Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 9/8/2015 12:16:36 AM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00135-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 9/8/2015 12:16:36 AM CHRISTOPHER PRINE CLERK 01-15-00135-CR In the First Court of Appeals of Texas Pete Rodriguez,
Appellant
v. The State of Texas, Appellee
On Appeal from Cause 1389063 In the 182nd District Court of Harris County Brief for Appellant Oral Argument Requested Franklin Bynum
Texas Bar Number 24069451 franklin@bynumlaw.net Bynum Law Office PLLC 2814 Hamilton Street Houston, Texas 77002 (713) 343-8844 Counsel for Appellant *2 Identity of Parties and Counsel Appellant Pete Rodriguez
SPN 01763152 Harris County Jail 701 North San Jacinto Houston, Texas 77002 Defense Counsel at Trial Mickel Newton, Jr.
PO Box 772914 Houston, Texas 77215 Prosecutor at Trial Stephen Driver
Assistant District Attorney Harris County District Attorney’s Office 1201 Franklin Street, 6th Floor Houston, Texas 77002 Judge Presiding The Honorable Jeannine Barr
182nd District Court 1201 Franklin Street, 18th Floor Houston, Texas 77002 Appellant’s Counsel Franklin Bynum
Bynum Law Office PLLC 2814 Hamilton Street Houston, Texas 77004 *3 Table of Contents Identity of Parties and Counsel ............................................................................ 2
Table of Contents ............................................................................................... 3
Index of Authorities ............................................................................................ 5
Statement of the Case ......................................................................................... 7
Issues ................................................................................................................ 7
Statement of Facts .............................................................................................. 8
Argument ......................................................................................................... 11
Issue One : The trial judge may not give an incorrect admonishment
regarding eligibility for community supervision. In this case, the trial judge
told the defendant that he was not eligible for community supervision from
a jury, when in fact he was, and he relied on the incorrect admonishment
when he elected for court punishment. Was the judge’s incorrect
admonishment harmful error? ............................................................ 11
A. The law authorizes community supervision from a jury here ...... 11
B. The trial judge committed fundamental error when she foreclosed
the possibility of probation ................................................................ 12
C. This is structural error not subject to harm analysis .................... 14
Issue Two : Trial counsel must give accurate advice regarding eligibility for
community supervision. The trial lawyer here incorrectly advised that
community supervision was not available from a jury, and his client relied
detrimentally on that advice. Was trial counsel ineffective for giving
incorrect advice about eligibility for community supervision? ................ 15
A. Strickland requires proof of deficient conduct by preponderance
of the evidence, then proof of prejudice by less than a preponderance
of the evidence .................................................................................. 15
B. Mr. Rodriguez was eligible and would have sought probation had
he been correctly informed about his eligibility ................................. 17
Prayer .............................................................................................................. 18
Certificate of Compliance .................................................................................. 18
Certificate of Service ......................................................................................... 18
Index of Authorities Cases
Arizona v. Fulminante , 499 U.S. 279 (1991) ............................................................. 14
Blue v. State , 41 S.W.3d 129 (Tex. Crim. App. 2000) .............................................. 17
Brumit v. State , 206 S.W.3d 639 (Tex. Crim. App. 2006) ........................................ 14
De Leon v. Aguilar , 127 S.W.3d 1 (Tex. Crim. App. 2004). ...................................... 13
Ex parte Williams , 704 S.W.2d 773 (Tex. Crim. App. 1986) .................................... 13
Harrison v. State , 688 S.W.2d 497 (Tex. Crim. App. 1985) ..................................... 13
Je erson v. State , 803 S.W.2d 470 (Tex. App–Dallas 1991) ..................................... 14
McClenan v. State , 661 S.W.2d 108 (Tex. Crim. App. 1983) .................................... 13
Miniel v. State , 831 S.W.2d 310 (Tex. Crim. App. 1992) .......................................... 16
State v. Recer , 815 S.W.2d 730 (Tex. Crim. App. 1991). ........................................... 17
Strickland v. Washington , 466 U.S. 668 (1984) ................................................... 15, 16
United States v. Gonzalez-Lopez , 548 U.S. 140 (2006) ............................................. 14
Wilkerson v. State , 726 S.W.2d 542 (Tex. Crim. App. 1986) .................................... 15
Statutes
Tex. Code. Crim. Proc. Ann. art. 26.12 (West, WestlawNext through the end of the
84th Legislature). ................................................................................................ 13
Tex. Code. Crim. Proc. Ann. art. 42.12 § 4(d) (West, WestlawNext through the end
of the 84th Legislature). ...................................................................................... 12
Online Sources
John Bradley, ‘Jessica’s Law’ comes to Texas , TDCAA website, 2007,
http://www.tdcaa.com/node/1450. .................................................................... 11
Legislative Materials H.B. 7, 80th Leg. (Tex. 2007) ................................................................................. 11
H.B. 7, introduced version, 80th Leg. (Tex. 2007). ................................................ 11
Statement of the Case A Harris County grand jury indicted Pete Rodriguez on Novem- ber 6, 2013 for indecency with a child. [1] Rodriguez pleaded not guilty and
the case proceeded to jury trial on January 15, 2015. [2] On January 21,
2015, the jury found Rodriguez guilty as charged in the indictment and
the judge imposed a ten-year prison sentence. [3] Rodriguez gave notice of
appeal on February 4, 2015. [4]
Issues Issue One : The trial judge may not give an incorrect admonishment regarding eligibility for community supervision. In this case, the trial judge told the defendant that he was not eligible for community supervision from a jury, when in fact he was, and he relied on the incorrect admonishment when he elected for court punishment. Was the judge’s incorrect admonishment harmful error?
