion of the Sixtii Court of Appeals at Texarkana
3.11
FEBERRL STATOTES IM3EX OF Al^ORTTTES PAGE #
E?ule.s of Criminal Procedure,.' Rule 60(b) 11
28 U.S.C.,§n46.....v*.......................... 24
SUPREME COURT REPORTER
Berger v. U.S., 55 stct. 629 (T985)..;..........„.....I........ 23
Cronic v. U.S., 104 S. Ct. 2039 (1984)......i................... 12
Cuyler v. Sullivan, 100 S.Ct. >716 (1978),..................... 20
Haines v. Kerner, 92 S. Ct. 594 (-1972) ..*.... 5
Hughes v. Rcwe, 101 S.Ct„ 173 (1988)........................... 5
In Re Winship, 99 S. Ct. 1073 (1978)............................ 22
Jackson v. Virginia, 99 S. Ct. 2781 (1978)............ 7,22
Jchnscn v. LanJo, 120 S. Ct. 522 (1999)........ 17
Liparota v. U.S., 105 S. Ct. 2084. (1985) .' 22
Maxwell v. Sheppard, 86 S. Ct. 1507 (19*66) 11
Namet v. U.S., 83 S. Ct. 1151 (1963).........*.... 21
Roapilla v. Beazd, 125 S. Ct. 2456 (2005) , 19
Skinner v. State, 118 S. Ct. 1526 (1998) 15
Snyder v. Ccnrnoiwealth of Mass., 54 S. Ct. 330 (1934)........... 11
Strickland v. Washington, 104 S. Ct. 2052 (1984).. 12,17,19,20
MdJEkAL REPORTER
Johnson v. Lanb, 179 F.3d 352 ( .03x1999) 17
Rogers v. Israel, 746F.2d«1288 (___ Cir 1984). 19
Romnel v. Estelle, 590 F.2d 103 (5th Cir 1979). 17
Washington v. Strickland, 693 F.2d 1243 (5th Cir 1982) 16
Wiggins v. Procunier, 753 F.2d 1318 (5th Cir 1985). * 5
fflSS&S STATUTES
Texas Penal Code § 4.31(c). 14
Texas Penal Code § 9.31(c)(l)(2)...... ... 6,8
Texas Penal Code § 22.01 5,23
Texas Penal Code § 22.01(b)(1)....... 5
Texas Penal Code § 38.03(a).... 8
Texas Rules Of .Appellate Procedure, Rule 66.3 23
Texas Rules Of Appeallate Procedure, Rule 63.1 1
IV
SOimigESTE^.'REPORTER , 5BBEB OF AttTHORITIES PAGE #
Aguilar y. State, 682 S.W.2tf 556 (Tx.Cr.App. 1985).... 13
Barbernell Vi State, 257 S.W.3d'248-(Tx.App. 2008)............ 22
Bell v. State,, 693 S.W.2d 434 (Tx.Cr.App. 1985) 14
Bermudez v. State, ,§33, S.W.2d 805 (Tx.Cr.App. 1976) 22
Eignall v. State, S87' S.W. 2d 21 (Tx.Cr*. App. 1984) .;..... 3,14
Emery'v. State, 881 S.W.2<5 702 (Tx.Cr.App-. 1994)i;.;-....'.'.'•.'-...• 7
Ex Parte Barfield,' 697 S.W.2d «307 (Tx.Cr.App. 1985)..........•-. 7
Ex Parte Harris, 596 S.W.2d 293 (Tx.Cr.App. 1980)............. 12
ExParte Seatch,'5e0S.W.2d. 593' (Tx.Cr.App. 1979) 22
Ex Parte Welbom, 785 S.W.2d 391 (Tx.Cr.App. 1990)............ 19
Haitptoh v. State, 66 S.W.3d 430 (Tx.App.-Houston [1st Distil
2001) 10
Jiminez v.' State, 953 S.W.-2d 293' (Tx.App.-Austin 1997)........ 10,11,15,20
Jones v. State, 586 S.W.2d 542 (TktCr.App.. 1979).......... *......... 13
Jones v. State, 984 S.W.2d 254 (Tx.Cr.App. 1998).............. 9,14
Kerns v. State, 550 S.W.2G 91 (Tx.Cr.App. 1977) 23
Lofton v. State, 6" S.W.3d 796 (Tx.Cr.App. 2001) 9,10,11,13,14,
15,20
Lofton v. State, 45 S.W.3d 649 (Tx.Cr.App^ 2001)...... 9,10,14
Kathis v. State, 67 S.W.3d 918 (Tx.Cr.App. 2002) 10,13•
Mitchell v. State, 807 S.W.2d 740 (Tx.Cr.App. 1991) , 10,15
Nethery v. State, 692 S.W.2d 686 (Tx.Cr.App. 1985) 9
Ortiz y. Jones, 917 S.w;2d 770 (Tx.Cr.App. 1996) 7
Preston v. State, 700 S ,W.2d 227 (Tx.Cr.App. 1985) 13
PrudhcfflG v. State, 989 S.W.2d 852 (Tx.App.-Kcustcn [14th Diet]
1999) ...........* .i.v........;.................... 22
Reed v. State, 703 S.W.2d 380 (Tx.Cr.App. 1986).. 9
Rickene v. State, 165 'S.K.33 675 (Tx.Cr.App. 2005) 13
Rousseau v. State, 855 S.W.2d 666 (Tx.Cr.App. 1993)..... 13,14
Royster v. State, 622 S.W.2d 442 (Tx.Cr.App. 1981)............ 13
Ruth v. State, 552 S.W.2d 517 (Tx.Cr.App. 1975) 23
Saunders v. State, 91.3 S.W.2d 564 (Tx.App.-Corpus Christi 1994) 10,11,15,20
Skinner v. State, 956 S.W.2d 532 (Tx.Cr.App. 1997)............ 15
Smith v. State, 676 S.W.2d 584 (Tx.Cr.App. 1984).'............. 9
Sutton v. State, 548 S.W.2d 697 (Tx.Cr.App. 1977). 13
Cause No.
