Case Information
*1 PD-0206-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/1/2015 6:04:53 PM Accepted 4/2/2015 1:12:30 PM ABEL ACOSTA PD-0206-15 CLERK C OURT OF C RIMINAL A PPEALS OF T EXAS _______________________________________ J AMIE A LBERTO I BARRA ,
Appellant,
VS .
T HE S TATE OF T EXAS ,
Appellee. __________________________________________________________________ On Petition for Discretionary Review from the Fourteenth Court of Appeals in
Cause No. 14-13-00337-CR, affirming the conviction in Cause No. 1287084,
In the 174th District Court of Harris County, Texas __________________________________________________________________ A PPELLANT ’ S P ETITION FOR D ISCRETIONARY R EVIEW __________________________________________________________________ A LEXANDER B UNIN Chief Public Defender Harris County, Texas B OB W ICOFF Assistant Public Defender Harris County, Texas TBN 21422700 1201 Franklin, 13 th floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278 bwicoff@pdo.hctx.net Counsel for Appellant *2 I DENTITY OF J UDGE , P ARTIES AND C OUNSEL Trial Court Judge: Hon. Ruben Guerrero
174th District Court Harris County, Texas 1201 Franklin Street, 19 th floor
Houston, Texas 77002 Jamie Alberto Ibarra 1 Parties to the Judgment:
The State of Texas Names and addresses of trial counsel (State): Gretchen Flader
Claire Morneau Assistant District Attorneys Harris County, Texas 1201 Franklin Street, 6 th floor Houston, Texas 77002 Name and address of trial counsel (Defense): Michael Slider
Attorney at Law 1314 Texas Avenue, Suite 1200 Houston, Texas 77002 Counsel on appeal for the State of Texas: Carly Dessauer
Assistant District Attorney Harris County, Texas 1201 Franklin Street, 6 th floor Houston, Texas 77002 Counsel on appeal for the Appellant: Bob Wicoff
Assistant Public Defender Harris County, Texas 1201 Franklin Street, 13 th floor
Houston, Texas 77002 *3 T ABLE OF C ONTENTS
P P AGE Identity of Judge, Parties and Counsel: i
Table of Contents: ii
Index of Authorities: iv
Statement Regarding Oral Argument: v
Statement of the Case: v
Statement of Procedural History: v
Grounds for Review: 1
Ground for Review One
Eight months before trial, the Appellant requested through two written pro
se motions that his retained attorney be dismissed and that the trial court
“appoint the defendant a public defender.” In light of such actions by the
Appellant, did the Fourteenth Court of Appeals err in holding that the
Appellant failed to request a determination of his indigency?
Ground for Review Two
Under what circumstances, if any, is a trial court required to make an inquiry
into a defendant’s indigency?
Ground for Review Three
Did the Fourteenth Court of Appeals err in holding that the trial court’s
refusal to inquire into the Appellant’s indigency did not deprive the
Appellant his counsel of choice under the Texas and federal constitutions?
Argument Under Grounds for Review: 2
Prayer for Relief: 13
Certificate of Service: 13
ii
T ABLE OF C ONTENTS
P P AGE Certificate of Compliance: 14
Appendix ( Ibarra v. State ): appendix
iii
I NDEX OF A UTHORITIES
P AGE Cases
Ex parte Briggs , 187 S.W.3d 458 (Tex. Crim. App. 2005) .................................................. 11
Ibarra v. State , No. 14-13-00337-CR, 2015 WL 293115 .............................................. passim
(Tex. App.-Houston [14th Dist.] Jan. 22, 2015, no pet. h.)
Robinson v. State , 240 S.W.3d 919 (Tex. Crim. App. 2007) ................................................. 10
U.S. v. Mason, 2012 WL 2680748 (5 th Cir. 2012)(unpublished, per curiam) ..................... 9
Wheat v. U.S., 486 U.S. 153 (1988) ...................................................................................... 12
Statutes and Rules
Tex. Penal Code Ann., sec. 12.42(d)………………………………………………… v
Tex. Penal Code Ann., sec. 22.02(a)(2) ..…….……………………………………… v
Tex. Penal Code Ann., sec. 22.02(b)(2)(B)…………………………………………… v
Tex. Code Crim. Proc. Ann., art. 1.051….…………………………………………… v
Tex. Code Crim. Proc. Ann., art. 26.04……………………………………………. 8
Tex. Code Crim. Proc. Ann., art. 46B.004( c ) ….…………………………………… 7
Tex. R. App. P. 44.2(b)…………………………………………………………… 14
Other Authority
George E. Dix & John M. Schmolesky, 42 Texas Practice and Procedure ........................... 8
Sec. 29.40 (3 rd ed. 2011)
iv *6 S TATEMENT R EGARDING O RAL A RGUMENT The Appellant requests oral argument, because the issue of when a trial court is required to inquire into a defendant’s indigency is an important issue of state law that
has not been, but should be, decided by this Court. See Tex. R. App. P. 66.3(b).
S TATEMENT OF THE C ASE The Appellant was indicted in cause number 1287084 for Aggravated Assault on a Public Servant, alleged to have occurred on or about November 30, 2010. The
indictment contained two enhancement paragraphs, thereby subjecting the Appellant
to a punishment range of 25-99 years (C.R. at 8); See Tex. Penal Code, §§ 22.02(a)(2),
22.02(b)(2)(B), 12.42(d). The jury found the Appellant guilty and assessed his
punishment at fifty (50) years confinement (C.R. at 149). A motion for new trial was
filed (C.R. at 164), but was overruled by operation of law.
S TATEMENT OF P ROCEDURAL H ISTORY On January 22, 2015, in a published opinion, the Fourteenth Court of Appeals
affirmed the Appellant’s conviction. Ibarra v. State , No. 14-13-00337-CR, 2015 WL
293115 (Tex. App.-Houston [14th Dist.] Jan. 22, 2015, no pet. h.). This Court has
extended the time to file the Appellant’s Petition for Discretionary Review until April
1, 2015, which is the date that this document is being e-filed.
v
G ROUNDS F OR R EVIEW
G ROUND F OR R EVIEW O NE Eight months before trial, the Appellant requested through two written
pro se motions that his retained attorney be dismissed and that the trial court “appoint the defendant a public defender.” In light of such actions by the Appellant, did the Fourteenth Court of Appeals err in holding that the Appellant failed to request a determination of his indigency?
G ROUND F OR R EVIEW T WO Under what circumstances, if any, is a trial court required to make an
inquiry into a defendant’s indigency?