Issue Two : Trial counsel must give accurate advice regarding eligibility for community supervision. The trial lawyer here incorrectly advised that community supervision was not available from a jury, and his client relied detrimentally on that advice. Was trial *8 counsel ine ective for giving incorrect advice about eligibility for community supervision?
Statement of Facts The complainant in this case, whose birthday appears in the rec- ord, [5] described several times when her genitals were touched. The pros-
ecutor asked her what happened in “November 2012” and she said that
Mr. Rodriguez had come into the living room of the apartment—where
she slept on the couch, and others slept nearby—and touched her “mid-
dle part” over her clothes without touching her skin. [6]
The complainant also claimed that Mr. Rodriguez touched her “skin to skin one time” without providing any information about when
that might have happened or providing any other details about how she
was touched that time. [7]
She described the first time she remembers being touched was in “fourth grade,” when she said that he used his “hand” to touch her
“middle part” without saying whether it was over clothes. [8] After fourth
grade, it happened “more than once,” but she did not say how many
times or when. [9]
*9 At a pretrial conference before jury selection and before the de- fendant’s plea and punishment election, the judge said: “So, then if you
go forward with the case as it's charged, it is a second-degree felony, two
years to 20 years in prison. If you’re found guilty, the jury cannot assess
probation. You understand that?” The judge continued:
the court : Okay. And that's because—just so that the record’s clear, Section 42.12, Sec- tion 4(d), as in dog, 5. Because it’s my under- standing that the age of the victim at the time of the o ense was under 14?
[prosecutor] : Yes, Judge.
the court : Okay. And then, to emphasize the point once more: the court : So, I just want to make sure that you understand that, that if in the event that there is a finding of guilt, probation—the jury can’t even give you probation. Do you understand that?
the defendant : Yes, ma’am.
the court : Okay. And is—at this time it is your choice to go forward with the trial?
the defendant : Yes, ma’am. *10 Mr. Rodriguez completed a punishment election selecting jury punishment. [12] He did not file a motion for community supervision. Af-
ter the guilty verdict, Mr. Rodriguez switched his election to judge pun-
ishment, with the State’s consent. [13]
The defense lawyer rested without calling any punishment wit- nesses and without making any argument. [14]
Appellate counsel filed a motion for new trial alleging that the trial lawyer incorrectly advised Mr. Rodriguez that he was not eligible
for community supervision. [15]
The trial court held a hearing on the motion for new trial, by a ffi - davit. [16] The trial court admitted an a ffi davit by the defense lawyer saying
that his understanding was that Mr. Rodriguez was not eligible for com-
munity supervision. [17] Mr. Rodriguez stated in his a ffi davit that he relied
to his detriment on the statements by both his lawyer and the trial judge,
and that had he known he was eligible for community supervision he
would have filed a sworn motion for community supervision and sought
a probated sentence from the jury. [18] Mr. Rodriguez added that he would
*11 have testified on his own behalf had he known he was eligible for com-
munity supervision. [19] The trial court denied the motion for new trial. [20]
Argument Issue One : The trial judge may not give an incorrect admonishment regarding eligibility for community supervision. In this case, the trial judge told the defendant that he was not eligible for community supervision from a jury, when in fact he was, and he relied on the incorrect admonishment when he elected for court punishment. Was the judge’s incorrect admonishment harmful error?
A. The law authorizes community supervision from a jury here In 2007, the Texas Legislature passed, and the governor signed, House Bill 8, known as “Jessica’s Law.” [21] The bill as originally intro-
duced created a new first-degree felony for indecency by contact with a
child under 14, and made the new o ff ense not eligible for community
supervision from a jury. [22] The enrolled version of the bill kept the re-
striction on community supervision, but dropped the new o ense. [23]
*12 And so, the law today is that indecency with a child by contact is a second-degree felony that is eligible for community supervision, un-
less the complainant is under 14. Since the age of the complainant is
not an element of the o ff ense, the mechanism for determining the age
of the complainant—and eligibility for community supervision—is the
same as any other eligibility requirement of 42.12 § 4: the fact issue is
submitted to the jury, and if they found—among other requirements—
that the complainant was 14 or older at the time of the o ff ense, they
would be empowered to probate the sentence.