IN THE
COURT' OF CRIMINAL APPEALS
OF TEXAS
JAMES EARL PILAND §
Petitioner , i IN THE 4th
VS. =••'.:§ JUDICIAL DISTRICT COURT
THE STATE OF TEXAS , .OF RUSK COUNTY, TEXAS
Respondent §
PETITION Km DISCRETIONARY REVIEW
TO THE HONORABLE JUDGE(s) OF SAID COURT:
COMES NOW, James Earl Piland, Petitioner, pro-se in the above styled and
raadbered cause, and respectfully files this Petition for Discretionary Review
pursuant to Rule 68.1, T.R.A.P. The Petitioner would show the Honorable
Court the following:
t* STATEMENT OF THE CASE
On the evening of 21 April, 2003, the Petitioner and his wife discovered
that their son and his friend had been stealing money from them out of their
bedroom. So to curtail any further thefts, the Petitioner woke his son,
Tyler, to help him put a door on his bedroom. During this time, a heated
argument began, leading to the Petitioner telling his wife to call the police.
j
In the meantime the Petitioner went into a nearby woods in order to remove
himself from further altercations, and to calm down.
It had already grown dark outside, end the Petitioner was barefoot. After
i
a short time the Petitioner heard several voices calling his name. He heard
a noise and a bright light was shined into his face, blinding him. The Peti-
r
tioner believed it was his son and Wesley Watkin, his son's friend. He turned
-iiv.
to walk further into the woods, but stepped on something sharp, and fell
down. The bright light was again shined into the Petitioner's eyes, and
a voice ordered him to "get up and come over here." The Petitioner stood
up and tried to see who it was, because there were several people calling
him. The Petitioner's hands were in front of his eyes, trying to block the
light. He was told to put his hands down, and when he did, he was hit with
either a gun or flashlight. These were the only things in the person's hands
that had hit him. At the same time, someone else began spraying something
in the Petitioner's face and eyes. The Petitioner's vision went black, and
he fell against his boat. As the Petitioner walked towards his house, the
officer continued hitting him in the face, while the other officer kept spray
ing mace everywhere. The Petitioner's son saw the officer strike the Peti
tioner with his gun or flashlight and jumped on his back. The Petitioner
ran into his house for safety, and to clean mace out of his eyes and mouth.
E.M.S. had to be called, as the officer had sprayed the Petitioner's 11 year
old daughter in the face, and needed her eyes flushed out. At no time were
handcuffs put on Petitioner nor did the officers announce who they were.
Two other officers were called in to arrest Petitioner. Officer Overtop
testified that Petitioner offered no resistance when Petitioner was hand
cuffed. The other officer from another city, took me out of the house, then
yanked the cuffs up behind Petitioner's back, forcing Petitioner to bend
over at the waist, hurting Petitioner's wrists, hands, and shoulders. This
also was recorded on the 2nd video, taut was not shown to the jury.
Officer Loden claimed I rushed at him out of the woods, but changed his
testimony when cross-examined to "a fast pace." He would also commit perjury*
i
stating he never struck the Petitioner at all. Then later admit stricking
the Petitioner on the side of the face "3 or 4 tiroes." (R.R. 4 at 151,153).
-2-
Note, testimony from eyewitnesses show he ailsovfstruck the Petitioner with
an object between his eyes Loden then wrote up multiple charges against the
Petitioner in attempts to cover his felonious assault on the Petitioner that
Loden knew was witnessed by others. The Petitioner was then taken to jail
and charged with "assault against a public servants" During pre-trial hearing
the trial judge asked the defense attorney if she was prepared to go to trial.
She stated "no" because she and the prosecutor were working on a plea deal
due to the multiple charges. But the judge ignored her and set the case
for trial the next day, despite their being multiple other cases on the Docket
before the Petitioner's case.
