PD-0552-15 June 12, 2015 NO. 24442-A
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
DANNY CALAMACO, PETITIONER
V.
THE STATE OF TEXAS, RESPONDENT
PETITION FOR DISCRETIONARY REVIEW NO. 11-13-00066-CR COURT OF APPEALS FOR THE 11TH DISTRICT OF TEXAS AT EASTLAND
On appeal from Cause Number 24442-A In the 42nd District Court of Taylor County, Texas Honorable John W. Weeks, Judge Presiding _______________________________________________________
Paul W. Hanneman James Eidson Attorney for Petitioner District Attorney Taylor County SBN: 08925500 300 Oak Street 1305 Lamar Street Abilene, Texas 79602 Sweetwater, Texas 79556 325-674-1261 325-235-4777 325-674-1306 - Fax 325-235-4777 – Fax pwhlawoffice@gmail.com
1 Lisa McMinn 11th Court of Appeals Clerk State Prosecuting Attorney Sherry Williamson P.O. Box 13046 P.O. Box 271 Austin, Texas 78711 Eastland, Texas 76448
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
PAGE
INDEX OF AUTHORITIES ……………………………………………. 3
STATEMENT REGARDING ORAL ARGUMENT ………………….. 4
STATEMENT OF THE CASE ………………………………………… 4
STATEMENT OF PROCEDURAL HISTORY ………………………. 5
GROUNDS FOR REVIEW ……………………………………………… 5,6
STATEMENT OF FACTS ……………………………………………… 7
ARGUMENTS AND AUTHORITIES ………………………………. 9,14,16
PRAYER FOR RELIEF ………………………………………………… 23
CERTIFICATE OF SERVICE ...……………………………………….. 24
APPENDIX ……...……………………………………………………….. 26
2 INDEX OF AUTHORITIES
CASES Davis v. State of Alaska; 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (Feb. 27, 1974 Supreme Court of United States) ……...............................19 United States v. Gonzales-Lopez; 548 U.S. 140, 126 S. Ct. 2557, 165 L.Ed.2d 409 (June 26, 2006 Supreme Court of United States)…………... 22 Faretta v. State of California; 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (June 30, 1975)…………………………………………………… 9,10,12,14,20 Gobert v. Court of Criminal Appeals of Texas; 717 S.W.2d 21 (Tex.Crim.App. 1986)……………………………………………………… 20,21 Davis v. State of Texas; 228 S.W.3d 917 (Tex.Crim.App.2007)............... 22 Williams v. State of Texas; 252 S.W.3d 353 (Tex.Crim.App.2008)..10,14,22 Johnson v. United States; 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (May 12, 1997 Supreme Court of United State)………………………... 19,13 Cronic v. United States; 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (Supreme Court of the United States May 1984)……………………….…. 19 Medley v. The State of Texas; 47 S.W.3d 17 (Tex.App. – Amarillo 2000).19 Arizona v. Fulminante;499 U.S. 279, 111 S.Ct.1246, 113 L.Ed.2d 302.19,22 Adams v. United States ex rel. McCann; 317 U.S. at 279, 63 S.Ct., at 242.9 Powell v. State; 632 S.W.2d 354, 355 (Tex. Crim. App 1582) …….…. 10,20 Lewis v. State; 2014 WL 491746 (Tex. App. – Fort Worth Feb. 6, 2014) (mem. Op., not designated for publication), pet. granted, (Tex. Crim App. Sept. 17, 2014) (No. PD-0307-14)……………………………………..……. 16 Calamaco v. State, No. 11-13-00066-CR (Tex. App. Eastland 2015)…………………………………………………………. 5,6,8,13,16,18,21 Johnson v. Zerbst, 304 U.S. at 464-465. 58 S.Ct., at 1023……………..… 9 Vasquez v. Hillery, 474 U.S. 254 106 S.Ct. 617, 818 L.Ed.2d 598 (1986).19 Mckaskle v. Wiggins, 465 U.S. 168, 183-84, 104 S.Ct. 944, 953-54, 79 L.Ed.2d 122 (1984)………………………………………………………….... 19 Heredia v. State, 528 S.W.2d 847 (Tex. Crim. App. 1975)…………… 20,21 Sullivan v. Louisiana, 508 U.S. 275, 282…………………………………… 22
RULES AND STATUTORY PROVISIONS TEX.R.App.Pro.66, et seq. …………………………………………………... 4 TEX.CODE.CRIM.PROC.Art 1.051 ………………………………………… 4
3 STATEMENT REGARDING ORAL ARGUMENT
In the event this petition is granted, the Petitioner requests oral
argument. Argument would assist the Court because resolution of the
grounds for review depends upon a detailed exploration of the facts of the
case. Further, oral argument would provide this Court with an opportunity to
question the parties regarding their positions.