G ROUND F OR R EVIEW T HREE Did the Fourteenth Court of Appeals err in holding that the trial court’s refusal to inquire into the Appellant’s indigency did not deprive the Appellant his counsel of choice under the Texas and federal constitutions?
A RGUMENT U NDER G ROUNDS FOR R EVIEW A. Statement of Facts Relative to Grounds for Review
1. “Motion to Dismiss Defendant’s Attorney of Record Michael K.
Slider and Appoint Defendant a Public Defender” On August 1, 2012, after nineteen (19) months in continuous custody 2 and
more than eight (8) months before trial would take place, Appellant filed (by certified
mail to the clerk of the 174 th District Court) a pro se “Motion to Dismiss Defendant’s
Attorney of Record Michael K. Slider and Appoint Defendant a Public Defender”
(Supp. C.R. at 5-7). According to the motion, Attorney Slider was hired twenty (20)
months earlier (which would have been around the time of the Appellant’s arrest in
late 2010). In his pro se motion, Appellant alleged the following:
1) Slider had not had any contact with the Appellant in the seven (7) months preceding the filing of the motion;
2) As of the date that the motion was filed (August of 2012), the only action taken by Slider in the year-and-a-half since he began representing the
Appellant was to file a discovery motion;
3) Slider told the Appellant’s family that he could not be fired unless the
family hired another attorney;
*9 4) Slider “told the Defendant that we do not have O.J. Simpson money to pay for experts on forensics and ballistics.”
Appellant then concluded the motion by stating that he could not work with Michael Slider, that he believed that he would not receive effective assistance of
counsel from Mr. Slider, and that he wanted a “Public Defender” to be appointed.
This motion was ignored by the trial court.
2. “Motion for Judge to Disqualify or Recuse Himself”
On August 23, 2012, Appellant filed another pro se motion from jail, this one entitled “Motion for Judge to Disqualify or Recuse Himself” (Supp. C.R. at 3-8).
Appellant averred in this motion that the trial court must have a bias against him
because the court was refusing to address his previous request to fire Michael Slider
and appoint a public defender to represent him. In this motion, the Appellant alleged
that when he was on the docket on August 20, 2012, he had requested of attorney
Slider that he be allowed to appear in front of the judge to present his motion to
dismiss Slider to have a public defender appointed instead. The motion also alleges
that the Appellant asked the bailiff of the 174 th District Court, J.J. Turner, to ask the
judge if the Appellant could approach the bench to discuss the previous motion
(requesting appointment of a public defender). According to the later motion, Turner
did so, but the judge refused to allow the Appellant to be heard on the matter. Finally,
the motion specifies 6 inmate witnesses who could attest to the Appellant’s attempts
to bring his motion in front of the trial court on August 20, 2012. 3
This second
pro se motion was denied by the trial court on October 30, 2012, over two months after it was filed (Supp. C.R. at 7). This motion provided the second
complaint in a month that served to indicate to the trial court that the Appellant
wished to fire attorney Michael Slider and was asking the Court to appoint a public
defender to represent him.
3. Pretrial hearing of April 3, 2014
On April 3, 2014, the Appellant was allowed to address the trial court for the first time. The following exchange took place between the Appellant and Judge Jay
Burnett, a visiting judge:
IBARRA: Sir, I would like to make a record. I’ve been for…since last July of last year, I’ve been trying to get Mr. Slider off my case. My family hired him. I’ve been trying to fire him by certified mail with a Motion to Dismiss to Judge Ruben Guerrero and that’s been ignored. And Mr. Slider has repeatedly showed up as my attorney. I believe I have a right of choice of counsel and I haven’t had it. I’ve been asking for Mr. Slider to remove himself from my case for different reasons. He’s been defective and ineffective in filing proper motions. And, you know, I’ve been here 24 - two years and four months already. And I’ve been asking for a speedy trial the whole time and I’ve been denied my right to a speedy trial.
THE COURT: Okay. And I do, however, regardless strongly suggest that you somehow work with your attorney on this, but that’s up to you.
IBARRA: No. I’ve been trying to work with my attorney for too long already. And on the record, he’s fired. My family has called him and *11 fired him. Like I said, I sent him certified mail. I have certified receipt numbers where I sent the letters (II R.R. at 6-8).
At this point, attorney Slider began questioning Ibarra: SLIDER: Okay, when I’ve made those trips, I actually talked to you about preparing the case for trial and going over the offense report and you always shouted. Get away, you’re fired. Correct.
IBARRA: Since July, yes, sir.
SLIDER: When we’re in court and I tried to speak to you in the holdover, you say the same thing: Get away, you’re fired. Correct?
IBARRA: Yes, sir. (II R.R. at 8)
The visiting judge took no action after the above testimony.
4. Pretrial hearing of April 4, 2014
The next day, attorney Michael Slider filed a “Motion to Withdraw as Counsel” (Supp. C.R. at 14-15). In the motion, attorney Slider informed the Court that:
1. Appellant failed to pay him his fee;
2. He had a conflict with Appellant;
3. He was not Appellant’s attorney of choice;
4. Appellant had refused to talk with him since July of 2012; 5. He conceded that: “The attorney cannot give this defendant effective representation under these circumstances and be effective at trial.” This motion was denied (Supp. C.R. at 16). The next day, attorney Slider filed a motion stating that Appellant needed to be examined by a psychiatrist or medical
doctor because “He is refusing to speak to defense counsel, is talking about suicidal
thoughts, cries and mumbles.” This motion was denied the day it was filed. (Supp.
C.R. at 17).
B. Appellant’s argument at the court of appeals, and that court’s opinion
The Appellant complained that his right to appointed counsel under the United States and Texas Constitutions, as well as under article 1.051 of the Texas Code of
Criminal Procedure, was violated by the trial court’s refusal to inquire of his
indigency, and in not then appointing counsel to replace his retained attorney.
In responding to this complaint, the court of appeals replied: To the extent appellant complains that the trial court violated his rights under the United States Constitution and the Texas Constitution by failing to appoint counsel to represent him, that complaint lacks merit because a trial court does not have a duty to appoint counsel until the defendant shows he is indigent. See Gray v. Robinson, 744 S.W.2d 604, 607 (Tex.Crim.App.1988). A trial court has no duty to appoint counsel when a defendant has “managed to retain counsel” or “has made no showing of indigency.” Id. ; Easily v. State, 248 S.W.3d 272, 281 (Tex.App.– Houston [1st Dist.] 2007, pet. ref'd). Neither in his motion, nor in his pre-trial exchange with the trial court, did appellant claim to be indigent, and he made no showing that he was indigent. See Gray, 744 S.W.2d at 607.