The Petitioner was tried and convicted by a jury. Punishment was assessed
at sixteen (16) years confinement in the TDCJ-CID. A Motion For Appeal was
filed at trial.
On 17 December, 2014, the Sixth Court, of Appeals of Texas at Texarkana
affirmed the conviction. On 1/22/2015 the Texas Court of Criminal Appelas
granted the Petitioner's pro-se Motion For Extension of Time to file Motion
for Petition For Discretionary Review. The time extension was until March
17, 2015.
This timely filed Petition For Discretionary Review follows.
MO ORAL ARGDMERT IS REQUESTED
U. STATEMENT OF PROCEDURAL MSTORYo
1. The Petitioner appeared before t!he Fourth Judicial District Court of
Rusk County, Texas, on the charge of assault of a public servant on 2-18-2014.
The jury found the Petitioner guilty, and assessed punishment at (16) sixteen
years confinement in the Texas Department of Criminal Justice-Correctionar'
Institutional Division.
2. A Motion for Appeal was requested at trial. Defense Counsel filed a
-3--
Direct Appeal in the 6th Appellate District Court of Appeals of Texas at
Texarkana. The Appellate Court affirmed the Petitioner's sentence on 17
December, 2014. No Motion for Rehearing 753 F.2d 1318 (5th Cir. 1985); Hughes v. Bewa, 101 S. Ct. 173
(1988); Haines v. Sterner, 92 S. Ct. 594 (1972).
NOTE: The Petitioner does not have access to the Recorder's Record,:and
has had to rely on the Briefs from Appellant Counsel to refer to page numbers
in record.
. TV. ARGUMENTS AtP AUTHORITIES
ISSUE 1: Was the evidence factually and legally sufficient to support the
conviction?
In the case at bar, the charge instructs the jury to determine guilt based
on whether the Petitioner "did...cause bodily injury to Erad Loden, by striking
the said Brad Loden with the .Defendant's fists while the said Brad Loden
was trying to arrest the defendant, and the said Brad Loden was then and
there a public servant, to wit: a police officer...acting,in lawful discharge
of his official duty, and the defendant knew that the said. Brad Loden was
a public servant because the said Brad Loden was, wearing a distinctive uniform
and displaying his badge..."
First, note the charge read to the jury does not conform to Texas Penal
Code § 22.01(a), 22.01(b)(1), in that it has no reference to "intentionally,
knowingly, or recklessly" listed in the charge.
The Court will note the incident took place in the dark. Loden nor Officer
wllson identified themselves, nor could ANY distinctive uniform or. badge
be seen as their uniforms were dark blue. Especially with a bright light
shined into the Petitioner's face, nor with the spraying of mace into his
eyes by officer Wilson. ,
Officer Loden states the Petitioner swung with his fist hitting his arm.
-5-.
The Honorable Court must admit this act likely occurred NOT to assault Officer
loden, but to get the light out of his blinded eyes or to stop the spraying
of mace in thorn. (R.R; 4, pg. 19, 35, 38, 64). The Petitioner supposedly
fled, and when someone caught hold.of his ^lirt, he knocked the arm of his,
captor and fled into .: his house. (R.R. 4,. pg. 19-21, 35, 68). Others, saw
Loden hitting Petitioner at the time. Witnesses testified they saw Officer
Lcden hit the Petitioner between the eyes with his gun or flashlight. Officer
Lcden denies this. But then, he also denied hitting the Petitioner at all,
(R.R. at 151); but. then admits hitting him "3. or 4. times on the side, of the
face." Yet the Petitioner had an injury between his eyes on the upper part
of his nose - the place where, the witnesses testified they. saw. him hit the
Petitioner with an object in his hand. So the question before this Honorable
Court is, seeing the witnesses did not see the "3 or 4 blows to the Peti-?
tioner's face, was, by Office Loden's own testimony, the Petitioner beat
on by Loden in the woods as alleged by the Petitioner?
Pursuant to Texas Penal Cede § 9.31(c) (Vernon 2003),
"(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer
(or person acting at his direction) uses or attempts to use
greater force than necessary to make the arrest or search;
and
(2) when and to the degree the actor reasonably believes the
force is immediately necessary to protect himself against
the peace officer's (or other persons) use or attempted use
of greater force than necessary."
It' should also be noted, when arrested by the two other officer's, the
Petitioner had no handcuffs on either wrist, as testified to by Officer Wilson
and Lcden. (R.R. 4 at 19). But defense counsel failed to call either of
those officers to testify on this crucial issue. A video was taken of this
-o-
arrest, but Was not shown.
The Petitioner states he did not know police were there until he'd been
sprayed in the eyes with mace. Then he swung his arm to stop the pain and
ran to his house to rinse out his eyes and get away from whoever had hurt
him.
"A critical inquiry is whether, after so viewing the evidence, any rational
trier-of-fact could have found the essential elements of the crime beyond
a reasonable doubt." Emery v. State, 881 S.W.2d 702, 705 (Tx.Cr.App. 1994).