Since the indictment and the jury charge authorize a conviction for the o ense if it occurred anytime within the limitations period—and
there is no limitations period—the jury would be required to make a
specific finding at punishment regarding the age of the complainant to
probate the sentence.
B. The trial judge committed fundamental error when she foreclosed the possibility of probation This is apparently a case of first impression, regarding a judge’s duty to provide correct information regarding eligibility for community
supervision to a defendant who is pleading not guilty.
*13 There are scores of cases analyzing incorrect information in the context of a guilty plea, and they are unanimous: “a trial court has no
duty to admonish as to the availability of probation,” but if a judge
chooses to admonish regarding eligibility before a plea of guilty, the ad-
monishment must be correct. [26] The source of the judge’s duty to pro-
vide accurate information is the statute providing the procedure for
guilty pleas. [27]
The statutory procedure for not-guilty pleas is far less detailed, of course, because a plea of not guilty does not require waiving any
rights: “If the defendant answers that he is not guilty, such plea shall be
entered.” [28] Yet, if the judge chooses to volunteer information about the
availability of community supervision, that information must be cor-
rect; the source of this duty is foundational principles of Due Process
under the Fifth and Fourteenth Amendments and Due Course of Law
under the Texas Constitution. [29]
Even though probation is not part of the range of punishment, the incorrect admonishment here is analogous to a judge announcing that
*14 she will not consider the full range of punishment, a practice that is
strictly forbidden. [30]
C. This is structural error not subject to harm analysis This case presents a dramatic systemic failure, in which the trial judge, the prosecutor, and the defense lawyer all unwittingly conspired
to deprive Pete Rodriguez of the opportunity to seek community super-
vision from the jury. The ultimate responsibility for this failure rests
with the trial judge, whose incorrect admonishment amounted to sys-
temic error.
This is one of the “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” [31]
Only a few categories of error count as structural defects; the quality
they share is that they a ff ect “the framework within which the trial pro-
ceeds, rather than simply an error in the trial process itself.” [32]
In cases like this, harmless-error analysis fails to be anything but a constitutionally impermissible “speculative inquiry into what might
have occurred in an alternative universe.” [33]
In this case, what would have happened if the judge had an- nounced the correct law, if a jury were selected with questions about
*15 probation, if the defense were made with the aim of making Mr. Rodri-
guez eligible for probation, if Mr. Rodriguez had not changed his pun-
ishment election to the judge from the jury. There are simply too many
inquiries to make for an e ff ective harm analysis. Under Fulminate and
its progeny, this case presents systemic error that requires reversal with-
out a harm analysis.
Issue Two : Trial counsel must give accurate advice regarding eligibility for community supervision. The trial lawyer here incorrectly advised that community supervision was not available from a jury, and his client relied detrimentally on that advice. Was trial counsel ine ff ective for giving incorrect advice about eligibility for community supervision?
Trial counsel prepared the entire defense under the misunder- standing that Mr. Rodriguez was not eligible for community supervi-
sion. His failure to properly advice Mr. Rodriguez was ine ff ective assis-
tance of counsel.
A. Strickland requires proof of deficient conduct by preponderance of the evidence, then proof of prejudice by less than a preponderance of the evidence A defendant in a criminal case is entitled to the reasonably e ec- tive assistance of counsel . Under the standard set out by the United
*16 States Supreme Court in Strickland v. Washington , [35] a defendant seeking
relief as a result of trial counsel’s inept performance must first show that
counsel’s performance was deficient and then demonstrate that this de-
ficient performance prejudiced the defense. [36] Trial counsel’s perfor-
mance is measured against an “objective standard of reasonableness”
evaluated considering “prevailing professional norms.” [37]
The two-part Strickland test carries two distinct burdens of proof: first, the defendant must prove deficient performance by a preponder-
ance of the evidence; second, the defendant must prove that the out-
come may have been di erent, but, importantly, prejudice need not be
proven by a preponderance of evidence. [38] “The result of a proceeding
can be rendered unreliable, and hence, the proceeding itself unfair, even
if the errors of counsel cannot be shown by a preponderance of the evi-
dence to have determined the outcome.” [39]
Applying that framework to this exact situation, the Court of Criminal Appeals requires: 1) evidence that the defendant was initially
eligible to receive probation; 2) that counsel's advice to go to the trial
judge for sentencing was not given as part of a valid trial strategy; 3) that
the defendant's decision to have the judge assess punishment was based
*17 on his attorney’s erroneous advice; and 4) that the defendant's decision
would have been di ff erent if her attorney had correctly informed her of
the law.