* * * Appellant also asserts that the trial court should have followed the dictates of Article 1.051(b), (c) and was required to appoint counsel to represent him. That statute provides in pertinent part as follows: (b) ... “indigent” means a person who is not financially able to employ counsel. (c) An indigent defendant is entitled to have an attorney appointed to represent him....
Tex. Code Crim. Proc. Ann. art. 1.051. In the trial court, although appellant requested appointment of counsel, he did not assert he was indigent, make any showing that he was indigent, or request a determination of indigency. A trial court does not have a duty to appoint counsel until the defendant shows he is indigent. See Gray, 744 S.W.2d at
607; Easily, 248 S.W.3d at 281. Because appellant did not show he was indigent, the trial court was not required by Article 1.051 to appoint counsel to represent him, and thus the trial court did not err in failing to appoint counsel. See Gray, 744 S.W.2d at 607; Easily, 248 S.W.3d at 281. Appellant also contends that, after the trial court was made aware counsel was not his attorney of choice and had been fired and that appellant wanted the trial court to appoint counsel, it was the trial court's duty to inquire into whether appellant was indigent, that is, not financially able to employ counsel. The parties have not cited, and research has not revealed, any statute or legal authority addressing this issue. We conclude that appellant has not shown that the trial court erred in failing to inquire as to whether he was indigent. The trial court was not required to conduct an inquiry on its own motion as to whether appellant was indigent. See Whitehead v. State, 130 S.W.3d 866, 874
(Tex.Crim.App.2004); Gray, 744 S.W.2d at 607; Easily, 248 S.W.3d at
281. Ibarra v. State , No. 14-13-00337-CR, 2013 WL 177456, at *3-4 (Tex. App.-Houston [14th Dist.] Jan. 22, 2015, no pet. h.).
C. Argument Under Grounds for Review
When is a trial court under an obligation to inquire into whether a defendant is indigent? Is raising the issue of indigency analogous to raising the issue of
competency, where a trial court is required to “determine by informal inquiry”
whether there is some evidence “from any source” that would suggest incompetency?
See Tex. Code Crim. Proc. Ann., art. 46B.004(c)? Or must a criminal defendant meet
specific, more stringent requirements to get the court’s attention when he is
requesting appointed counsel?
The court of appeals states in its opinion that it can find no statute or legal authority that suggests that a trial court has such a duty when a defendant has fired his
counsel and wants a new lawyer. Opinion, at *4. With respect to the precise fact
situation presented here, the court may be correct, but Tex. Code Crim Proc. Ann.,
art. 26.04 (“Procedures for Appointing Counsel”) clearly anticipates scenarios where a
defendant can no longer afford retained counsel:
(p) A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs. If there is a material change in financial circumstances after a
determination of indigency or nonindigency is made, the defendant , the
defendant's counsel, or the attorney representing the state may move for reconsideration of the determination.
One authority has suggested that while the Code of Criminal Procedure does not clearly provide for a hearing on indigency, such was likely the intent of the
Legislature:
The Code of Criminal Procedure does not explicitly provide for a hearing on a defendant’s assertion of a right to appointed counsel. Undoubtedly, however, the legislature contemplated that defendants seeking representation would have a full opportunity to make their case for eligibility for appointed counsel and—if the matter was discretionary with the court—for a favorable exercise of that discretion.
Whether the “hearing” must be one in which the defendant is entitled to introduce live testimony is less clear. Given the importance of the right to counsel, a trial judge certainly acts at considerable risk in denying counsel without such a full opportunity for the defendant to be heard. George E. Dix & John M. Schmolesky, 42 Texas Practice: Criminal Practice and Procedure sec. 29.40 (3 rd ed. 2011).
- 8 -
In federal court, a situation such as presents itself in this case would require a
trial court to inquire into a defendant’s indigency. See U.S. v. Mason, 2012 WL 2680748
(5 th Cir. 2012)(unpublished, per curiam)(District court was required by the Criminal
Justice Act (CJA) to inquire into defendant’s financial eligibility for appointment of
counsel after guilty plea and prior to sentencing, once defendant requested court-
appointed counsel and expressed concern that retained counsel did not want to spend
too much time with defendant because of defendant’s inability to pay promptly; case
would be remanded for district court to conduct inquiry and potentially appoint
counsel for new sentencing hearing).
The Fourteenth Court of Appeals seems to rest its conclusion that the Appellant’s indigency was not sufficiently raised in this case on the fact that he did not
specifically assert that he was indigent (“Neither in his motion, nor in his pre-trial
exchange with the trial court, did appellant claim to be indigent, and he made no
showing that he was indigent.” Ibarra , at *3).
This conclusion overlooks the following:
1) In terms of alerting the trial court to what he was requesting in his pro se motion of August 1, 2012, it must be remembered that the motion was entitled “Motion to Dismiss Defendant’s Attorney of Record Michael K. Slider, and
Appoint Defendant a Public Defender ” (emphasis added). When the court of appeals writes “appellant did not assert that he was indigent or submit proof *16 that he was indigent,” the obvious question which arises is this: what else could it mean when a defendant asks a court to “Appoint a Public Defender?” 2) In terms of what it takes to bring the matter of indigency to the attention of the trial judge, when the court of appeals observes that “the appellant asked the trial court to appoint a lawyer to represent him, but appellant did not assert that he was indigent or submit proof that he was indigent,” such comment blithely ignores the reality of pro se motions in criminal courts and especially pro se motions challenging the effectiveness of one’s lawyer. The reality, of course, is that the Appellant, confined to a wheelchair due to having been shot four times by police officers (IX R.R. at 8-9), had by August of 2012 been in continuous custody for nineteen (19) months and was confined in the holdover cell whenever he went to court. As with any other pro se motion, getting oneself heard by the trial court, especially regarding a matter like discharging your lawyer, depends on either being very vocal with the guards (who may or may not oblige you), or prevailing upon the lawyer you are complaining about to get you brought out of the holdover and in front of the bench so that you can air your grievances about him in front of everyone. Under any scenario, the defendant is entirely subject to the whims of others as to whether he will have any opportunity to “submit proof that he was indigent.” 3) When the court of appeals cites Robinson v. State, 240 S.W.3d 919 (Tex. Crim. App. 2007) for the proposition that a trial court is free to disregard any *17 pro se motions presented by a defendant who is represented by counsel, it is squarely placing the Appellant in a Catch-22 situation: In order for the court to consider your motion to discharge your retained lawyer and have a public defender appointed to your case heard by the court, you need to submit proof of your indigency. However, good luck with that, because the trial court is not required to consider any pro se motion raising these issues.