But there is a problem here because the Jury Charge was insufficient. First,
the "mens rea" is missing which,is in feet ah essential element of the charge.
"In evaluating the legal sufficiency of the evidence, we must view the
evidence in the light most favorable to the verdict and determine whether
any rational trier-df-fact could have found the essential elements of the
offense beyond a reasonable doubt." Jackson v. Virginia, 99 S. Ct. 2781(1979).
"Where appellate attacks legal sufficiency of the evidence, appellate
Court must view only that evidence vfoich supports the verdict, however, where
appellant's challenge is to factual sufficiency of evidence appellate court
must consider all evidence. Court of Appeals must weigh and eo&pare all
evidence in the record." Ortiz v. Jones, 917 S.W.2d 770 (Tx.Cr.App. 1956).
"Only exception to sufficiency of evidence is if you show there was no
evidence on crucial element of the offense with which you were convicted."
Ea Parte Barfieia, 697 S.W.2d 307 (Tx.Cr.App. 1985).
No "mens rea" was ever shown in the trial.
Due process was denied to the Petitioner, and as such, he is entitled
to a reversal of his conviction, and be afforded a new trial.
ISSUE 2. Is the indictment so flawed that the jury convicted the Defendant
on the wrong? offense under the Texas Penal Codes?
^7-
During Officer Loden's testimony, ;he states the Petitioner resisted when
the first handcuff was locked on his wrist. He then testified he told the
Petitioner if he continued struggling he would spray him with C.J. (roace).
Ee stated the Petitioner was net under arrest, so why come with a drawn weapon,
handcuff the Petitioner, or even use mace en him? He got struck on his arm
after macing the Petitioner. Probable reason was to get released so Petitioner
could rinse the.mace from his burning eyes. So, at best, the only true charge
that could possibly be put upon the Petitioner was "resisting arrest", and
not assaults. Otherwise, what cause did Officer Loden have for adraittingly
striking the Petitioner "3 or 4 times" in the face. In all actuallity, the
Petitioner would' have been justified under § 9.31(c) Tx.Pen.Code in striking
back in self defense. Especially when witnesses saw Officer Lcden strike
him in the face, with an object in his hand. The only objects being his flash--
light and gun, as was witnessed by the witnesses. Also by Loden's own testi-
money. (R.R. 4 at 151).
If an arrest1 was being executed, then a charge of resisting arrest under
Texas Penal Code § 38.03(a) would be appropriate.
"A person resists arrest by intentionally preventing or obstruct[ing]
a person he knows is a peace officer or a person acting in a peace
officer's presence and at his direction from affecting an arrest,
search, or transportation of an actor by using force against the
peace officer or another."
But, in the case at bar, no Motion was filed by defense counsel to have
the 'Court instruct the jury on the lesser-included offense of resisting ar
rest.
In order tc be entitled to an instruction en the lesser-included offense
of resisting arrest, there must be some evidence to permit a jury rationally
tc find that appellant is guilty only of the lesser, and not of the greater.
-8-
Therefore, in the instant case, there must be some evidence that Appellant
intentionally prevented or obstructed his arrest by using force against offi
cer [Lcden], •and that Appellant did not 'intentionally, knowingly, or reck
lessly cause bodily injury to [Loden]." Lofton v. State, 45 S.W.3d 649 (Tx.
CriiiwApp. 2001).
"Court of Appeals analy2es lesser-included offenses by determining whether
there is any evidence in the record>fran any source to indicate that if defen
dant was, guilty, he was guilty only of the lesser offense." Lofton v. State,
Id., 6 S.W.3d at 797. "Anything more than a scintilla of evidence is suffi
cient to entitled a•defendant'to a lesser charge." Lofton, supra, at 799;
Bignall v. State, 887 S.W.2d 21, 23 (Tx.Crim.App. 1994). "Whether there
is evidence within or without the defendant's testimony, which raises the
lesser offense controls the issue of whether an instruction en the lesser
included offense should be given." Jones v. State, 984 S.W.2d 254, 257 (Tx.
Crim-App. 1998).
"Although it is clear that the issue of self-defense may be raised by
evidence'.other than the defendant's testimony, (See Smith v. State, 676 S.W.2d
584 (Tx.Crim.App. 1984), it is equally clear that some evidence must show
that defendant reasonably believed that force was necessary to protect him
self against unlawful force-of'another." Nethery v. State, 692 S.W.2d 686,704
(Tx.Crim.App. 1985); Seed v. Stat®, 703 S.W.2d 380, 382 (Tx.Crim.App. _).
That evidence was provided by witnesses seeing Lcden strike an unarmed
Petitioner between the eyes with an object, AND by loden's own testimony
of spraying the Petitioner with gas and further testimony of him striking
the Petitioner 3 or 4 times in the face.