Appellant has raised important questions of first impression in this
Court and believes that oral argument would help clarify the issues
presented in his petition for discretionary review. Therefore, he respectfully
requests oral argument.
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, DANNY CALAMACO, Appellant in this cause, by and
through his attorney of record, Paul W. Hanneman, and, pursuant to the
provisions of TEX.R.App.Pro.66, et seq., moves this Court to grant
discretionary review, and in support will show as follows.
STATEMENT OF THE CASE
4 Appellant was indicted in Cause No. 24,442-A for Murder, with a
deadly weapon allegation and enhanced in a second paragraph with three
prior felony convictions (CR, Vol. 1, 7; 8). On January 24, 2013 the jury
found Appellant guilty (CR, Vol. 1, p. 177) and the Court assessed
punishment at Life confinement in the State penitentiary (CR Vol. 1, p 184;
RR vol. 11, p. 9). Appellant gave timely notice of appeal on February 22,
2013 (CR Vol. 1, p. 194) and also filed a Motion for New Trial (CR Vol. 1, p.
189-193) which, after a hearing was overruled on April 05, 2013 (CR Vol. 1,
p. 204; RR Vol. 12, p. 45).
STATEMENT OF PROCEDURAL HISTORY
The conviction was affirmed in an opinion designated for publication
by the 11th District Court of Appeal. Calamaco v. State, No. 11-13-00066-
CR (Tex. App. Eastland 2015), delivered April 09, 2015. Appellant
requested an extension of time to file a PDR, which was granted. This
petition is due on June 10, 2015, and therefore, it is timely filed.
GROUND FOR REVIEW ONE
5 The Court of Appeals erred when it found that Appellant was properly
admonished regarding his waiver of counsel and granted Appellant’s
waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v. State No. 11-13-
00066-CR, 11th Court of Appeals April 9, 2015, at page 7.
GROUND FOR REVIEW TWO
The Court of Appeals erred when it found that Appellant entered a
knowing, intelligent waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v.
State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 7.
GROUND FOR REVIEW THREE
The Court of Appeals erred when, although it correctly found that the
trial court erred by depriving Appellant of counsel during voir dire, it then
incorrectly found the error to be non-structural error and further erred by
applying a harm analysis to the error. RR Vol. 7, pp. 8-16, 60. Calamaco v.
State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 9.
STATEMENT OF FACTS
6 Prior to Voir Dire in his trial on the charge of Murder in this cause,
immediately after his plea of “Not Guilty” was entered, Appellant, who at the
time was represented by court-appointed counsel, Monte Sherrod,
requested that he be allowed to represent himself. (RR, Vol. 7, p. 8). The
Trial Judge examined Appellant regarding his qualifications. The Court
informed Appellant that if Appellant waived his right to counsel and
represent himself instead, that Appellant could change his mind. The Court
told Appellant “You understand that you can change your mind?” (RR, Vol.
7, p. 13). The trial court judge went further to say; “I mean, if you were to
start to represent yourself you could say, well, this is going not like I
thought it would. It’s harder than I thought it would be. I want to change my
mind and tell the Judge and let Mr. Sherrod start representing me. You
understand that?” (RR, Vol. 7, P. 13).
The trial court judge further admonished Appellant, before the waiver:
“Now listen, I told you you could change your mind. So
be sure and tell me. Don’t just sit there and suffer. It’s not
necessary. Okay? Because you’re going to be missing a
lot of things. And you’ve never done a voir dire and you
don’t even know what to say to them.” (RR, Vol. 7, p. 16)
7 The Trial Judge granted Appellant’s motion to let Appellant represent
himself and brought the jury in. (RR, Vol. 7, p. 18). During his presentation
of the defense’s portion of voir dire, Appellant did in fact change his mind
and asked the Court to “remove my motion to represent myself and ask for
Mr. Sherrod’s representation.” (RR, Vol. 7, p. 60). Appellant stated that he
wanted his attorney to do the voir dire. (RR, Vol. 7, p. 60). The Trial Judge
refused Appellant’s request, and did not let Mr. Sherrod start representing
Appellant but instead required Appellant to complete voir dire before the
Court would allow Appellant to have counsel represent him before the jury.