There is no reason whatsoever to believe that if the Appellant had filed a motion with a sworn affidavit of indigency it would have garnered any more attention
than the one he filed, and there is every reason to believe that if the trial court had
only given the Appellant a brief hearing on his August 2012 motions, he would have
explained exactly what he meant by wanting the court to “appoint a public defender”
to his case. Perhaps he would have pursued one issue that was explicitly mentioned in
in his August 1, 2012 motion, and which clearly did relate to his financial ability to
defend himself, namely, counsel’s assertion that there was not enough money to hire
experts (“we do not have O.J. Simpson money to pay for expert witnesses.”). If
counsel told the Appellant that experts could not be afforded, then obviously, counsel
was under a misimpression regarding what steps were available if the Appellant could
not afford necessary experts. See Ex parte Briggs , 187 S.W.3d 458, 468 (Tex. Crim. App.
2005).
The Appellant’s pro se motion, by its very caption and by the Ake issue raised within the motion, was adequate to put the trial court on notice that the Appellant’s
indigency had become an issue. Indeed, the fact that the Appellant had, by the time he
filed his motion on August 1, 2012, been in custody for nineteen (19) months and was
confined to a wheelchair, should have lent some credence to the notion that he was
indigent, as his motion suggested.
Finally, by denying the Appellant the option of firing the attorney that had been chosen for him by his family, and determining whether he was eligible for a court-
appointed attorney, the trial court effectively denied the Appellant his counsel of
choice, in violation of the Sixth Amendment to the United States Constitution and
art. I, sec. 10 of the Texas Constitution. The essential aim of the Sixth Amendment is
“to guarantee an effective advocate for each criminal defendant rather than to ensure
that a defendant will inexorably be represented by the lawyer whom he prefers.”
Wheat v. U.S. , 486 U.S. 153, 158-59 (1988). However, the Appellant was not
requesting a specific attorney over another. He was asking to discharge his attorney,
and then, due to his indigency, to be given any public defender that the trial court
decided to appoint.
In conclusion, the court of appeals erred in holding that the trial court had no obligation to investigate the Appellant’s indigency under these facts, which resulted in
the Appellant proceeding to trial with counsel who was not of his choosing, in
violation of the federal and state constitutions.
P RAYER F OR R ELIEF For the reasons stated above, the Appellant moves that this Court grant his petition and reverse the judgment of conviction in this case, and remand the case for a
new trial.
Respectfully submitted, Alexander Bunin Chief Public Defender Harris County Texas /s/ Bob Wicoff Bob Wicoff Assistant Public Defender Harris County Texas 1201 Franklin, 13 th floor Houston Texas 77002 (713) 274-6781 TBA No. 21422700 Counsel for Appellant C ERTIFICATE OF S ERVICE
I hereby certify that on April 1, 2015, a copy of the foregoing petition has been served electronically on Alan Curry, who is the chief of the appellate division of the
Harris County District Attorney’s Office, through the efile system, and on the State
Prosecuting Attorney.
/s/ Bob Wicoff *20 C ERTIFICATE OF C OMPLIANCE This petition complies with the type-volume limitations of Tex. R. App. Proc.
9.4(e) and 9.4(i). It contains 3,045 words printed in a proportionally spaced typeface
using Garamond 14 point font.
/s/ Bob Wicoff
Ibarra v. State, --- S.W.3d ---- (2015)
A P P E N D I X
Opinion in Ibarra v. State, No. 14-13-00337-CR, 2015 WL 293115 (Tex. App.-Houston [14th Dist.] Jan. 22, 2015, no pet. h.)
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15
Ibarra v. State, --- S.W.3d ---- (2015)
[7] prosecutor’s comments during closing argument of 2015 WL 293115 punishment phase regarding information related to Only the Westlaw citation is currently available. defendant’s prior juvenile adjudications of delinquency
OPINION noted in JOT report were not outside scope of permissible Court of Appeals of Texas, argument.
Houston (14th Dist.
Jamie Alberto Ibarra, Appellant Affirmed.
v.
The State of Texas, Appellee
NO. 14–13–00337–CR | Opinion filed January 22,
2015 West Headnotes (18) Synopsis Background: District Court, Harris County, of aggravated assault on Defendant was convicted in the 174th [1] Criminal Law Withdrawal by Counsel
public servant. Defendant appealed. Defendant was not denied his federal and state
constitutional rights to counsel of his choice when trial court denied defense counsel’s motion to withdraw and refused to appoint Holdings: The Court of Appeals, John Donovan, J., held counsel from public defender’s office, in trial that: for aggravated assault on public servant, despite
[1] defendant was not denied his federal and state constitutional rights to counsel of his choice; multiple expressions of dissatisfaction with counsel and refusal to communicate with counsel; there was no indication that defendant
[2] trial court did not abuse its discretion in denying motion by defense counsel to withdraw; or his family took any steps to retain another attorney opportunity to do so, defendant never informed to represent defendant, despite
[3] trial court was not obligated under criminal procedure showing that he was indigent nor requested determination article to appoint counsel for defendant who made no of indigency; retain lawyer, he did not express desire to represent himself, and he was not entitled to trial court that he could no longer afford to have counsel appointed absent showing that he was indigent. U.S. Const. Amend. 6; Tex. Const.
[4] trial court had no obligation under criminal procedure art. 1, § 10.
article, upon learning of defendant’s dissatisfaction with Cases that cite this headnote and alleged termination of his retained counsel, to sua
sponte inquire into defendant’s indigency;
[5] defendant was not prejudiced by defense counsel’s
failure to object to testimony of juvenile probation officer about her interview with defendant when he was juvenile and information contained in Juvenile Offense Tracking [2] Criminal Law Choice of Counsel
(JOT) report; An element of the constitutional right to
[6] defendant’s statements, as juvenile, to juvenile course of interrogation, within meaning of Family Code probation officer during interview were not made in governing statements made during interrogation; and who does not require appointed counsel to choose who will represent him; however, this assistance of counsel is the right of a defendant right is not absolute. U.S. Const. Amend. 6; Tex. Const. art. 1, § 10. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 16
Ibarra v. State, --- S.W.3d ---- (2015)
Cases that cite this headnote
Trial court did not abuse its discretion in denying motion by defense counsel to withdraw, in trial for aggravated assault of public servant, [3] Criminal Law Choice of Counsel given counsel having filed motion to withdraw less than one week prior to trial, length of time that case had been pending, and defendant’s failure to take steps to retain another lawyer.