"For a charge on a lesser-included offense to be given, there must be
some evidence from which a jury could rationally acquit the defendant of
-9-
the lesser included offense; the evidence must establish the lesser-included
offense as a valid alternative to the charged offense." Mathis v. State, 67
S.W.3d 918, 920 (Tx.Crim.App. 2002).
"Either the defendant cr the State is entitled to an instruction on every
issue raised by the evidence, whether produced by the State or the defendant,
and whether it is weak, strong, impeached, or contradicted; it is then the
jury's duty to determine whether the evidence is credible arx3 supports the
lesser-included,offense." Hampton v. State, 66 S.W.3d 430 (Tx.App.-Houston
[1st Dist] 2001). "The Court of Appeals held that because the evidence in
this case was subject to two possible interpretations - one interpretation
supporting a conviction of assault and the other for resisting' arrest - then
appellant was entitled to an instruction on'the lesser-included offense."
Lofton, supra, 45 S.W.Sd at 653.
"Reversal is required if the error resulted in some harm to the accused,
•some' meaning" 'any'*.' Jimlnaz v. State, 953 S.W.2d 293, 299 (Tx.App.-Austin
1997, pet. ref'd). "If the absence of the lesser-included offense instruction
left the jury only with the options either to convict the defendant of the
charged offense or tc acquit him ' fas the case at bar], a finding of harm
is essentially automatic because the jury was denied the opportunity to con
vict the defendant of the lesser offense." Iofton, 6 S.W.Sd at 800; see
also: Hi&chell v. State, 807 S.W.2d 740, 742 (Tx.Crim.App. 1991); Jiminez,
supra, at 299 (citing Saunder v. State, 913 S.W.2d 564, 571 (Tx.App.-Corpus
Christi, 1994). "Harm is presumed because of the possibility that the jury,
believing the defendant to have coffaritted seme crime but given the option
only to convict him of the greater offense, may have chcsen to find him guilty
of that, greater offense, rather than tc acquit him altogether, even though
it had a reasonable doubt that he really committed the greater offense."
-10-
See Saunders, supra, at 571; Jindnez, supra, at 300. "we cannot say that
the district court's refusal to instruct the jury on the lesser-included
offense of resisting arrest did not result in some harm to appellant." Lofton,
6 S.W.3d at 800.
r
Failure to properly instruct the jury on "mens rea" and present a proper
indictment, including the lesser-included offense of resisting arrest violated
.due process of law. A reversal and a new trial is warranted due to a VOID
indictment. (Rule 60(b), F.R.A.P.)
ISSUE 3: Did the Trial Judge abuse his discretion in his failure to allow
both the prosecutor and defense counsel to properly prepare for
trial, thus denying the Petitioner a fair trial with effective
Counsel?
"Broadly stated, the accused is entitled to a trial on the facts, in accor
dance with the law and the evidence in the case, with an opportunity to defend
before an unbiased tribunal, and free from any extraneous influence that
might be to his or her prejudice." Maxwell v. Sheppard, 86 S. Ct. 1507 (1966).
"State is free to regulate court procedure in accordance with its own
conception of policy and fairness without infringing on 14th Amendment, unless
some fundamental principle of justice is violated." Snyder v. Commonwealth of
Massachusetts, 54 S. Ct. 330 (1934).
In the instant case at bar, the Trial Judge asked the Prosecutor and Defense
Counsel if they were prepared to go to trial. The Prosecutor stated they
were ready. The Defense Counsel stated they were not ready, as the prosecutor
and she had been working out a plea deal, due to the multiple other charges
connected with this case. (Officer Loden had also brought charges of public
intoxication (Petitioner was on his own property), resisting arrest (lesser-
included offense), threat of retaliation, aggravated assault, and assault
-11-
of public servant (for supposedly tearing his shirt).(BOTE: If Petitioner
tore his shirt, why was it not testified to at trial, or shown as evidence?)).
The Trial Judge then ordered the case set for Docket the very next day.
By his actions, the Petitioner went to trial with an attorney who admittedly
was not prepared to defend her client.
Thus> the Petitioner was denied effective assitance at trial by the Trial
Judge, which denied him due process and equal protection. "That " a ' person
who happens to be a lawyer is present at trial alongside the accused, however,
is not enough to satisfy the constitutional command." Strickland v. Washing
ton, 104 S. Ct. 2052 (1984).
"Actual, or constructive denial of assistance of counsel altogether is
legally presumed to result in prejudid^;."4? Id., at 2053.
"Right to effective assistance of counsel is recognized not fee it& own
sake, but because of the effect it has on the ability to the accused to receiv
a fair trial." U.S.C.A. 6; Creole v. U.S., 104 S. Ct. 2039 (1984).
"Mere pro Forma appearance of counsel does not amount to the assistance
of counsel and due process of law guaranteed by federal constitution and
it does not afford the right of being heard by...counsel guaranteed by state
constitution. Such unconstitutional provisions require that counsel render
reasonably effective assistance." Ex Parte Harris, 596 S.W.2d 293 (Tx.Crim.
