Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 8/19/2015 10:11:00 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-14-00220-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 8/18/2015 11:11:55 PM DEBBIE AUTREY CLERK
NO. 06-14-00220-CR
____________________________________________________________
IN THE COURT OF APPEALS SIXTH DISTRICT
AT TEXARKANA, TEXAS ____________________________________________________________
SHAHID KARRIEM ANSARI,III, APPELLANT V.
THE STATE OF TEXAS, APPELLEE ____________________________________________________________
APPEAL IN CAUSE NUMBER 27,739 IN THE 354 TH JUDICIAL DISTRICT COURT OF HUNT COUNTY, TEXAS ____________________________________________________________
BRIEF FOR APPELLANT ____________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes now the Counsel for Appellant and submits this brief pursuant to the provisions of the Texas Rules of Appellate Procedure.
IDENTITY OF PARTIES AND COUNSEL Appellate Attorney:
Jason A. Duff
2615 Lee Street
P.O. Box 11
Greenville, Texas 75403
Appellant’s Trial Attorney:
Christopher L. Castanon
200 E. Lamar Blvd., Suite 600
Arlington, TX 76006
Appellee:
The State of Texas by and through
Lauren Hudgeons
Asst. Hunt County District Attorney
4 th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401
TABLE OF CONTENTS Identity of the Parties and Counsel ............................................................. 2
Table of Contents ....................................................................................... 3
Index of Authorities ..................................................................................... 4
Statement of the Case ................................................................................ 5
Statement of the Facts ................................................................................ 6
Issues and Authorities ................................................................................. 7
Ineffective Assistance of Counsel .................................................. 7 Conclusion and Prayer for relief ................................................................ 14
Certificate of compliance of typeface and Word Count ............................. 15
Certificate of Service ................................................................................. 16
INDEX OF AUTHORITIES FEDERAL CASE:
Strickland v. Washington , 466 U.S. 668 (1984) ........................................... 8
STATE CASES:
Blott v. State , 588 S.W.2d 588, 592 (Tex. Crim. App. 1979) ....................... 8
Cannon v. State , 668 S.W.2d 401, 403 (Tex. Crim. App. 1984) .................. 7
Eddie v. State , 100 S.W.3d 437 (Tex.App. — Texarkana 2002) ................. 10
Ex parte Moore , 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) ................... 8
Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) ............ 7
Hall v. State , 161 S.W.3d 142, (Tex. App. —Texarkana 2005, pet. ref’d ) … ..8
Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) .................. 7
Tong v. State , 25 S.W.3d 707, 712 (Tex. Crim. App. 2000) ........................ 8
Toupal v. State, 926 S.W.2d 606, 608 (Tex.App.-Texarkana 1996,
no pet.) ..................................................................................................... 10
Wallace v. State , 75 S.W.3d 576, 589 (Tex. App. — Texarkana 2002) ......... 8
STATE STATUTES
TEX. HS. CODE ANN §481.121 (Casemaker 2015) ................................... 9
TEX. PEN. CODE ANN §36.06(c) (Casemaker 2015) ................................ 9
STATEMENT OF THE CASE This is an appeal of the judgment and sentence in a criminal case for the 354 th Judicial District, in Hunt County, Texas. Appellant originally Plead
Guilty and signed a Judicial confession of the crime of Burglary of
Habitation on July 3, 2012. The court honored a plea bargain and
assessed Appellant 6 years deferred probation. The state file a Motion to
revoke on April 16, 2013 and the trial court sentenced Appellant to 90 day
confinement in the Hunt County Jail as a sanction and dismissed that
motion to revoke on August 1, 2013. (CR Vol. 1 p. 92). A final motion to
revoke hearing was held on November 20, 2014, and the trial court
sentence Appellant to 7 years TDCJ.
Notice of appeal was given on November 26, 2014 in the trial court.
The reporter’s record was filed on May 21, 2015
STATEMENT OF THE FACTS Plead Guilty and signed a judicial confession of the crime of Burglary of Habitation on July 3, 2012. The court honored a plea bargain and
assessed Appellant 6 years deferred probation.
Attorney Chris Castanon was appointed for appellant on November 6, 2014. (CR Vol. 1 p. 119). The State filed an amended Motion to revoke on
November 13, 2014. (CR Vol. 1 p. 121). That same day Attorney
Castanon informed the Court that Appellant would be pleading true to
Paragraphs 1, 2, and 6 of the amended Motion to revoke. (RR Vol. 18 p. 5-
7). The trial court conducted a brief hearing on November 20, 2014.
