No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS. LARRY JOHNSON, Appellant. THE STATE OF TEXAS, Appellee

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1 No CR ORAL ARGUMENT REQUESTED IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS LARRY JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee ON APPEAL IN CAUSE NO. F H FROM CRIMINAL DISTRICT COURT NO. ONE OF DALLAS COUNTY, TEXAS BEFORE THE HONORABLE ROBERT D. BURNS, III, JUDGE BRIEF OF APPELLANT JOHN H. HAGLER State Bar No P.O. Box Dallas, Texas Telephone: (214) Facsimile: (214) ATTORNEY FOR APPELLANT

2 IDENTITY OF PARTIES AND COUNSEL Because this case is an appeal from a criminal conviction, the only parties are: (1) the Appellant, Larry Johnson, by and through his attorney of record on appeal, John H. Hagler, P.O. Box 12243, Dallas, Texas ; (2) his trial attorney [at the plea hearing] Roberto Dueno, 1547 Waterside Court, Dallas, TX , and his trial attorney [at the adjudication hearing] Kenneth Weatherspoon, 325 North St. Paul St., Suite 2475, Dallas, TX 75201; and (3) the State of Texas, by and through Craig Watkins, the Criminal District Attorney of Dallas County, and Monique Ward and Justine Lord, Assistant Criminal District Attorneys, Frank Crowley Courts Building, 133 North Industrial Blvd., Dallas, Texas i

3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL... i INDEX OF AUTHORITIES... iii STATEMENT OF THE CASE ISSUES PRESENTED... 3 STATEMENT OF FACTS... 3 SUMMARY OF THE ARGUMENTS... 4 ARGUMENT... 4 APPELLANT S ISSUE NUMBER ONE... 4 THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO OFFER ANY EVIDENCE AND TESTIMONY, OTHER THAN THE APPELLANT S OWN TESTIMONY, IN MITIGATION OF PUNISHMENT. (RR1:11-14) APPELLANT S ISSUE NUMBER TWO THE APPELLANT DID NOT FREELY AND INTELLIGENTLY WAIVE HIS STATUTORY RIGHT TO TEN DAYS TO PREPARE FOR THE ADJUDICATION HEARING. (RR1: 11) PRAYER FOR RELIEF CERTIFICATE OF SERVICE ii

4 INDEX OF AUTHORITIES CASES: Anderson v. State 182 S.W.3d 914 (Tex.Crim.App. 2006) Andrews v. State 159 S.W.3d 98 (Tex.Crim.App. 2005) Bone v. State 77 S.W.3d 828 (Tex.Crim.App. 2002)... 9 Cain v. State 947 S.W.2d 262 (Tex.Crim.App. 1997) Cuyler v. Sullivan 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) Goffney v. State 843 S.W.2d 583 (Tex.Crim.App. 1992) Grammer v. State 294 S.W.3d 182 (Tex.Crim.App. 2009)... 8 Hernandez v. State 988 S.W.2d 770 (Tex.Crim.App. 1999)... 5 Marin v. State 851 S.W.2d 275 (Tex.Crim.App. 1993, overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997))... 12, 13, 14 Ortiz v. State 93 S.W.3d 79 (Tex.Crim.App. 2002) Pearson v. State 994 S.W.2d 176 (Tex.Crim.App. 1999)... 8 iii

5 INDEX OF AUTHORITIES (Continued) Rylander v. State 101 S.W.3d 107 (Tex.Crim.App. 2003) Saldano v. State 70 S.W. 3d 873 (Tex.Crim.App. 2002) Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)... 5 TEXAS CODE OF CRIMINAL PROCEDURE: TEX. CODE CRIM. PROC. ART (c) TEX. CODE CRIM. PROC. ART (e) TEX. CODE CRIM. PROC. ART , Section 5(b) TEXAS RULES OF APPELLATE PROCEDURE: TEX. R. APP. PROC. 44.2(b) iv