App. 1980).
Thus, by the Trial Judge's refusal to allow defense counsel more time
to prepare her client's case for trial, Petitioner was denied effective assis
tance of counsel. Mflffl*' In the Appellate Brief during the direct appeal,
the defense counsel wholeheartedly admits she was ineffective.
The conviction should be reversed, and the Petitioner be afforded a new
trial in a different court, as the trial judge has shown bias against the
-12-
Petitioner or his attorney by refusing a continuance, violating due process
and effective assistance of counsel to the Petitioner.
ISSUE 4: Was defense counsel ineffective in failing to file a Motion for
Jury Instruction on Lesser-Included Offense of Resisting Arrest?
"Under certain, limited circumstances, a criminal defendant will be en
titled to a jury instruction on a lesser-included offense of the offense
charged." Mathls v. State, supra, at 925 (Tx.Crim.App. 2002).
"The applicable test is referred to as the Royster-Rousseau test, or some
times, as the Royster-Aguilar test." (See Royster v. State, 622 , S.W*2d
442> 444 (Tx.Crim.App. 1981); Aquilar v. State, 682 S.W.2d 556, 558 (Tx.Crim.
App. 1985); Rousseau v. State, 855 S.W.2d 666, 672 {Tx.Crlm.App* 1993).
"The test has two steps: (1) first, determine whether the offense is a
lesser-included offense of the offense charged; and (2) second, evaluate
the evidence to determine whether there is some evidence that would permit
a jury rationally to find the defendant is guilty only of the lesser offense."
Mathls, supra, at 925; See also: Rickens v. State, 165 S.W.3d 675, 679 (Tx.
CrinuApp. 2005).
"Case law from the Court of Appeals indicates resisting arrest is a lesser-
included offense of assault on a public servant." See: Preston v. State, 700
S.W.2d 227, 230 (Tx.Crim.App. 1985); Sutton v. State, 548 S.W.2d 697, 699
(Tx.Crim.App. 1977)(stating that "resisting arrest is a lesser-included offense
of assault on a public servant."). Lofton v. State, 6 S.W.3d 796 (Tx.App.-
Austin 1999). "...relevant test is whether the lesser offense could be pro
ved by the same facts necessary to establish the offense charged*" Picken, .
supra, at 679; Jones v. State, 586 S.W.2d 542, 545 (Tx.Crim.App. 1979).
Now, the Officer, Loden, stated they were attempting to handcuff the Peti*»
ticner. Another Officer, Wilson, sprayed Petitioner in the face with mace.
-13-
The Petitioner "fled" and he tried to grab the Petitioner by the back of
his shirt when his arm was struck by the Petitioner. Pursuant to Tx.Pen.
Code, § 4.31(c), the Petitioner was justified in his actions, as he was being
maced, beaten, and felt threatened by the excessive force used against him.
Is it not rather suprising after Loden had struck Petitioner "3 or 4 times
on the side of the face" and between the eyes with an unknown object, that
the Petitioner only struck Loden's arm? After all, Loden was assaulting
the Petitioner, as Loden testified to (R.R. 4 at 151) and as other eyewitnesses
testified to.
"In order to be entitled to an instruction on the lesser offense of resis
ting arrest, there must be some evidence to permit a jury rationally to
find the appellant is guilty only of the lesser, and not of the greater.
Therefore, in the instant case, there must be some evidence that appellant
intentionally prevented or obstructed his arrest by using force against Officer
[Loden], and the appellant did not 'intentionally, knowingly, or recklessly
cause bodily injury to [Loden].'" Lofton, 45 S.W.3d 649.
"Court of appeals analyzes lesser included offenses by determining whether
there is any evidence in the record from any source to indicate that if defen
dant was guilty, he was guilty only of the lesser offense," Lofton, 6 S.W.3d
at 797. "Anything more than a scintilla of evidence is sufficient to entitle
a defendant to a lesser charge." Id., at 799; Biqnall, supra, at 23. "Whether
there is evidence, with or without the defendant's testimony, which raises
the lesser offense controls the issue of whether an instruction on the lesser
included offense should be given." Jones, supra, at 257.
"The evidence may be proffered by the State or the defense; the evidence
may be strong or weak, unimpeached or contradicted."/ (See Rousseau, supra, at
672; Bell v. State, 693 S.W.2d 434, 442 (Tx.Crim.App. 1985). "So long as
-14-
there is some evidence which Is:'directly germane' to a lesser included offense
for the fact finder to consider, then an instruction on the lesser included
offense ie warranted." See; Skinner v. State, 956 S.W.2d 532, 543 (Tx.Crta.
App. 1997); cert denied, 118 S. Ct. 1526 (1998).