Mr. Sherrod did not take part in voir dire due to the Trial Judge’s failure to
rule consistently with the admonishment he gave Appellant except that he
was present on “standby”.
GROUND FOR REVIEW ONE RESTATED
The Court of Appeals Erred when it found that Appellant was properly
admonished regarding his waiver of counsel and granted Appellant’s
waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v. State, No. 11-13-
8 ARGUMENT
Review of Ground For Review One is proper because the Court of
Appeals decision has decided an important question of state and federal
law that has not been, but should be settled by the Court of Criminal
Appeals.
Review of Ground For Review One is proper because the Court of
Appeals has decided an important question of state and federal law in a
way that conflicts with the applicable decisions of the Court of Criminal
Appeals and the Supreme Court of the United States.
The Court of Appeals found that the trial court adequately
admonished the Appellant regarding the possible consequences of the
waver of counsel so that Appellant could enter a knowing and intelligent
waiver. In Faretta v. California the U.S. Supreme Court ruled that to waive
the right to counsel the accused must “knowingly and intelligently” forgo
that right, citing, Johnson v. Zerbst, 304 U.S. at 464-465. 58 S.Ct., at 1023.
To that end, the trial court must make the defendant “aware of the dangers
and disadvantages of self-representation, so that he knows what he is
doing and his choice is made with eyes open”, citing Adams v. United
States ex rel. McCann, 317 U.S. at 279, 63 S.Ct., at 242. Faretta v.
9 California 422 U.S. 806 at 835, 95 S.Ct. 2525, 45 L.Ed.2d 562. Faretta
established that part of making the record establish that the defendant
knows what he is doing and his choice is made with eyes open is
admonishing the defendant that he would be required to follow all the
“ground rules” of trial procedure.
The Texas Code of Criminal Procedure provides, in part, that in such
circumstances the trial court shall “advise” the defendant of the “dangers
and disadvantages of self representation”. Tex. Code Crim. Proc. Art.
1.051(g).
When the record does not affirmatively show that the defendant was
sufficiently admonished before defendant’s waiver of counsel is allowed as
is required by Faretta, it is reversible error not subject to harm analysis.
Williams v. State, 252 S.W.3d 353, Powell v. State, 632 S.W.2d 354, 355
(Tex. Crim. App 1582)
At Appellant’s trial the judge advised Appellant, before allowing him to
represent himself, that Appellant could change his mind even if he were to
start representing himself, that he could tell the judge and “let Mr. Sherrod
start representing” Appellant. The Court’s advise referred to Appellant
changing his mind during the voir dire process when he told Appellant:
10 “Now listen, I told you you could change your mind. So be
sure and tell me. Don’t just sit there and suffer. It’s not
But when, following the procedure the judge outlined, Appellant
attempted voir dire on his own and changed his mind, the judge would not
let him have his lawyer back to do voir dire. It is clear from the record that
Appellant believed that the judge would let Mr. Sherrod finished the voir
dire.
“THE DEFENDANT: That’s fine. At this time I would like to
move the court to remove my motion to represent myself and
ask Mr. Sherrod’s representation.
“THE COURT: Do you want him to do the voir dire?
“THE DEFENDANT: Yes, sir.”
(RR Vol. 7, p. 60)
The judge erroneously told Appellant “I can’t” allow Appellant to have
his attorney address the jury on voir dire. (RR Vol. 7, p. 60).
It was not until voir dire was completed, that the judge allowed Mr.
Sherrod to actively participate in the trial by agreeing to excase some
11 potential jurors, then, a jury was sworn and the court recessed for lunch.
When the court re-convened, Appellant once again requested that he be
allowed to “withdraw my motion for self-representation”. The mixed signals
and erroneous instructions to Appellant evidentially confused him about his
right. Mr. Sherrod represented Appellant to the conclusion of the trial.
The issue to be before the Court of Criminal Appeals is that when the
trial court gives such misleading advise (intentionally or not) does that
advise fulfill the requirements of Faretta? The Court did not advise or
admonish Appellant of the danger and disadvantage that the court could,
under some circumstances, deprive Appellant of counsel to prevent the
disruption of the orderly progress of the trial, or perhaps; as the State has
argued; to disallow hybred representation. The court did not advise or
admonish that the Appellant would have to follow the ground rules of
procedure but that the judge might make an error that would deprive
Appellant of counsel during a critical phase of trial and that the court, in
effect did not have to follow the rules of procedure because the judge’s
error might be deemed to be “harmless.”