ISSUE AND AUTHORITIES Ineffective Assistance of Counsel Any allegation of ineffectiveness of counsel must be firmly founded in the record. Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App.
2005); Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999);
Wallace v. State , 75 S.W.3d 576, 589 (Tex. App. —Texarkana 2002), aff’d,
106 S.W.3d 103 (Tex. Crim. App. 2003). Appellant bears the burden of
proving that counsel was ineffective by a preponderance of the evidence.
Goodspeed , 187 S.W.3d at 392; Thompson , 9 S.W.3d at 813; Cannon v.
State , 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). A reviewing court will
rarely be provided the opportunity to make its determination on direct
appeal with a record capable of providing an evaluation of the merits of the
claim involving ineffective assistance claims. Thompson , 9 S.W.3d at 813.
Granted, “ [i]n the majority of instances, the record on direct appeal is
simply undeveloped and cannot adequately reflect” the reasoning of tr ial
counsel. Id. at 813 – 14.
Nonetheless the two-pronged Strickland test handed down by the United States Supreme Court to determines whether Defendant received
ineffective assistance of counsel. Strickland v. Washington , 466 U.S. 668
(1984).
First, Defendant must show that counsel’s performance fell below
an objective standard of reasonableness in light of prevailing professional
norms. Strickland , at 687 – 88. It is true, that here is a strong presumption
that counsel’s conduct fell within the wide range of reasonable professional
assistance and that the challenged action could be considered sound trial
strategy. Id . at 689; Tong v. State , 25 S.W.3d 707, 712 (Tex. Crim. App.
2000). Therefore, courts will not second-guess the strategy of trial counsel
at trial through hindsight. Blott v. State , 588 S.W.2d 588, 592 (Tex. Crim.
App. 1979); Hall v. State , 161 S.W.3d 142, 152 (Tex. App. — Texarkana
2005, pet. ref’d).
Second, Strickland ’s prejudice prong requires a showing that but for counsel’s unprofessional error, there is a reasonable probability that the
result of the proceeding would have been different. Strickland , 466 U.S. at
687 –88. A “reasonable probability” is a probability sufficient to undermine
confidence in the outcome, meaning t hat counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.
Smith , 286 S.W.3d at 340. Strickland requires the applicant to establish, by
a preponderance of the evidence, that the harm resulting from trial
counsel's deficiency undermines the confidence in the trial's outcome. Ex
parte Moore , 395 S.W.3d 152, 157 (Tex. Crim. App. 2013).
Ineffectiveness through failure to develop a defense
In a case such as this, Appellant can find no prevailing professional norm that would justify not eliciting mitigating evidence either from the
Appellant or other witness. Moreover no sound trial strategy could justify
the lack of not even eliciting evidence of probation on other charges or how
long he would be on probation severity of the charges. It is apparent from
the record that trial counsel made no meaningful investigation into the facts
of the case.
Trial Counsel for the Appellant spent a mere page and a half of cross examination of the state ’ s only witness at the motion to revoke hearing.
Appellant gave testimony for approximately 6 pages in the record.
In this case the State alleged a marijuana charge that appears from the record, is a state jail felony, and is far less than the sentence imposed
in this case. TEX. HS. CODE ANN §481.121 (Casemaker 2015).
Moreover the state also alleged that Appellant committed an offence of obstruction, as alleged appears to be a third degree felony in this case,
again a potentially lesser sentence. (CR Vol. 1 p. 121), TEX. PEN. CODE
ANN §36.06(c) (Casemaker 2015).
Counsel merely asked how many children Appellant has, and what their ages were. (RR Vol. 19 p. 15). Counsel made no inquiry as to the
duties or other responsibilities he had as they related to the children.
Granted this Court has previously found that in a guilty plea, counsel need not undertake the same magnitude of independent factual
investigation when the defendant knowingly and voluntarily pleads guilty to
the alleged offense as would be required in a contested proceeding. Toupal
v. State, 926 S.W.2d 606, 608 (Tex.App.-Texarkana 1996, no pet.).