6 NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS LARRY JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee TO THE HONORABLE COURT OF APPEALS: Appellant, Larry Johnson, respectfully submits this brief in the above-styled and numbered cause. This is an appeal of a conviction for the offense of burglary of a building from Criminal District Court Number One of Dallas County, Texas, the Honorable Robert D. Burns, III, Judge Presiding. STATEMENT OF THE CASE In Cause No. F H (Dallas County) the Appellant was charged by affidavit and information with the offense of burglary of a building. (CR: 2-3) The offense was alleged to have been committed on 20 April (CR: 2) 1

7 On 10 May 2007 the Appellant waived his right to be tried by indictment and waived the right to be tried by a jury, and, pursuant to a written plea agreement, entered a plea of guilty to the offense as alleged in the information. (RR1: 6-7) Also, the Appellant s written judicial confession (S/E No. 1; CR: 6) was admitted into evidence. (RR1: 7) The trial court found that the evidence substantiated the Appellant s guilt but deferred the finding of guilt for three years and assessed a fine in the amount of $500. (RR1: 7) The State subsequently filed a motion to proceed with the adjudication of guilt. (CR: 19-20) On 25 November 2008 the adjudication hearing was conducted. The Appellant entered a plea of true to the allegations in the motion to proceed with the adjudication of guilt. (RR1: 10) Also, his written plea of true was admitted into evidence. (RR1: 10) The defense offered the testimony of the Appellant and both sides closed. (RR1: 18) The trial court granted the State s motion; proceeded with the adjudication of guilt; found the Appellant guilty of the offense charged; and assessed punishment at 210 days confinement in a state jail. (RR1: 19) Written notice of appeal was timely filed on 26 November (CR: 37) 2

8 ISSUES PRESENTED I. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO OFFER ANY EVIDENCE AND TESTIMONY, OTHER THAN THE APPELLANT S OWN TESTIMONY, IN MITIGATION OF PUNISHMENT. (RR1:11-14) II. THE APPELLANT DID NOT FREELY AND INTELLIGENTLY WAIVE HIS STATUTORY RIGHT TO TEN DAYS TO PREPARE FOR THE ADJUDICATION HEARING. (RR1: 11) STATEMENT OF FACTS Because the Appellant entered a plea of guilty to the offense charged in the information, the record does not contain the factual details of that offense. Also, the Appellant entered a plea of true to the allegation in the motion to proceed with the adjudication of guilt. However, the record does show that, while the Appellant was on community supervision, the State filed two prior motions to proceed with the adjudication of guilt, but they were withdrawn. (CR: 15-17; 21, 29-30) The record reflects that the Appellant was represented by court-appointed counsel who was appointed on the day prior to the adjudication hearing. (CR: 23) During the adjudication hearing, the Appellant briefly testified regarding his employment background, financial difficulties, and criminal history. A more detailed summary of the facts are set forth below. 3

9 SUMMARY OF THE ARGUMENTS The Appellant would urge that he was denied the effective assistance of counsel when his trial attorney failed to offer evidence and testimony, other than the Appellant s own testimony, in mitigation of punishment. If such mitigation testimony had been offered by the defense, a reasonable probability existed that the trial court would have placed the Appellant on community supervision or the Court would have assessed substantially less punishment. Secondly, the record reflects that the Appellant did not freely and intelligently waive his statutory right to have ten days to prepare for the adjudication hearing. The Appellant s trial counsel was appointed on the day prior to the adjudication hearing and the Appellant was harmed by the fact that his attorney had insufficient time to properly prepare for the hearing. ARGUMENTS APPELLANT S ISSUE NO. ONE THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO OFFER ANY EVIDENCE AND TESTIMONY, OTHER THAN THE APPELLANT S OWN TESTIMONY, IN MITIGATION OF PUNISHMENT. (RR1:11-14) The Appellant would urge that he was denied the effective assistance of counsel when his trial attorney failed to offer evidence and testimony, other than the Appellant s own testimony, that should have been offered in mitigation of 4

