Case Information
*0 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 6/11/2015 4:57:37 PM CECILE FOY GSANGER Clerk *1 ACCEPTED 13-14-00087-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 6/11/2015 4:57:37 PM CECILE FOY GSANGER CLERK No. 13—14—00087—CR IN THE TEXAS COURT OF APPEALS THIRTEENTH DISTRICT AT CORPUS CHRISTI / EDINBURG ROSS ALLEN HARTWELL v. THE STATE OF TEXAS Appeal from Cause Number D-1-DC—13—904031 Transferred from the Third Court of Appeals, No. 03—13—00825—CR 390 th Judicial District Court, Austin, Travis County, Texas Honorable Bob Perkins, Visiting Judge Presiding APPELLANT’S REPLY BRIEF TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
Comes now Appellant Ross Allen Hartwell, by and through his appointed counsel Paul M. Evans, and files this, his Appellant‟s Reply Brief, in compliance
with the Texas Rules of Appellate Procedure.
Respectfully submitted, ___/s/ Paul M. Evans_____________ Paul M. Evans Attorney for Appellant 811 Nueces Street Austin, Texas 78701 (512) 569-1418 (512) 692-8002 FAX paulmatthewevans@hotmail.com SBN 24038885 *2 Table of Contents
Table of Contents 3
Index of Authorities 3
Reply to Appellee‟s “Reply Point Two” [Appellant‟s 3
Issue Number Two]
Prayer 6
Certificate of Service 6
Certificate of Compliance 7
Index of Authorities Texas State Statutes
Code of Criminal Procedure §35.16………………………………………......3
Code of Criminal Procedure §35.21……………………………………...…...4
Code of Criminal Procedure §35.22……………………………………...…3-4
Texas Cases
Jackson v. State , 877 S.W.2d 768 (Tex.Crim.App. 1994)…………………….4
Robinson v. State , 16 S.W.3d 808 (Tex.Crim.App.2000)……………….….....5
Smith v. State , No. 03-07-00392-CR, 2009 Tex. App. LEXIS 5468
(Tex.App.—Austin 2009, pet. ref‟d)……..………………………….………..4
Thompson v. State , 9 S.W.3d 808 (Tex.Crim.App.1999)………….…….……5
Reply to Appellee’s “Reply Point Two” [Appellant’s Issue Number Two] The State has made the following assertion in the Appellee‟s Brief regarding Jury Panelist No. 2 (Rodriguez), whose service on the jury forms the heart of
Appellant‟s claim of ineffective assistance of counsel, raised as Issue Number Two
in the Appellant‟s brief:
“As an initial matter, the State asserts that Rodriguez was not subject to a challenge for cause simply because he agreed that he would be disturbed by graphic evidence. See Tex. Code Crim. Proc. Art. 35.16 (listing challenges for cause).”
Appellee‟s Brief at 23; see Appellant‟s Brief at 13, 44-51.
Rodriguez not only stated he would “be disturbed by graphic evidence.” He clearly and eloquently expressed that such evidence would keep him from being
fair and objective. RR6 147-9. Tex. Code Crim.Proc. § 35.16 (c)(1) provides that
the defense may make a challenge for cause when a panelist “has a bias or
prejudice against any of the law applicable to the case upon which the defense is
entitled to rely, either as a defense to some phase of the offense for which the
defendant is being prosecuted or as a mitigation thereof or of the punishment
therefor.” Appellant would argue that Rodriguez‟s answers demonstrate that he
would not be able to follow the oath of the jury, as provided by Tex. Code
Crim.Proc. § 35.22: “When the jury has been selected, the following oath shall be
administered them by the court or under its direction: „You and each of you do
solemnly swear that in the case of the State of Texas against the defendant, you
will a true verdict render according to the law and the evidence, so help you God.‟”
Evidently the trial court agreed with this position, as the five panelists who agreed
with Rodriguez‟s opinion were in fact discharged after they were challenged for
cause. RR6 149-55, 169-75. As provided by Tex. Code Crim.Proc. § 35.21, “[t]he
court is the judge, after proper examination, of the qualifications of a juror.”
The State has supported its argument by citing Jackson v. State , 877 S.W.2d 768, 769 (Tex.Crim.App. 1994) and Smith v. State , No. 03-07-00392-CR,
2009 Tex. App. LEXIS 5468, at *1-15 (Tex.App.—Austin 2009, pet. ref‟d)
(mem.op., not designated for publication). In both cases, the juror in question
mentioned only a probability of bias. In neither case did the panelist in question
express him or herself as emphatically as Rodriguez did in the instant cause.
Further, also unlike these two cases cited by the State, trial counsel‟s strategy in the instant cause was readily apparent from her voir dire presentation: to
remove any juror who felt that the ability to be fair and objective would be
compromised by the presentation of graphic evidence. See RR6 138-69. No
speculation as to strategy is required. Without citation to authority, the State makes
the assertion, “it looks like keeping Rodriguez on the panel was a strategic decision
because trial counsel did not use all of her peremptory challenges.” Appellee‟s
Brief at 25. If trial counsel felt as a matter of strategy that her other available
options were even worse than Rodriguez, it would make much more sense if trial
counsel had in fact exercised all of her allotted strikes.
Appellant would also point out that in Reply Point Eight, the State has essentially conceded that trial counsel failed to adequately investigate and research
the validity of one of the enhancement paragraphs of the indictment prior to trial.
See Appellee‟s Brief at 40-7.
While Appellant presently stands by all of the issues presented in the Appellant‟s Brief, Appellant urgently prays that this Court recognize the instant
cause as “the rare case where the record on direct appeal is sufficient to prove that
counsel‟s performance was deficient,” and as such, this Court “should obviously
address the claim in the first instance.” Robinson v. State , 16 S.W.3d 808, 813 n. 7
(Tex.Crim.App.2000), citing Thompson v. State , 9 S.W.3d 808, 814
(Tex.Crim.App. 1999).
PRAYER
WHEREFORE, PREMISES CONSIDERED, for the reasons stated above, Appellant prays that this Court find his conviction to be in error, and that this
Court reverse the judgment of conviction and remand the cause to the trial court
for a new trial. Appellant prays for all other general relief to which he may be
entitled.
Respectfully submitted, __/s/ Paul M. Evans__________ Paul M. Evans 811 Nueces Street Austin, Texas 78701 (512) 569-1418 (512) 692-8002 FAX SBN 24038885 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Appellant‟s Brief was delivered by e-service facsimile to the office of the District
Attorney of Travis County, on the 11 h day of June, 2015.
___/s/ Paul M. Evans_____________ Paul M. Evans *7 CERTIFICATE OF COMPLIANCE Relying on the Microsoft Word 97-2003 Document word count utility, I hereby certify that the present document contains 1055 words, all contents
included.
___/s/ Paul M. Evans_____________ Paul M. Evans