Similarly, where a defendant pleads "true" to allegations, Courts hold that
failure to conduct a full-fledged independent investigation of the facts does
not necessarily result in counsel rendering constitutionally ineffective
assistance. Eddie v. State , 100 S.W.3d 437 (Tex.App. — Texarkana 2002).
Yet, the allegation that Appellant committed an offence of possession of marihuana first appears in the state ’ s Amended Motion to revoke that
was only filed on November 13, 2014. This new allegation occurred only
eight days after trial counsel was appointed and made at trial counsel ’ s first
court appearance. At the November 13, 2014 the trial court inquired the
status of the “ December 13, 2013 and the July 31 st of 2014 ” allegations a
break was held and the Appellant plead true. (RR Vol. 18. p. 4-6) Without
asserting that a full-fledged independent investigation of the facts was
necessarily needed; no meaningful investigation could have occurred at a
break. Moreover the final hearing was a mere week later, and trial counsel
could not have made a meaningful basic investigation to prepare a defense
or gather mitigating evidence.
Trial counsel's deficiency undermines the confidence in the trial's outcome by a preponderance of the evidence because the lack evidence to
counter the state’s allegations created a completely unlevelled playing field
in favor of the state. Therefore Appellant was given effective assistance of
counsel.
Ineffectiveness through Failure to object revocation base on paragraph six.
In the State ’s “Second Amended Motion for Revoke Community Supervision” they allege in relevant part:
“ 1. Said defendant on or about the 13th day of December 2013, in the County of Dallas State of Texas, did intentionally obstruct a person he
knew to be a peace officer, namely Matthew Elliott, a officer by Dallas
Marshall’s Office from effecting an arrest, search or transport of defendant
by using force against the peace officer.
2. Said defendant on or about the 31st day of July 2014, in the County of Dallas, State of Texas, did intentionally and knowingly possess a
usable quantity of marihuana in an amount of five pounds or less but more
than 4 ounces.
6. Said defendant failed to complete Anger Management Class as ordered by the Court. ”
(CR Vol. 1. P.107-08).
Though Appellant ’ s probation was revoked, at least in part, for not completing an anger management course. The trial court ’ s order broadly
states in paragraph 19, “ Other Conditions: ANGER MANAGEMENT
CLASSES. ” (CR Vol. 1 p. 47). It is not specifically ordered to take anger
management classes by any time that is enforceable. The trial courts order
on anger management classes does not specify how may classes to take
or even a minimum number of hours that are needed to comply.
It is true that Appellant did admit to not taking an anger management class related to this probation, but there is no indication he was on notice
what and when he was supposed to complete. (RR Vol. 19 p. 12)
Appellant, by the terms of the Judgment setting out the terms of community supervision still could have otherwise be in compliance with the
with that portion of the order of community supervision. Thus, trial counsel
clearly failed to elicit testimony or even argue against that allegation which
had a reasonable probability to undermine the outcome of seven years
TDCJ.
Strickland’s prejudice prong
But for trial counsel’s unprofessional error s, there is a reasonable probability that the result of the proceeding would have been different.
The trial court’s statement was a n unambiguous indication that had defendant complied with some of the terms of his probation, a lesser
sentence would have been likely. Therefore if it not for trial counsel ’ s error
a different outcome would have been likely.
PRAYER FOR RELIEF
Wherefore, premises considered, Appellant respectfully prays that his revocation of community supervision in the above entitled and numbered
cause be reversed and remanded for a new hearing. Appellant further
prays for all other lawful relief to which he may be entitled, at law or in
equity.
Respectfully submitted, /s/ Jason A. Duff ______ Jason A. Duff State Bar No. 24059696 2615 Lee Street P.O. Box 11 Greenville, TX 75403 Attorney for the Appellant *15 CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT
In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the undersigned attorney or record certifies that Appellants Brief
contains 14-point typeface of the body of the brief, 12-point typeface for
footnotes in the brief and contains 1,418, excluding those words identified
as not being counted in appellate rule of procedure 9.4(i)(1), and was
prepared on Microsoft Word 2010.
____/s/ Jason A. Duff ____ _________
Jason A. Duff
Attorney for the Appellant
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to Sixth Court of Appeals, Texarkana, Texas and
to Hunt County Attorney Joel D. Littlefield, on this the 18 th day of August,
2015, by Electronic Filing and Service.
___/s/ Jason A. Duff _________
Jason A. Duff
Attorney for the Appellant