10 punishment. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court established an authoritative federal constitutional standard for determining ineffectiveness of counsel and for ascertaining whether such ineffectiveness was prejudicial. Under Strickland, a two-prong test is set out that a defendant, who seeks relief, must meet: First, the defendant must show that counsel s performance was deficient. --- Second, the defendant must show that the deficient performance prejudiced the defense. Id. at In Strickland, the Court stated: The benchmark for judging any claim of ineffectiveness must be whether counsel s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. 104 S.Ct. at Elaborating on the second showing that the defendant must make, the Court said: The defendant must show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at Thus, an Appellant seeking relief under Strickland must show that counsel's performance was deficient and the Appellant must show that the deficient performance prejudiced the defense. In Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999), the Court held that both prongs of the Strickland test were applicable to an ineffective assistance of counsel claim alleging a deficiency of 5

11 attorney performance during a non-capital sentencing proceeding. as follows: FACT STATEMENT In order to address this issue, a summary of the pertinent facts are set forth, TESTIMONY OF THE APPELLANT The Appellant testified that, approximately one week prior to this revocation hearing, he was arrested in a Home Depot where he was falsely accused of theft and switching price tags. (RR1: 17) The Appellant said that, on the day prior to this hearing, he entered a plea of no contest to one charge and the other one was dismissed and that he entered the plea to get it over with. (RR1: 12, 18) [These two charges were alleged in the motion to proceed with the adjudication of guilt. (CR: 19) The remaining three violations alleged in the motion were for the failure to pay court costs and fees. (CR: 19)] The Appellant stated that he had complied with the condition of community supervision regarding community service and that he had been evaluated and had signed up for some classes. (RR1: 12-13) The Appellant also said that he was recently hired by a man named Gilbert and that he was ready to start working so that he could pay his probation fees. (RR1: 13) The Appellant testified that he had been speaking with his probation officer every other week and that his past difficulties were the result of a money 6

12 problem due to his past inability to find employment. (RR1: 14) On cross-examination, the Appellant was questioned about the two prior motions to proceed with the adjudication of guilt. (RR1: 15 et seq.) The Appellant said that the first motion was filed when he failed to show up at the initial interview with his probation officer. (RR1: 15) The Appellant said that he had gone to the wrong building and that the motion was withdrawn. (RR1: 15) The second motion was filed after he was involved in a scuffle with a store security guard when he walked out of the store without paying for a box of raisins. (RR1: 16) The Appellant had tried to explain to the guard that he was intoxicated and had paid for everything else, but he was arrested for robbery and evading arrest. (RR1: 16) Later, the robbery charge was reduced to a misdemeanor theft charge and the evading arrest charge was dismissed. (RR1: 16) The Appellant stated that he was drug free and had been trying to keep [his] life in a positive direction. (RR1: 17-18) ARGUMENTS AND AUTHORITIES Again, the Appellant would urge that he was denied the effective assistance of counsel when his trial attorney failed to offer evidence and testimony, other than his own testimony, in mitigation of punishment. TEX. CODE CRIM. PROC. ART , Section 5(b), reads, in pertinent part, as follows: The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the 7

13 original charge. This determination is reviewable in the same manner as a revocation hearing conducted under Section 21 of this article in a case in which an adjudication of guilt had not been deferred. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred. A court assessing punishment after an adjudication of guilt of a defendant charged with a state jail felony may suspend the imposition of the sentence and place the defendant on community supervision or may order the sentence to be executed, regardless of whether the defendant has previously been convicted of a felony. In this case the Appellant is not complaining that he was not afforded a separate punishment hearing to offer the mitigating evidence and testimony. The Court of Criminal Appeals has interpreted Article 42.12, Section 5(b) to simply require that the Appellant be given the opportunity to present such evidence, either during the adjudication hearing or in a separate punishment hearing. In Pearson v. State, 994 S.W.2d 176 (Tex.Crim.App. 1999), the Court held that a defendant is simply entitled to have the opportunity to present evidence during the proceedings. Id. at 179. [emphasis in original] Likewise, in Grammer v. State, 294 S.W.3d 182 (Tex.Crim.App. 2009), the Court recently held that no error was committed when the trial court failed to conduct a separate punishment hearing. In the present case the defense was given the opportunity during the adjudication hearing to offer some testimony regarding the Appellant s background and the details of his prior criminal history, but the trial attorney only offered the Appellant s own testimony to show those facts. The defense attorney did not offer 8