A defendant has no right to be represented by an
advocate who is not a member of the bar, an Cases that cite this headnote
attorney whom he cannot afford or whom
declines to represent him, or an attorney who
has a previous or ongoing relationship with an
opposing party. U.S. Const. Amend. 6; Tex. Const. art. 1, § 10. [7] Criminal Law Withdrawal by Counsel
Cases that cite this headnote
The trial court has discretion to determine whether counsel’s withdrawal should be granted, balancing the matters asserted with the
[4] Criminal Law Choice of Counsel potential for obstruction to the judicial process or interference with the administration of justice.
Cases that cite this headnote While there is a strong presumption in favor of a
defendant’s right to retain counsel of choice, this presumption may be overridden by other
important considerations relating to the integrity of the judicial process and the fair and orderly administration of justice; nonetheless, when a [8] Criminal Law Indigence
trial court unreasonably or arbitrarily interferes Trial court was not obligated under criminal with the defendant’s right to choose retained procedure article to appoint counsel for counsel, its actions rise to the level of a defendant who made no showing that he was constitutional violation. U.S. Const. Amend. 6; indigent, nor requested determination of Tex. Const. art. 1, § 10. indigency. Tex. Crim. Proc. Code Ann. art.
Cases that cite this headnote 1.051(b, c).
Cases that cite this headnote [5] Criminal Law Indigence [9] Criminal Law Indigence
A trial court does not have a duty to appoint
counsel until the defendant shows he is indigent. Trial court had no obligation under criminal U.S. Const. Amend. 6; Tex. Const. art. 1, § 10. procedure article, upon learning of defendant’s
Cases that cite this headnote dissatisfaction with and alleged termination of
his retained counsel, to sua sponte inquire into defendant’s indigency, for purposes of defendant’s request for appointed counsel. Tex.
[6] Criminal Law Crim. Proc. Code Ann. art. 1.051.
Withdrawal by Counsel Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 17
Ibarra v. State, --- S.W.3d ---- (2015)
foreclosed because of an appellant’s inaction at
trial. U.S. Const. Amend. 6; Tex. Const. art. 1, § 10.
[10] Criminal Law Cases that cite this headnote
Conduct of Trial in General
On a claim of ineffective assistance of counsel
where there is no record explaining the underlying reasons for counsel’s conduct, the reviewing court will not speculate about them. [14] Criminal Law Presentation of evidence regarding sentencing
U.S. Const. Amend. 6; Tex. Const. art. 1, § 10. Defendant was not prejudiced by defense
Cases that cite this headnote counsel’s failure to object to testimony of juvenile probation officer about her interview
with defendant when he was juvenile, specifically about information contained in [11] Criminal Law Presumptions and burden of proof in general Juvenile Offense Tracking (JOT) report that she had reviewed prior to interview regarding his involvement in robbery during which he had pointed gun at victim, and officer’s testimony
The presumption that counsel’s actions were that it appeared to her that defendant had not reasonably professional and motivated by sound taken robbery charge very seriously because gun trial strategy is not rebutted where the record is had not been loaded, in alleged violation of silent as to counsel’s rationale for his trial hearsay rules, as required to support claim of strategy. U.S. Const. Amend. 6; Tex. Const. art. ineffective assistance of counsel, in punishment 1, § 10. phase of trial for aggravated assault of public servant, given admission of defendant’s prior
Cases that cite this headnote convictions and admission of evidence from guilt phase of trial. U.S. Const. Amend. 6; Tex.
Const. art. 1, § 10.
[12] Criminal Law Cases that cite this headnote
Conduct of Trial in General
An appellate court will not find ineffective
assistance of counsel when the record is silent as to counsel’s rationale for trial strategy unless counsel’s conduct was so outrageous that no [15] Infants Interrogation and Investigatory Questioning
competent attorney would have engaged in it. Defendant’s statements, as juvenile, to juvenile U.S. Const. Amend. 6; Tex. Const. art. 1, § 10. probation officer during interview after officer reviewed Juvenile Offense Tracking (JOT)
Cases that cite this headnote report about robbery that he had been involved
in were not made in course of interrogation, within meaning of Family Code statute providing that statements of child were not [13] Criminal Law Counsel for accused inadmissible if statement did not stem from interrogation. Tex. Fam. Code Ann. § 51.095(b)(1), (2).
While the general rule is an alleged error must Cases that cite this headnote be first brought to the attention of the trial court
before it can be heard on appeal, an ineffective-
assistance-of-counsel claim will generally not be © 2015 Thomson Reuters. No claim to original U.S. Government Works. 18
Ibarra v. State, --- S.W.3d ---- (2015)
[16] Criminal Law On Appeal from the 174th District Court, Harris County, Texas, Trial Court Cause No. 1287084
In particular prosecutions
Attorneys and Law Firms Prosecutor’s comments during closing argument Bob Wicoff, Houston, TX, for Appellant. of punishment phase regarding information
related to defendant’s prior juvenile Carly Dessauer, Houston, TX, for Appellee. adjudications of delinquency noted in Juvenile Offense Tracking (JOT) reports were not outside Panel consists of Chief Justice Frost and Justices scope of permissible argument, in sentencing for Donovan and Brown. aggravated assault of public servant, where evidence of prior juvenile history was admitted
and jury was asked to consider defendant’s criminal history in assessing punishment. Cases that cite this headnote OPINION
John Donovan, Justice [17] Criminal Law Appellant, Jamie Alberto Ibarra, appeals his conviction *1 for aggravated assault on a public servant, contending he
Scope of and Effect of Summing up was denied his right to counsel of his choice, and he
received ineffective assistance of counsel. We affirm.
Closing arguments are made to assist the jury in
its analysis of the evidence presented at trial in
order to reach a just determination. Cases that cite this headnote I. BACKGROUND
According to the record evidence, in November 2010, appellant arrived at the home of Martha Maldonado to see her daughter, Michell Mares, with whom appellant [18] Criminal Law previously had a relationship. When Maldonado told appellant that Mares was not home, appellant continued
Comments on Evidence or Witnesses knocking on the door, insisting on seeing Mares. Because
Criminal Law appellant had exhibited harassing behavior in the past, Inferences from and Effect of Evidence
Criminal Law Maldonado called the police.
Comments on frequency of offenses, and
appeals for law enforcement When two police officers arrived at Maldonado’s home, they observed appellant on the porch, using a cell phone.