In short, the trial court told Appellant the law was one thing and then,
after being approached by the Assistant District Attorney, the court decided
the law was another thing and erroneously deprived Appellant of counsel.
12 Appellant was led to believe that the law was that he did not “have to
suffer” without an attorney, that he could change his mind “…and tell the
Judge and let Mr. Sherrod start…” RR Vol. 7, p.13. The Appellate court did
not apply the Faretta standard that a defendant must be advised or
admonished in such a way that if he enters a waiver of counsel so that he
does so having been told of the disadvantages and dangers of self-
representation and that he make a choice with eyes open.
If Faretta is to be modified to allow the trial court to advise a
defendant erroneously on the law or to advise a defendant that the law
protects the defendant in a certain way and then in the same trial to deprive
the same defendant of that protection, then it should be the Court of
Criminal Appeals that delineates standards and limitations on this practice
to guide the courts and the public in the future.
The Eleventh Court of Appeals Erred when it found that Appellant entered a knowing, intelligent waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v. State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 7.
13 ARGUMENT
Review of Ground For Review Two is proper because the Court of
Appeals decision has decided an important question of state and federal
law that has not been, but should be settled by the Court of Criminal
Review of Ground For Review Two is proper because the Court of
Appeals has decided an important question of state and federal law in a
way that conflicts with the applicable decisions of the Court of Criminal
In order for Appellant’s waiver of counsel which was entered before
voir dire commenced at trial herein to have been valid, it must have been
given competently, knowingly, intelligently and voluntarily; it is his
constitutional right to elect to do so and to represent himself. (U.S. Const.,
amend. VI; Tex.Const.Art. 1, Sec 10; Faretta v. California, 422 U.S. 806,
819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Williams v. State, 252 S.W.3d
353, 356 (Tex.Crim.App. 2008)
The Appellate Court in this case found that Appellant knowingly and
intelligently waived his right to counsel prior to voir dire. However, the
record reflects that Appellant could not have given a knowing, intelligent
nor voluntary relinquishment of his right to counsel at this critical phase of
14 trial because he was misinstructed by the Trial Court as to what could and
would happen and was misinformed as to how the law would eventually be
carried out regarding his waiver of right to counsel and further, Appellant
relied on that misinformation to his detriment in waiving his right to counsel.
Because the Court undertook to inform Appellant of the law pertinent
to his decision to have counsel withdrawn and to represent himself and that
information was substantially incorrect and erroneously applied, the
Appellant cannot be said to have given knowing, intelligent, and voluntary
waiver. A defendant should be able to rely on the Court’s advice and here,
Appellant did so to his detriment, his eyes closed by the advice of the trial
court.
Appellant relied on the trial court’s representation that the court would
not commit the error of depriving Appellant of Counsel if Appellant waived
his right to counsel. The trial court then committed the error, depriving
Appellant of counsel during a critical phase of the trial; voir dire. Only if the
trial court had advised Appellant that the court could deprive him of counsel
regardless of the court’s representation that it would not deprive him of
counsel and further that, if the court deprived him of counsel, Appellant
might have no remedy at law because it might be harmless error and then
Appellant decided to go ahead and waive the right to counsel could the
15 waiver have been said to have been entered by Appellate with his eyes
open, aware of the dangers and disadvantages, knowing, intelligently and
voluntarily. If Texas courts are to modify Faretta and it’s progeny, then it
should be the Court of Criminal Appeals that delineates these standards
and which sets limitations on this practice, resolving any conflicts.
The Court of Appeals erred when, although it correctly found that the trial court erred by depriving Appellant of counsel during voir dire, it then incorrectly found the error to be non-structural error and further erred by applying a harm analysis to the error. RR Vol. 7, pp. 8-16, 60. Calamaco v. State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 7.
ARGUMENT
Review of Ground For Review Three is proper because this Court
has recently granted review of a PDR with a similar issue Lewis v. State,
No. 02-12-00246-CR, 2014 WL 491746 (Tex. App. – Fort Worth Feb. 6,
2014) (mem. Op., not designated for publication), pet. granted, (Tex. Crim
App. Sept. 17, 2014) (No. PD-0307-14). The issue presented in the parties’
briefs to the Court of Criminal Appeals in Lewis is whether the proper
16 standard of review on appeal was de novo or abuse of discretion. In Lewis
the trial court denied the defendant’s request for court appointed counsel to
represent him during voir dire and subsequently, throughout trial when he
attempted to withdraw his waiver of court appointed counsel.