14 the testimony of any family members, friends, or even his new employer Mr. Gilbert, who had recently hired him. Of course, such testimony would have corroborated the Appellant s testimony that he was taking his life in a positive direction. (RR1: 18) Likewise, the defense could have offered offense and arrest reports that would have corroborated the Appellant s testimony that the seriousness of his prior arrests was overstated. It would appear that the reason why no mitigating evidence was offered, other than the Appellant s own testimony, was that his trial attorney was not appointed until the day prior to the adjudication hearing. (RR1: 11; see the Order Appointing Attorney at CR: 23) The record also shows that the Appellant was served with a copy of the motion to proceed with the adjudication of guilt on the same day as the hearing and that the Appellant agreed to proceed forward on that date. (RR1: 11; CR: 20) However, the Appellant s agreement to proceed with the adjudication hearing did not constitute a valid waiver of his statutory right to ten days to prepare for trial. See TEX. CODE CRIM. PROC. ART (e) and Issue No. Two. The Appellant is mindful that the appellate record is silent as to the reason why his trial attorney did not attempt to offer such evidence and testimony. In Bone v. State, 77 S.W.3d 828 (Tex.Crim.App. 2002), the Court held that trial counsel should ordinarily be afforded an opportunity to explain his actions before 9

15 being held ineffective. Id. at 836. Also, in Ortiz v. State, 93 S.W.3d 79 (Tex.Crim.App. 2002), the Court said: If counsel s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel s decisions and deny relief on an ineffective assistance claim on direct appeal. Id. at In response to that argument, the Appellant would state that there was no reasonable explanation or legitimate trial strategy in failing to offer mitigating evidence. In Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App. 2005), the defense counsel failed to correct a misstatement of the law made by the prosecutor during the jury arguments that the sentences could not be cumulated. In holding that the defendant was denied the effective assistance of counsel, the Court stated that there was no reasonable trial strategy that would lead the defense attorney to fail to correct the misstatement of law that was detrimental to the defendant. Id. at The Court, in Andrews, supra, reversed the conviction even though the record did not include the defense attorney s explanation for his failure to object because the attorney s reasoning, if any, was unnecessary in resolving the ineffective assistance of counsel claim. Likewise, in the present case, no reasonable trial strategy existed that would justify the failure to offer such testimony and evidence in mitigation of punishment. Accordingly, the record supports the Appellant s contention that his trial attorney s performance was deficient. 10

16 Finally, the Appellant must also show, that but for the failure to offer such mitigating testimony, a reasonable probability existed that the result of the proceeding would have been different. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). If mitigation testimony had been offered by the defense, there existed a reasonable probability that the trial court would have continued the Appellant on deferred adjudication, or would have proceeded with the adjudication of guilty and placed the Appellant on community supervision, or would have assessed substantially less punishment than 210 days confinement. Accordingly, the Appellant has carried his burden of proving the second prong of Strickland and has shown that his trial attorney s performance prejudiced his defense as to the assessment of punishment. The Sixth Amendment to the United States Constitution guarantees a criminal defendant reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) In the present case, the Appellant was denied such right. APPELLANT S ISSUE NO. TWO THE APPELLANT DID NOT FREELY AND INTELLIGENTLY WAIVE HIS STATUTORY RIGHT TO TEN DAYS TO PREPARE FOR THE ADJUDICATIOIN HEARING. (RR1: 11) Next, the Appellant would urge that he was denied his statutory right to ten days to prepare for the adjudication hearing. TEX. CODE CRIM. PROC. ART (c) provides, in pertinent part, the following: 11