[R]eversa1 is required if the error resulted in some harm to the accused,
•sob®' meaning 'any'." Jlminez, supra, at 299 (Tex.App.-Austin 199?, pet.
ref*d). "If the absence ©f the lesser included offense instruction left
the jury only with the options either to convict the defendant of the charged
offense or to acquit him [as in the instant case at bar], a finding of harm
i© essentially automatic because the jury was denied the opportunity to con
vict the defendant of the lesser offense." Lofton, 6 S.W.3d at 800; see
also: Mitchell, supra, at 742.(Tx.Crim.App. 1991); Jimlnes, supra, at 299 (ci
ting Saunders v. State, 913 S.W.2d 564, 571 (Tx.App.-Corpus Christi 1994).
"Harm is presumed because ©f the possibility that the jury, believing
the defendant to have ccasmitted seme crime but given the option only to con
vict him of the greater offense, may have chosen to find him guilty of that
greater offense, rather than to acquit him altogether, even though it had
a reasonable doubt that he really committed the greater offense." See: SuaajT-'
decs, supra, at 571; Jiminez, supra, at 300. We cannot say that the district
court's refusal to instruct the jury on the lesser included offense of resis
ting arrest did not result in some harm to appellant." Lofton, 6 S.W.Sd 800 .
The failure to give the jury a jury instruction on the lesser-included off#:
ense, despite having all the essential elements that supported such an instruc
tion was ineffectiveness of trial counsel for her failure t© investigate
and question eyewitnesses. Likely this was caused by the Judged failure
to postpone the trial for the trial counsel to make the required pre-trial
investigation.
-IS-
As such, due process and effective assistance of counsel was denied by
defense counsel and the trial judge, and a reversal of this conviction and
anew trial is warranted in this case.
ISSUE 5: Was Defense Counsel ineffective for her failure to investigate
and bring to trial the Petitioner's version of the facts? (See Appel
late Brief for Direct Appeal, pgs. 12-14).
As can be seen by para. I Statement of the Case, the case the jury heard,
and para. I are quite different. Yet witnesses that testified for the defense
testified what is. shown in para. I. Yet defense counsel did not have the
Petitioner testify, nor submit a Motion for Jury Instruction on the Lesser-
Included Offense of Resisting Arrest. She failed to make an adequate inves
tigation and believe her client's version Of the facts of the case, which
was wholely supported by eyewitnesses.
"Although the fate of a criminal defendant is determined at trial, the
cause of that trial, the cause of that trial can be decisively affected by
actions of defense counsel in preparing the case." Washington v. Strickland,
693 F.2d 1243 (5th Cir 1982).
The Petitioner alleges failure to render an adequate investigation into
the case, and to believe the Petitioner and eyewitness accounts of the facts
of the case. This can be shown by the fact that even prior to trial a plea
deal was being negotiated to settle other charges being filed by Officer
Loden, the person who in fact committed aggravated assault on the Petitioner.
Pictures and statements supported the Petitioner's version of the facts,
yet not even a Motion for the jury instruction on the lesser offense was
filed.
"When a defendant alleges that his counsel's failure to investigate preven
ted counsel from making an informed tactical choice, he must show that know-
rl6-
.ledge of the investigated evidence would have altered his counsel's decision,
and that the basis underlying his counsel's tactical choice to pursue or
forgo a particular course would have been invalidated, in order to satisfy
prejudice prong of ineffective assistance of counsel claim." Johnson v. Lamb,
179 F.3d 352, cert.denied, 120 S. Ct. 522 (1999).
As has been testified to at trial by Rebecca Piland, Wesley Watkins, and
Tyler Chiasson, all the actions committed by the Petitioner were in fact
"self-defense maneuvers" to protect himself from being beaten upon by Lcden.
(R.R. 4 at. 92-94, 106, 120-122, 125, 129-133, 142-147) Had defense counsel
investigated . into the Petitioner's version of the facts, she would have not
only, filed for Instruction on Lesser-Included offense, but also sought crimi
nal charges against Lcden for police brutality. Instead the defense counsel
was plea bargaining with the prosecutor on dropping the other charges trumped
up by Loden and Wilson in order to cover their felonious acts.
"If there is only one plausible line of defense, the court concluded,
counsel must conduct a 'reasonable substantial investigation* into that line
of defense, since there can be no stratigic choice that renders such an inves
tigation unnecessary. The same duty, exists if counsel relies at trial on
only one line of defense, although others are available. It must include
'an independent examination of the facts, circumstances, pleadings, and laws
involved.'" Strickland, supra, at 2061 (quoting Rommel v. Estelle, 590 F.2d
103, 104 (5th Cir 1979).
It should be noted by the Honorable Court that two incidents occurred
just prior to the Voir Dire. First* by defense counsel's own admissions,
"Jury selection in this case was on a Monday morning, 18 February, 2014."
Attorney Biggs filed a Motion for continuance early that morning and argued
it before Voir Dire began. Attorney Biggs informed the Court she was not
rl7-
ready for trial at -that time. R.R. 3 at 7. She informed the Court that
Appellant had been arrested the previous month for a new felony charge and
that she believed the respective parties would be able to settle the cases
after the new case was filed in. Id. She informed the Court that Asst.