Review of Ground For Review Three is proper because the Court of
Appeals’ decision has decided an important question of state and federal
law that has not been, but should be settled by the Court of Criminal
Review of Ground For Review Three is proper because the Court of
Appeals has decided an important question of state and federal law in a
way that conflicts with the applicable decisions of the Court of Criminal
Review of Ground For Review Three is also proper because the
question of whether a partial denial by the trial judge of counsel for a
defendant during voir dire in a criminal trial can ever be “structural error” is
a novel question of law which has not been, but should be, decided by the
Court of Criminal Appeals.
The 11th Court of Appeals found that the trial court erred when it
refused to allow Appellant withdraw his waiver of counsel and allow
appointed counsel to complete the defense portion of voir dire. RR Vol. 7,
17 pp. 8-16, 60. Calamaco v. State No. 11-13-00066-CR, 11th Court of
Appeals April 9, 2015, p 7.
The Court of Appeals then ruled:
“Because Appellant was not totally deprived of
counsel during voir dire, we hold that the error was
not a structural one but, rather, one subject to a
harm analysis.” RR Vol. 7, pp. 8-16, 60. Calamaco
v. State No. 11-13-00066-CR, 11th Court of Appeals April
9, 2015, at page 7.
The Court of Appeals then went on to state:
“We have not found a case in which a court specifically
addresses whether the partial denial of counsel during
voir dire is a structural error that is not subject to a harm
analysis or is a constitutional error that is subject to a harm
analysis.”
This is an issue for the Court of Criminal Appeals because the
converse is also true: undersigned counsel has not found a case that says
partial denial of counsel during voir dire is never a structural error; and in
the case of Mr. Calamaco we contend that a thorough review would show
that the denial was certainly structural error. There are cases werein partial
18 denial of a constitutional right were found to be structural errors. Davis v.
State of Alaska; 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (Feb. 27,
1974 Supreme Court of United States), (cross-examination limited by trial
court) Vasquez v. Hillery, 474 U.S. 254 106 S.Ct. 617, 818 L.Ed.2d 598
(1986) (unlawful exclusion of only certain grand jurors based on race). A
more extensive briefing may reveal other cases.
The “erroneous denial of counsel bears directly on the framework
within which the trial proceeds” United States v. Gonzales-Lopez; 548 U.S.
140, 126 S. Ct. 2557, 165 L.Ed.2d 409 (June 26, 2006 Supreme Court of
United States), citing Fulminante.
In it’s analysis of whether or not the denial of Mr. Calamaco’s right to
counsel was structural, the Court of Appeals also relied on the fact that the
trial court had given Mr. Calamaco a “standby counsel” to support it’s
ruling. This reasoning conflicts with earlier rulings that “standby counsel”
does not equate to counsel for his defense to which a defendant is entitled
by the Sixth Amendment”, Medley v. The State of Texas; 47 S.W.3d 17
(2000), Mckaskle v. Wiggins, 465 U.S. 168, 183-84, 104 S.Ct. 944, 953-54,
79 L.Ed.2d 122 (1984). In it’s opinion in Cronic v. U.S., the U.S. Supreme
Court stated that “although counsel is available to assist the accused” that
there are occasions when a presumption of prejudice is appropriate without
19 a harm analysis. Cronic v. United States; 466 U.S. 648, 104 S.Ct. 2039, 80
L.Ed.2d 657 (1984) Powell v. Alabama 287 U.S. 45, 53, S.Ct 55 77 L.Ed
158 (1932).
In it’s analysis of whether the error was structural error the Appellate
Court “jumped the gun” and inquired into whether the Appellant was
harmed by the error before fully examining the nature of the violation of the
6th Amendment. The Court of Appeals did not fully analyze whether the
error amounted to a structural defect affecting the framework in which trial
proceeded, and cut short the examination of the error to which Appellant is
entitled Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d
562 (1975) p. 310, citing Gorbert v. State, 717 S.W.2d 21, 24 (Tex. Crim.
App. 1986). Instead of fully examining the nature and effect of the error, the
Court of Appeals took a shortcut, citing Gorbert. In Gorbert it is not clear
how long the defense attorney was not present during voir dire, but only
that his absence was “partial”. It is clear, however, that the absence of
defense counsel in Gorbert was only during part of the State’s examination
of the panel and not, as it was in Appellant’s trial, during the defense
examination. Gorbert at p. 23. In Gorbert the Court of Criminal Appeals
relied on Heredia which found no deprivation of right to counsel in a trial
where defense counsel was absent for only “two or three minutes” of the
20 State’s examination of a potential juror. Heredia v. State, 528 S.W.2d 847
(Tex. Crim. App. 1975)
In both Gorbert and Heredia the Court of Criminal Appeals found
there was no deprivation of the right to counsel. In Mr. Calamaco’s is
distinguished because in this case we come to the Court of Criminal
Appeals with a finding from the 11th Court of Appeals that the 42nd District
Court committed error by depriving the Appellant of his Right to Counsel in
violation of the Sixth Amendment to the United States Constitution.