B. Trial counsel was ine ff ective because Mr. Rodriguez was eligible and would have sought probation had he been correctly informed about his eligibility Mr. Rodriguez stated in his a ffi davit admitted at hearing on the motion for new trial that he had not been convicted of a felony in this or
any other state, and that he based his decision to not seek probation
based on his lawyer’s faulty advice. He stated that he would have sought
probation had he known then what he knows now. He also stated that
the incorrect advice interfered with his decision to testify in his defense.
Trial counsel has no strategic reason for his action. This is a classic case
of ine ff ective assistance of counsel.
Consider also that ine ff ective assistance may be the preferred procedural method—when available, as it is here—to address claims of
fundamental error.
Mr. Rodriguez need only show a reasonable possibility that the re- sult would have been di ff erent. With a decent defense lawyer putting on
an actual defense, there would have been a reasonable possibility that
the result would have been di erent. The record does not contain much
*18 evidence regarding the dates of the contact, but the jury charge author-
ized, and the jury was free to convict, based on any theory at all within
the limitations period. With a defense that made a sound, strategic at-
tack on the uncertainty regarding dates, there is a reasonable possibility
the result would be di erent.
Prayer Pete Rodriguez prays that this Honorable Court reverse the judg- ment of conviction and remand for a new trial.
Certificate of Compliance The word-processing software used to write this brief reports its length as 2724 words before subtracting for any of the contents that may
be excluded under Rule 9.4(i)(1).
Certificate of Service I provided this brief to the Harris County District Attorney by electronic service to curry_alan@dao.hctx.net simultaneously with the
electronic filing of this document.
Respectfully, /s/ Franklin Bynum Bynum Law Office PLLC Franklin Bynum
2814 Hamilton Street Texas Bar Number 24069451
Houston, Texas 77002 franklin@bynumlaw.net
(713) 343-8844
[1] (C.R. at 16)
[2] (3 R.R. at 128)
[3] (7 R.R. at 5)
[4] (C.R. at 123)
[5] The birthdate appears at Volume 5, Page 23, Line 10 and is not repeated here because the Rules define it as “sensitive data.” Tex. R. App. P. 9.10.
[6] (5 R.R. at 35-37)
[7] (5 R.R. at 38)
[8] (5 R.R. at 53)
[9] (5 R.R. at 54)
[10] (2 R.R. at 6)
[11] (2 R.R. at 6)
[12] (C.R. at 106)
[13] (7 R.R. at 4)
[14] (7 R.R. at 5)
[15] (C.R. at 128)
[16] (1A R.R. at 4)
[17] (C.R. at 158)
[18] (C.R. at 156)
[19] (C.R. at 155)
[20] (1A R.R. at 13)
[21] John Bradley, ‘Jessica’s Law’ comes to Texas , TDCAA website, 2007, http://www.tdcaa.com/node/1450.
[22] H.B. 7, introduced version, 80th Leg. (Tex. 2007).
[23] H.B. 7, 80th Leg. (Tex. 2007).
[24] See Tex. Code. Crim. Proc. Ann. art. 42.12 § 4(d) (West, WestlawNext through the end of the 84th Legislature).
[25] See Id.
[26] Harrison v. State , 688 S.W.2d 497, 499 (Tex. Crim. App. 1985).
[27] Ex parte Williams , 704 S.W.2d 773, 775 (Tex. Crim. App. 1986) (“trial court may impose a duty upon itself under Article 26.13(a)(1) to admonish a defendant accurately as to the availability of probation”).
[28] Tex. Code. Crim. Proc. Ann. art. 26.12 (West, WestlawNext through the end of the 84th Legis- lature).
[29] See McClenan v. State , 661 S.W.2d 108, 109 (Tex. Crim. App. 1983) overruled on other grounds by De Leon v. Aguilar , 127 S.W.3d 1 (Tex. Crim. App. 2004).
[30] See, e.g., Brumit v. State , 206 S.W.3d 639 (Tex. Crim. App. 2006); Je erson v. State , 803 S.W.2d 470, 471 (Tex. App–Dallas 1991).
[31] Arizona v. Fulminante , 499 U.S. 279, 309 (1991).
[32] Id.
[33] United States v. Gonzalez-Lopez , 548 U.S. 140, 150 (2006).
[34] Wilkerson v. State , 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).
[35] 466 U.S. 668, 698 (1984).
[36] Miniel v. State , 831 S.W.2d 310, 323 (Tex. Crim. App. 1992).
[37] Strickland , 466 U.S. at 688.
[38] Id. at 694-96.
[39] Id.
[40] State v. Recer , 815 S.W.2d 730, 731-32 (Tex. Crim. App. 1991).
[41] See Blue v. State , 41 S.W.3d 129, 144 (Tex. Crim. App. 2000) (Keller, P.J., dissenting).