WR-81,360-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/26/2015 12:05:43 PM Accepted 5/26/2015 12:47:21 PM May 26, 2015 ABEL ACOSTA IN THE COURT OF CRIMINAL APPEALS CLERK OF TEXAS
EX PARTE § § § NO. WR-81,360-01 § DERRICK KEITH COOKE §
11.07 APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NUMBER C-1-009379-08496383-A IN THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY, TEXAS; THE HONORABLE ELIZABETH BEACH, JUDGE PRESIDING.
§§§
STATE’S BRIEF
SHAREN WILSON Criminal District Attorney Tarrant County, Texas
DEBRA WINDSOR, Assistant Criminal District Attorney Chief of Post-Conviction
ANDRÉA JACOBS, Assistant Criminal District Attorney 401 W. Belknap Fort Worth, Texas 76196-0201 (817) 884-1687 FAX (817) 884-1672 State Bar No. 24037596 IDENTITY OF PARTIES AND COUNSEL
For convenience of the Court, the State provides the following list of all trial and appellate counsel: Applicant: Original Plea Proceedings Jeffery D. Gooch 2315 N Main St, Ste 320 Fort Worth, TX 76164
Adjudication Proceedings J. Don Carter 3663 Airport Fwy Fort Worth, TX 76111
Appeal Robert “Bob” Ford Deceased
Post-Conviction Writ John Stickels P.O. Box 121431 Arlington, Texas 76012
Respondent: Original Plea Proceedings Tim Curry, District Attorney Amy Collum Adjudication Proceedings Phelesa M. Guy Appeal Kimberly C. Wesley
Post-Conviction Writ Joe Shannon, Jr. District Attorney Sharen Wilson, District Attorney Andréa Jacobs 401 W. Belknap Fort Worth, Texas 76196
Court: Plea Proceeding Hon. Sharen Wilson Criminal District Court No. 1 401 W. Belknap Fort Worth, Texas 76196
i Post-Conviction Writ Hon. Elizabeth Beach Criminal District Court No. 1 401 W. Belknap Fort Worth, Texas 76196
ii TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL . . . . i
INDEX OF AUTHORITIES . . . . . . . v
STATEMENT OF THE CASE . . . . . . 2
RESPONSES TO REQUESTED ISSUES . . . . . 4
WHETHER AN APPLICANT IS SUFFERING COLLATERAL CONSEQUENCES IS A JURISDICTIONAL QUESTION; THEREFORE, THE COURT SHOULD ANSWER THAT QUESTION BEFORE LOOKING TO THE MERITS OF THE CLAIM.
APPLICANT’S APPLICATION SHOULD BE GRANTED AND HIS CONVICTION VACATED BECAUSE APPLICANT’S SENTENCE FOR A THIRD DEGREE FELONY WAS ILLEGAL.
FAILURE TO OBJECT TO THE USE OF THE NEW MEXICO PRIOR CONVICTION FOR ENHANCEMENT IN THIS CASE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE ISSUE WAS NOT WELL CONSIDERED AND CLEARLY DEFINED.
STATEMENT OF FACTS . . . . . . . 5
SUMMARY OF THE ARGUMENT . . . . . . 7
ARGUMENTS AND AUTHORITIES . . . . . 8
iii Requested Issue 1: Whether Applicant is suffering collateral consequences given the fact that even if the present assault had not been elevated to a third degree felony, as a Class A misdemeanor, it could have elevated the assault in Applicant’s Hood County case to a third degree felony.
I. WHETHER AN APPLICANT IS SUFFERING COLLATERAL CONSEQUENCES IS A JURISDICTIONAL QUESTION; THEREFORE, THE COURT SHOULD ANSWER THAT QUESTION BEFORE LOOKING TO THE MERITS OF THE CLAIM.. . . . . 8
II. APPLICANT’S APPLICATION SHOULD BE GRANTED AND HIS CONVICTION VACATED BECAUSE APPLICANT’S SENTENCE FOR A THIRD DEGREE FELONY WAS ILLEGAL. . 10
Requested Issue 2: Whether counsel was ineffective for failing to object to the New Mexico conviction.