Calamaco v. State, No. 11-13-00066-CR (Tex. App. Eastland 2015) p. 7
Calamaco is further distinguished from other partial absence of
counsel cases in that Mr. Calamaco’s entire voir dire of the jury panel was
very, very brief; it is so short that it consumes only about seven pages of
the Court Reporter’s record. RR Vol. 7, pp. 54-61.
The Court of Appeals’ determination that the error was non-structural
ignored a standard for distinguishing structural errors from non-structural
errors. To apply a harm analysis to a structural error, the court’s have
ruled, would be to speculate as to any harm done, and the courts must not
engage in such speculation. In cases of non-structural error the effect of
the error is quantifiable. The Court of Appeals overlooked that important
distinction between structural and non-structural error.
21 The error found by the Court of Appeals of depriving Appellant of
counsel affects the framework in which the trial proceeds and is not simply
an error in the trial process itself. Arizona v. Fulminante, 499 U.S. 279, 111
S.Ct.1246, 113 L.Ed.2d 302. In United States v. Gonzales-Lopez the U.S.
Supreme Court, ruling that a Sixth Amendment violation was not subjected
to harmless error analysis, said “erroneous deprivation of the right to
counsel of choice with consequences that are necessarily unquantifiable
and indeterminate unquestionably qualifies as “structural error” Gonzales-
Lopez, citing Sullivan v. Louisiana, 508 U.S. 275, 282.
“It is impossible to know what different choices the
rejected counsel would have made, and then to quantify the
impact of those different choices on the outcome of the
proceedings. … Harmless-error analysis in such a context
would be a speculative inquiry into what might have occurred in
an alternate universe.” Gonzales-Lopez at 150, se also Davis v.
State of Texas; 228 S.W.3d 917 (Tex.Crim.App.2007), Williams
v. State of Texas; 252 S.W.3d 353 (Tex.Crim.App.2008)
This ground should be more fully briefed so the Court of Appeals can
make this decision important to the conduct of trials in the lower courts of
Texas.
22 PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
prays that this Court grant discretionary review and, after full briefing on the
merits, issue an opinion reversing the Court of Appeals’ judgment and
remanding the cause to the trial court for a new trial.
Appellant respectfully prays that this Court grant review and, after full
briefing on the merits, issue an opinion resolving these important issues so
that the bench and bar of this state will know how to address similar issues
in the future.
Appellant respectfully prays that this Court issue an opinion reversing
the Court of Appeals’ judgment and remanding this cause to the Court of
Appeals for full and complete consideration of the issue of whether the
error of denial of counsel found by the Court of Appeals was a structural
error.
23 Respectfully submitted,
_______________________ Paul W. Hanneman Attorney for Appellant 1305 Lamar Street Sweetwater, Texas 79556 State bar No. 00895500 pwhlawoffice@gmail.com (325) 235-4777
CERTIFICATE OF SERVICE
I hereby certify, by affixing my signature above, that a true and
correct copy of the foregoing Petition for Discretionary Review, was mailed
through the U.S. Postal Service to James Edison, Office of the Taylor
County District Attorney, 300 Oak Street, Abilene, Texas 79602, and was
mailed to Lisa McMinn, State Prosecuting Attorney, P.O. Box 13046,
Austin, Texas 78711, by U.S. Postal Service.
24 Paul W. Hanneman Attorney At Law
1305 Lamar Street Telephone: (325) 235-4777 Sweetwater, Texas 79556 Fax: (325) 235-4777 pwhlawoffice@gmail.com
Certificate of Compliance
I certify that this Petition For Discretionary Review, a computer generated document, and according to the word count function, this document contains a total of 4,752 words, 3,726 words that are contained in the body of the document, (which does not include caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix) pursuant Tex.R.App.Pro. 9.4 (i)(1), 9.4 (i)(2)(D), this document is printed in a 14-point font.
Paul W. Hanneman
25 ___________________________________________________________ _________________________APPENDIX_________________________
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