Criminal Law
Rebuttal Argument; Responsive Statements Appellant stood, removed a handgun from his pocket, and pointed it at his head. Both officers drew their weapons
and Remarks
and, while attempting to calm appellant, they moved near their patrol car to seek cover. Appellant refused to put Jury argument may encompass a summation of
the evidence, reasonable deductions which can down his gun, and he ran away from the house, hiding behind a truck in a nearby parking lot. Backup officers
be drawn from the evidence, answers to opposing counsel’s argument, and a plea for law arrived. Appellant stated he would not put the gun down unless he went down with it, and he fired the gun at an
enforcement. officer who was moving to a secure location in the
Cases that cite this headnote parking lot. The shot did not hit the officer. A police
SWAT team arrived, following appellant as he jumped the fence of the parking lot and ran to another location, breaking into a truck. Appellant was shot and injured after pointing his gun at one of the SWAT team officers. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 19
Ibarra v. State, --- S.W.3d ---- (2015)
A jury found appellant guilty of the first-degree felony four days prior to trial, which was heard by the trial court
offense of aggravated assault against a public servant, [1] the same day. The trial court noted the case had been
and found two enhancement paragraphs to be true. The pending for a very long time and was preferentially set,
jury assessed punishment at fifty years’ confinement. made a finding that appellant refused to cooperate with
counsel, and denied the motion.
Appellant asserts here he was deprived of his constitutional “right to counsel of his choice” because the II. COMPLAINTS REGARDING COUNSEL OF counsel his family hired was not of his choice, and the APPELLANT’S CHOICE trial court should have appointed different counsel.
[1] In his first issue and second issues, appellant contends
he was denied the right to counsel of his choice under the
United States Constitution and the Texas Constitution. A. Complaint under the United States and Texas
About eight months before the case proceeded to trial in Constitutions [2] [3] The Sixth Amendment to the United States
April 2013, appellant filed a handwritten “Motion to Dismiss Defendant’s Attorney of Record, ... and Appoint [counsel] some 20 months previous to the date of the Defendant a Public Defender,” alleging he “employed because appellant had no contact with counsel in the past seven months, and that counsel had “taken no affirmative had failed to provide “reasonably effective assistance” filing of this motion.” Appellant further asserted counsel expert witnesses on forensic’s (sic) and ballistics.” Appellant did not notify the trial court he was indigent or requested the trial court dismiss retained counsel and without the financial ability to obtain counsel. Appellant the Defendant.” Appellant’s motion alleged counsel told him, “we do not have O.J. Simpson money to pay for action to preserve and to protect the valuble (sic) rights of “appoint a new counsel/Public Defender to act in (sic) order in which the trial court disposed of this motion. [2] behalf of Defendant.” The record does not contain an and public trial ... and to have the assistance of counsel all criminal prosecutions the accused shall have a speedy for his defense”); Tex. Const. art. I, § 10 (providing, “In prosecutions, the accused shall enjoy the right to a speedy public trial ... and shall have the right of being heard by 117 S.W.3d 831, 836–37 Gonzalez v. State, Ann. art. 1.05 (West, Westlaw through 2013 3d C.S.); himself or counsel or both....”); Tex. Code Crim. Proc. criminal defendant the right to have assistance of counsel. Constitution and the Texas Constitution guarantee a See U.S. Const., amend. VI (providing, “In all criminal will represent him. who does not require appointed counsel to choose who (Tex.Crim.App.2003). An element of this constitutional right to assistance of counsel is the right of a defendant 548 U.S. 140, 144, 126 S.Ct. 2557, 2561, 165 L.Ed.2d 409 (2006); United States v. Gonzalez–Lopez, See 117 S.W.3d at 836–37. But, this Gonzalez, right is not absolute. See Gonzalez–Lopez, 548 U.S. at 144, 126 S.Ct. at 2561; Gonzalez, 117 S.W.3d at 837; see
*2 The week prior to trial, appellant asked to make a also Wheat v. U.S., 486 U.S. 153, 158–59, 108 S.Ct. record to renew his complaints regarding counsel, 1692, 1697–98, 100 L.Ed.2d 140 (1988) (“[W]hile the asserting (1) appellant had been asking for counsel to right to select and be represented by one’s preferred remove himself from the case, (2) appellant’s counsel had attorney is comprehended by the Sixth Amendment, the been “defective and ineffective in filing proper motions,” essential aim of the Amendment is to guarantee an and (3) appellant had been requesting but had been denied effective advocate for each criminal defendant rather than a right to a speedy trial, and he had not “been treated to ensure that a defendant will inexorably be represented fair.” Appellant complained he had been working with by the lawyer whom he prefers.”). For example, a retained counsel “for too long already” and “on the defendant has no right to be represented by an advocate record, he’s fired. My family has called him and fired who is not a member of the bar, an attorney whom he him.” Counsel questioned appellant who admitted there cannot afford or whom declines to represent him, or an had been numerous trial dates (over a dozen resets), he attorney who has a previous or ongoing relationship with had refused to speak with counsel for almost a year, he an opposing party. See Gonzalez, 117 S.W.3d at 837. had refused to sign trial reset forms, and he had
continually ordered counsel to “Get away, you’re fired.” [4] While there is a strong presumption in favor of a
The trial court advised appellant to work with counsel and defendant’s right to retain counsel of choice, this confirmed retained counsel would continue to represent presumption may be overridden by other important appellant for purposes of trial. considerations relating to the integrity of the judicial process and the fair and orderly administration of justice.
Counsel for appellant filed a written motion to withdraw Id. ; see also Gonzalez–Lopez, 548 U.S. at 152, 126 S.Ct. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 20
Ibarra v. State, --- S.W.3d ---- (2015)
at 2566–67 (stating “[w]e have recognized a trial court’s court, did appellant claim to be indigent, and he made no
wide latitude in balancing the right to counsel of choice showing that he was indigent. See Gray, 744 S.W.2d at
against the needs of fairness and against the demands of 607.
its calendar.”) (citations omitted); Ex parte Windham, 634
S.W.2d 718, 720 (Tex.Crim.App.1982) (listing factors to
be weighed in balancing defendant’s right to retained counsel of choice against trial court’s need for prompt and trial court unreasonably or arbitrarily interferes with the efficient administration of justice). Nonetheless, when a See Gonzalez, rise to the level of a constitutional violation. defendant’s right to choose retained counsel, its actions 117 S.W.3d at 837. [6] B. Complaint under the Texas Code of Criminal Procedure Under his second issue, appellant also complains the trial court erred in refusing to allow his counsel to withdraw, not inquiring of his indigency, and not appointing counsel under Texas Code of Criminal Procedure Article 1.051. See Tex. Code Crim. Proc. Ann. art. 1.051 (West 2014).