D.A. Wavrosa and she had spoken the previous Friday afternoon at about 3
p.m., and until that time, she had been unaware the State intended to take
Mr. Piland's assault on public servant case to trial on Monday the 18th.
Id. at 8w She argued that it would be efficiency and judicial economy (on
the part of the. court) and in the best interest of Mr. Piland to wait on
a possible trial in the assault on public servant case until the new (and
other) cases was filed in. Id. She pointed out that several other attorneys
(including the writer) had trial cases that were set before hers, and thus
she was baffled as to why Appellant's case was going to trial this day when
other, older1 cases were listed on the docket before Appellant's case. Id.
The Court denied her Motion. Id. at 9." (Brief for Appellant for Direct
Appeal, App. A, pgs. 6-7).
The second issue was that just before Voir Dire the defense attorney was
notified, when the prosecuting attorney asked the jury if any of them could
not, in good conscience, sentence a person to twenty years in prison. Having
been led to believe her client was facing a 3rd degree felony with no enhance
ments, defense counsel objected to this question. Both attorneys were called
to the bench, and in conference during Voir Dire the prosecuting attorney
notified defense counsel of his intention to seek enhancement. He stated
before the trial judge that a copy of the enhancement paragraph had been
faxed to defense counsel's office at 8 a.m. that morning. Voir Dire began
at 8:30 a.m. The trial judge allowed it. '<
Thus, in all honesty, the Petitioner, states his defense counsel's ineffec-
-18-
tiveness was due to misrepresentations by the Asst. District Attorney, and
the bias shown 'by the trial judge; Judge Cossett. In fact, the trial was
so rushed that even the indictasnt before the Court was without 'mens rea"
arid added last minute enhancements. (R.R. 4 at 164)..
"Criminal defense counsel must have firm command of facts of case as well
as governing law before he can render reasonably effective assistance of
counsel." Ex Parte Welborn, 785 S.W.2d 391 (Tx.Crim.App. 1990).
Defense Counsel had not even read the entire indictment to see if it met
the irdnimum standards of the law. Thus/ she was ineffective for failure
to object to the defective indictment even before this case went to trial.
The ' State would have been forced to either dismiss the indictment and start
over, or attempt to amend and interleniate the indictment, giving defense
counsel added time to adjust to the added enhancement paragraph and investi
gate further into the case. "It is the duty of the lawyer to conduct a prompt
investigation • of the circumstances of the case and to explore all avenues
leading to facts relevant to the merits of the case and the penalty in the
event of conviction. The investigation should always include efforts to
secure information in the possession-of the prosecution aixS .law enforcement
authorities. The duty to investigate exists regardless of the accused's
admissions or statements to the lawyer of facts constituting guilt or the
accused's desire to plead guilty." Rcaapdlla v. Beard, 125 S. Ct. 2456 (2005).
"When determining whether defendant received effective assistance of counsel
in violation of the 6th Amendment, benchmark must be whether counsel's conduct
so undermined proper functioning of adversarial process that trial cannot
be relied on as having produced a just result." Rogers v. Israel, 746 F.2d
1288 ( ,Cir 1984); Strickland, supra, at 2064.
ISSUE 6; Was defense counsel ineffective when she, herself, admits she was
ineffective at trial due to Trial Judge's actions?
• -19-
"First defendant must show that counsel's performance was deficient, re
quiring showing that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed defendant by the Sixth Amendment,.."
Id.> at 2052. ,
The Petitioner , has shown that defense counsel failed to even read the
indictment against her client, which had failed to give mandatory "mans rea"
in the charge brought against her client. Then she failed to Motion for
Jury Instruction oil the Lesser-Included Offense of Resisting Arrest. The
Jury would ,most probably had found the Petitioner guilty of only the lesser
offense when they heard the testimony from defense witnesses.
"...second, defendant must show that deficient performance prejudiced
the ,defense by shewing the counsel•s errors were so serious as to deprive
the defendant of a fair trial; a trial whose result is unreliable." Id.
"Harm is presumed, because of the possibility that the jury, believing
the defendant to have committed some crime but given the option only to convict
him of the greater offense, may have chosen to find him guilty of that*greater
offense, rather than to acquit him altogether, even though it had a reasonable
doubt that he really c<»smitted the greater offense." See Saunders, supra, at
571' Jiminez, supra, at 300.. "We cannot say that the [defense attorney's
failure to request the trial judge] to instruct on the lesser included offense
of resisting arrest did not result in some harm to appellant." Lofton, 6 S.W.
3d at 800.
"Counsel, however, can also deprive a defendant of the right to effec
tive assistance of counsel simply by failing to render 'adequate legal assis
tance'" Strickland, supra, at 2064; Cuylcr v. Sullivan, 100 S. Ct. at 1716,
1719.
The Petitioner has met both prongs of the Strickland standard as set out
-20-