17 An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement and in any other criminal proceeding if the court concludes that the interests of justice require it. In turn, TEX. CODE CRIM. PROC. ART (e) provided, in part: An appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court. During the adjudication hearing the Appellant s court-appointed counsel questioned the Appellant, as follows: (RR1: 11) Q. Now, Mr. Johnson, you were served with your motion today; is that correct? A. Yes. Q. And I just met you today; is that correct? A. Yes. Q. And I explained to you that you had a right to wait at three days before going forward; is that correct? A. Yes. Q. Now, you decided you wanted to go forward today? A. Correct. In Marin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993, overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997)) the Court held that 12

18 the right to ten days to prepare for the judicial proceeding, as mandated by Article 1.051(e), was a waivable only right. Id. at 280. See also Saldano v. State, 70 S.W. 3d 873, 888 (Tex.Crim.App. 2002) As to waivable-only rights, a defendant need make no request at trial for the implementation of such rights, as the judge has an independent duty to implement them absent an effective waiver by him. Marin v. State, supra, at 280. In Marin the Court further held: Waivable rights, on the other hand, do not vanish so easily. Although a litigant might give them up and, indeed, has a right to do so, he is never deemed to have done so in fact unless he says so plainly, freely, and intelligently, sometimes in writing and always on the record. Id. at 280. [citing Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App. 1992] A review of the record reveals that the Appellant never freely and intelligently waived his statutory right to ten days to prepare for the adjudication hearing. The Appellant did sign a Plea Agreement (Motion to Revoke or Adjudicate) in which it was stated that he waived his ten days to prepare for trial after the appointment of counsel (if counsel has been appointed). (CR: 24) However, this form was a generic boilerplate form and, although the Appellant signed the standardized, pre-printed form, it was not possible to determine whether the Appellant actually understood the nature and consequences of his waiver. Furthermore, the fact that the Appellant never understood his right to ten days to 13

19 prepare for trial is revealed when his attorney stated that he (i.e., the attorney) had explained to the Appellant that he had the right to wait at least three days before going forward (RR1: 11) (emphasis added) In this case the Appellant never freely and intelligently waived his statutory right to ten days to prepare for the adjudication hearing. Finally, in Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997), the Court overruled Marin to the extent that Marin held that a violation of a violation of Article 1.051(e) was not subject to a harmless error analysis. Cain v. State, at 264. TEX. R. APP. PROC. 44.2(b), provides the following: Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. In Anderson v. State, 182 S.W.3d 914 (Tex.Crim.App. 2006) the Court stated: The issue is whether, in a given case, the error affected substantial rights, in which case it is not harmless. No party should have a burden to prove harm from an error, and there ordinarily is no way to prove actual harm. It is important to look at the record as a whole. In general, we look to the severity of the error in a trial, to measures taken to cure the error, and to the certainty of conviction without the error. Id. at In the present case the Appellant was harmed by the fact that his attorney, who was appointed on the day prior to the adjudication hearing, was unable to offer mitigating evidence and testimony, other than the Appellant s own testimony. See Issue No. One. Consequently, this Court cannot 14

20 have fair assurance that the outcome would not have been different if the Appellant had not waived his statutory right to ten days to prepare for trial. Accordingly, reversible error was committed. PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, there being reversible error appearing in the record of the trial of this case, the Appellant moves the Court to reverse the conviction and remand the case to the trial court for further proceedings. Respectfully submitted, JOHN H. HAGLER State Bar No P.O. Box Dallas, Texas Telephone: (214) Facsimile: (214) ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that a true and correct copy of the foregoing brief has been hand-delivered to the Office of the Criminal District Attorney for Dallas County, Frank Crowley Criminal Courts Building, 133 Riverfront Blvd., 11th Floor, Dallas, Texas 75207, on the 11 th day of December, JOHN H. HAGLER 15

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