*3 In the case under review, appellant’s family apparently 240 terminate this lawyer’s representation of appellant. The
retained a lawyer on his behalf to represent him. In his record also reflects that appellant refused on various court is free to disregard any Nonetheless, the record does not reflect that appellant or (Tex.Crim.App.1991); see also Robinson v. State, pro se motion to dismiss, and at several hearings, appellant choosing. See Gonzalez–Lopez, 548 U.S. at 151, 126 S.Ct. at 2565; Dunn v. State, 819 S.W.2d 510, 520 any other person on his behalf took any steps to retain another lawyer to represent appellant. Appellant did not request additional time to attempt to retain another lawyer, nor did appellant state that he no longer could afford retained counsel. Appellant did not express any desire to represent himself. Instead, appellant asked the appellant did not assert that he was indigent or submit proof that he was indigent. Appellant had an opportunity to retain a different lawyer, and appellant had no right to be represented by a court-appointed lawyer of his trial court to appoint a lawyer to represent him, but occasions to communicate with his lawyer about his case. motions presented by S.W.3d 919, 922 (Tex.Crim.App.2007) (holding a trial expressed dissatisfaction with this lawyer and a desire to a defendant who is represented by counsel). We conclude whether the trial court erred in denying appellant’s counsel motion to withdraw. King v. State, 566; Hobbs, 359 S.W.3d at 926–27. the “zone of reasonable disagreement,” we must affirm the trial court. See trial court did not abuse its discretion in denying counsel’s motion to withdraw. obstruction to the judicial process or interference with the withdraw less than a week before trial. Given the have resulted). Appellant’s counsel filed a motion to counsel where delay in the administration of justice would (Tex.Crim.App.2008) (approving of denial of change in 359 S.W.3d 919, 926 (Tex.App.–Houston 29 S.W.3d at 566; see also Coleman to determine whether withdrawal should be granted, proximity of the trial setting, the length of time the case administration of justice. King, balancing the matters asserted with the potential for [14th Dist.] 2012, no pet.). The trial court has discretion King, See We apply an abuse of discretion standard to determine [7] retain another lawyer or submit proof of indigency, the had been pending, and appellant’s failure to take steps to 117 S.W.3d at 836–37; Hobbs v. State, 556, 566 (Tex.Crim.App.2000). If the ruling falls within 29 S.W.3d 29 S.W.3d at Gonzalez, v. State, 246 S.W.3d 76, 86
that the trial court did not unreasonably or arbitrarily interfere with appellant’s right to choose retained counsel. Gonzalez, See 117 S.W.3d at 837–46. [8] Appellant also asserts that the trial court should have followed the dictates of Article 1.051(b), (c) and was required to appoint counsel to represent him. That statute
[5] To the extent appellant complains that the trial court provides in pertinent part as follows:
violated his rights under the United States Constitution
and the Texas Constitution by failing to appoint counsel (b) ... “indigent” means a person who is not financially able to
to represent him, that complaint lacks merit because a trial
court does not have a duty to appoint counsel until the employ counsel.” (c) An indigent defendant is entitled to have an
defendant shows he is indigent. See Gray v. Robinson,
744 S.W.2d 604, 607 (Tex.Crim.App.1988). A trial court attorney appointed to represent him....
has no duty to appoint counsel when a defendant has
“managed to retain counsel” or “has made no showing of Tex. Code Crim. Proc. Ann. art. 1.051. In the trial court, indigency.” Id. ; Easily v. State, 248 S.W.3d 272, 281 although appellant requested appointment of counsel, he (Tex.App.–Houston [1st Dist.] 2007, pet. ref’d). Neither did not assert he was indigent, make any showing that he in his motion, nor in his pre-trial exchange with the trial was indigent, or request a determination of indigency. A
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 21
Ibarra v. State, --- S.W.3d ---- (2015)
trial court does not have a duty to appoint counsel until behavior and were motivated by sound trial strategy.
the defendant shows he is indigent. See Gray, 744 S.W.2d Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Thompson v.
at 607; Easily, 248 S.W.3d at 281. Because appellant did State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). Thus
not show he was indigent, the trial court was not required “the defendant must overcome the presumption that,
by Article 1.051 to appoint counsel to represent him, and under the circumstances, the challenged action ‘might be
thus the trial court did not err in failing to appoint considered sound trial strategy.’ ” Thompson, 9 S.W.3d at
counsel. See Gray, 744 S.W.2d at 607; Easily, 248 812. The presumption is overcome only when evidence of
S.W.3d at 281. ineffective assistance is “firmly founded and affirmatively
*4 [9] Appellant also contends that, after the trial court was demonstrated in the record.” 66 Melancon v. State, S.W.3d 375, 378 (Tex.App.–Houston [14th Dist.] 2001,
made aware counsel was not his attorney of choice and pet. ref’d) (citing McFarland v. State, 928 S.W.2d 482,
had been fired and that appellant wanted the trial court to 500 (Tex.Crim.App.1996)). The totality of the
appoint counsel, it was the trial court’s duty to inquire representation is the appropriate context; counsel is not to
into whether appellant was indigent, that is, not be judged on isolated portions of his representation.
financially able to employ counsel. The parties have not Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Our review
cited, and research has not revealed, any statute or legal of counsel’s performance is highly deferential, beginning
authority addressing this issue. We conclude that with the strong presumption counsel’s actions were
appellant has not shown that the trial court erred in failing reasonably professional and motivated by sound trial
to inquire as to whether he was indigent. The trial court strategy. See Jackson v. State, 877 S.W.2d 768, 771
was not required to conduct an inquiry on its own motion (Tex.Crim.App.1994).
as to whether appellant was indigent. See Whitehead v. State, 130 S.W.3d 866, 874 (Tex.Crim.App.2004); Gray, [11] [10] Where there is no record explaining the [13] [12]
744 S.W.2d at 607; Easily, 248 S.W.3d at 281. underlying reasons for counsel’s conduct, we will not
speculate about them. Perez v. State, 56 S.W.3d 727, 731
Having rejected the arguments under appellant’s first and (Tex.App.–Houston [14th Dist.] 2001, pet. ref’d) (citing
second issues, we overrule these issues. Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.–Houston
[1st Dist.] 1996, no pet.)); see also Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.Crim.App.2001). [3] The presumption is not rebutted where the record is silent as to counsel’s rationale for his trial strategy. Perez, 56 S.W.3d at 732. II. CLAIM REGARDING INEFFECTIVE We will not find ineffective assistance unless counsel’s ASSISTANCE OF COUNSEL conduct was “so outrageous that no competent attorney would have engaged in it.” Goodspeed v. State, 187
In his third issue, appellant contends he was denied S.W.3d 390, 392 (Tex.Crim.App.2005). effective assistance of counsel at the punishment phase of
the trial.
B. Analysis *5 Appellant contends his counsel performed deficiently
A. Standard of review and applicable law in two respects: (1) by failing to object to the testimony of To prevail on an ineffective-assistance claim, appellant Cynthia Glenn, a juvenile probation officer for Harris must establish (1) trial counsel’s representation fell below County, and (2) failing to object to purportedly improper the objective standard of reasonableness, based on jury argument. prevailing professional norms, and (2) there is a
reasonable probability that the result of the proceeding
would have been different but for counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668, 688–92, 104 S.Ct. 2052, 2065–2067, 80 L.Ed.2d 674 (1984); 726 S.W.2d 53, 55–57 Hernandez v. State, see (Tex.Crim.App.1986) applies to ineffective-assistance claims under Texas Constitution). Strickland (holding standard Glenn testified that, in her role as a juvenile probation [14] officer, she interviews juveniles to obtain a sense of their 1. Failure to object to Glenn’s testimony family and school dynamic. She reviews the juvenile offense tracing (“JOT”) reports to understand what occurred with the juveniles and what they understood. She does not interview them about guilt or innocence. The
We indulge a strong presumption that counsel’s actions interviews help determine if the juvenile should be fell within the wide range of reasonable professional certified as an adult relative to the charges. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 22
Ibarra v. State, --- S.W.3d ---- (2015)
context of an interview. There was no suggestion of In 1997, Glenn reviewed appellant’s JOT concerning a custodial interrogation. See Payne v. State, 579 S.W.2d
robbery in which he was involved. At that interview, 932, 933 (Tex.Crim.App. [Panel Op.] 1979) (holding
Glenn learned appellant pointed a gun at someone to statements made when not in custody are admissible).
commit a robbery of a bicycle and other property.
Appellant stated on the day of the 1997 arrest he was
“high on marijuana” and had “drunk some alcohol.” Prior to this arrest, appellant had been arrested for marijuana possession. Appellant admitted he associated with the Barrio Denver Harbor Click gang. Glenn recalled appellant did not appear to be taking the robbery charge seriously; he stated the gun used in the robbery was not *6 2. Failure to object to jury argument during closing argument when the State mentioned Lastly, appellant complains counsel failed to object [16] information related to prior convictions in the juvenile offense reports.
loaded, so it did not appear to Glenn that his actions were serious or important to him. [18] [17] Closing arguments are made to assist the jury in its analysis of the evidence presented at trial in order to reach could not “admissibly read” from a juvenile offense
First, appellant urges it was “elementary” that Glenn about her conversations with appellant. App. Evid. 801, 802. Even if this testimony were See Tex. R. Crim. report, and it was improper to allow testimony from her improper and would have been excluded upon the punishment phase, appellant’s prior convictions and the evidence offered in the guilt-innocence phase, which was also admitted in the objection of appellant’s counsel, in light of evidence of [4] we conclude that appellant has not [5] of the punishment phase would have been different if this shown that there is a reasonable probability that the result testimony had not been admitted. 390 S.W.3d 341 (Tex.Crim.App.2013). Jury reasonable deductions which can be drawn from the argument may encompass a summation of the evidence, 572, 602–603 (Tex.App.–Houston [14th Dist.] 2010), plea for law enforcement. 270 Brown v. State, (citing See 342 S.W.3d Temple v. State, aff’d a just determination. adduced at trial, asked the jury to consider appellant’s reveals the prosecutor properly summarized the evidence S.W.3d 564, 570 (Tex.Crim.App.2008)). The record evidence, answers to opposing counsel’s argument, and a Id. criminal background in assessing punishment, and responded to opposing counsel’s argument. An attorney’s failure to object to proper argument cannot be ineffective assistance. See Richards v. State, 912 S.W.2d 374, 379
[15] Next, appellant contends counsel should have asked for (Tex.App.–Houston [14th Dist.] 1995, pet. ref’d).
a hearing to test the admissibility under Texas Family In summary, having rejected all of appellant’s ineffective- Code Section 51.095 of appellant’s statements to Glenn. assistance claims, we overrule his third issue. See Tex. Fam. Code § 51.095(b)(1), (2) (West 2011).
Statements of a child are not considered inadmissible if We affirm the trial court’s judgment. the statement does not stem from an interrogation or, if
voluntary and they have a bearing on the credibility of the
child as a witness, or if recorded. See id. Appellant has
not shown these statements were inadmissible. Glenn’s
testimony suggests the statements were made in the
Footnotes
1 See Tex. Penal Code Ann. §§ 22.01(a)(2), (b)(1); 22.02(a)(2), (b)(2)(B) (West 2011) (providing that person commits aggravated assault, as a first-degree felony, if he intentionally and knowingly threatens with imminent bodily injury a person the actor knows is a public servant, while the public servant is lawfully discharging an official duty, and the actor uses or exhibits a deadly
weapon).
2 Appellant attempted to appeal the orders denying motions to recuse in Cause Nos. 14–12–01152–CR and 14–12–00152–CR, which
we dismissed because they were interlocutory. In his appellate brief, appellant makes no complaint about them.
3 Appellant did not raise in his motion for new trial the ineffective-assistance claim. While the general rule is an alleged error must be first brought to the attention of the trial court before it can be heard on appeal, an ineffective-assistance claim will generally not be foreclosed because of an appellant’s inaction at trial. See Robinson v. State, 16 S.W.3d 808, 809 (Tex.Crim.App.2000).
4 1997 robbery (sentence of two years in TDC), 1999 misdemeanor possession of marijuana, and criminal trespass, 2000 misdemeanor possession of marijuana, 2004 felony possession of over 400 grams of cocaine (sentence of 15 years in TDC), and
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 23
Ibarra v. State, --- S.W.3d ---- (2015)
2011 misdemeanor trespass.
5 Evidence included appellant’s harassment of Maldonado, pointing his gun at and running away from police officers, disobeying their orders, firing his gun, and his inability or refusal to take advantage of numerous offers of second chances.
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
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Ibarra v. State, --- S.W.3d ---- (2015)
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 25
[1] Although the Appellant’s name is listed as “Jamie” on the indictment and in the judgment, his pro se motions reveal that his name is “Jaime.” i
[2] See Judgment, which lists time credit as “12/28/2010 to 4/11/2013.”
[3] The court of appeals opinion makes no mention of this motion in its analysis.