III. FAILURE TO OBJECT TO THE USE OF THE NEW MEXICO PRIOR CONVICTION FOR ENHANCEMENT IN THIS CASE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE ISSUE WAS NOT WELL CONSIDERED AND CLEARLY DEFINED. . . . . . . . 12
CONCLUSION AND PRAYER. . . . . . 16
CERTIFICATE OF SERVICE. . . . . . . 17
CERTIFICATE OF COMPLIANCE. . . . . . 18
iv INDEX OF AUTHORITIES
CASES PAGE
United States Supreme Court
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . 13, 16
Texas Court of Criminal Appeals
Chiarini v. State, 442 S.W.3d 318 (Tex. Crim. App. 2014). . . . . . . 10
Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005). . . . . . . 14, 15
Ex parte Cooke, No. WR-81,360-01, 2015 WL 831620 (Tex. Crim. App. Feb. 25, 2015). . . . . 3
Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002). . . . . . . 8
Ex parte Harrington, 310 S.W.3d 452. . . . . 9
Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013). . . . . . . 11-12
Ex parte Pena, 71 S.W.3d 336 (Tex. Crim. App. 2002). . . . . . . 11
Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). . . . . . . 12
Ex parte Smith, 296 S.W.3d 78 (Tex. Crim. App. 2009). . . . . . . 14
v Garcia v. State, 145 S.W.2d 180 (Tex. Crim. App. 1940). . . . . . . 13
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). . . . . . . 13
Johnson v. State, 691 S.W.2d 619 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985). . . . . 13
Lower Courts
Collesano v. State, No. 01–01–00984–CR, 2002 WL 2026055 (Tex. App. – Houston [1st Dist.] Aug. 29, 2002, pet. ref’d). 15
Cooke v. State, No. 02-08-026-CR, 2009 WL 3078405 (Tex. App. – Fort Worth Sept. 21, 2009, pet. ref’d). . 2-3
Goodwin v. State, 91 S.W.3d 912 (Tex. App. – Fort Worth 2002, no pet.). . . . . 15
Mitchell v. State, 821 S.W.2d 420 (Tex. App. – Austin 1991, pet. ref’d). . . . . 10, 14
State v. Cagle, 77 S.W.3d 344 (Tex. App. – Houston [14th Dist.] 2002, pet. ref’d). . . 15
Out-of-State Cases
Goulder v. Ariz. Dept. of Trans., Motor Vehicle Div., 877 P.2d 280 (Ariz. 1994). . . . . . 10-11
People v. Gagne, 485 N.Y.S.2d 938 (N.Y. Co. Ct. 1985). . . . . . . 10-11
vi State v. Nelson, 910 P.2d 935 (N.M. Ct. App. 1996). . . . . . . 10-11
CONSTITUTIONAL PROVISIONS, STATUTES, RULES
Tex. Code Crim. Proc. art. 11.07. . . . . . . 9
Tex. Code Crim. Proc. art. 11.07, §3(c). . . . . . 9
Tex. Penal Code §22.01(b). . . . . . . . 11
Tex. Penal Code §22.01(b)(2). . . . . . . 10, 11
Tex. Penal Code §12.21(2). . . . . . . 12
vii IN THE COURT OF CRIMINAL APPEALS OF TEXAS
11.07 APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NUMBER C-1-009379-08496383-A IN THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY, TEXAS; THE HONORABLE ELIZABETH BEACH, JUDGE PRESIDING.
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW, THE STATE OF TEXAS (“State”), Respondent, by and
through her Tarrant County Criminal District Attorney’s Office, files this State’s
Brief pursuant to the Court of Criminal Appeals’ Order dated February 25, 2015,
and in support shows the following:
1 STATEMENT OF THE CASE
Nature of the case. The proceeding is an article 11.07 application for writ of
habeas corpus.
Course of Proceedings/Trial Court Disposition. On October 31, 2002,
DERRICK KEITH COOKE (“Applicant”) pled guilty, pursuant to a plea bargain
agreement, to the third degree felony offense of assault causing bodily injury to a
family member – prior conviction. See Unadjudicated Judgment of Plea of Guilty
or Nolo Contendere and Suspending Imposition of Sentence (“Unadjudicated
Judgment”), No. 0849683D, p. 1; Written Plea Admonishments
(“Admonishments”), No. 0849683D, p. 1. In accordance with the plea agreement,
the trial court placed Applicant on deferred adjudication for a period of five years.
See Unadjudicated Judgment, p. 1; Admonishments, p. 1.
Applicant did not appeal his placement on deferred adjudication. See
Criminal Docketing Statement, No. 0849683D.
On January 3, 2008, the trial court found Applicant had violated the terms of
his deferred adjudication, to-wit: committed a new assault causing bodily injury on
a family member; adjudicated Applicant guilty; and sentenced him to three years
confinement in the Texas Department of Criminal Justice – Institutional Division.
See Judgment Adjudicating Guilt (“Judgment”), No. 0849683D.
Applicant’s conviction was affirmed on appeal on September 21, 2009. See
2 Cooke v. State, No. 02-08-026-CR, 2009 WL 3078405 (Tex. App. – Fort Worth
Sept. 21, 2009, pet. ref’d) (not designated for publication).
Applicant filed his application for writ of habeas corpus on July 11, 2011.
See Application, p. 1. On February 25, 2015, this Court ordered briefing be done
on Applicant’s claims. See Ex parte Derrick Keith Cooke, No. WR-81,360-01,
2015 WL 831620 (Tex. Crim. App. Feb. 25, 2015) (not designated for
publication).
3 RESPONSES TO REQUESTED ISSUES
WHETHER AN APPLICANT IS SUFFERING COLLATERAL CONSEQUENCES IS A JURISDICTIONAL QUESTION; THEREFORE, THE COURT SHOULD ANSWER THAT QUESTION BEFORE LOOKING TO THE MERITS OF THE CLAIM.
APPLICANT’S APPLICATION SHOULD BE GRANTED AND HIS CONVICTION VACATED BECAUSE APPLICANT’S SENTENCE FOR A THIRD DEGREE FELONY WAS ILLEGAL.
FAILURE TO OBJECT TO THE USE OF THE NEW MEXICO PRIOR CONVICTION FOR ENHANCEMENT IN THIS CASE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE ISSUE WAS NOT WELL CONSIDERED AND CLEARLY DEFINED.
4 STATEMENT OF FACTS
On June 26, 2002, Applicant was indicted in Tarrant County for the third
degree felony offense of assault causing bodily injury to a family member with one
prior conviction. See Indictment, No. 0849683D. The offense was enhanced by
Applicant’s prior New Mexico conviction. See Indictment.
On October 31, 2002, Applicant pled guilty and judicially confessed,
pursuant to a plea agreement, to the third degree felony offense of assault causing
bodily injury to a family member – prior conviction in Tarrant County. See
Unadjudicated Judgment; Admonishments, p. 1, 4. Applicant was placed on
deferred adjudication for a period of five years. See Unadjudicated Judgment. On
January 3, 2008, Applicant was adjudicated guilty and sentenced to three years
confinement in the Texas Department of Criminal Justice – Institutional Division.
See Judgment.
Applicant filed this application for writ of habeas corpus on July 11, 2011.
See Application, p. 1.
Applicant discharged his sentenced in this Tarrant County case on March 11,
2013. See Valdez Affidavit, p. 2.
On August 1, 2007, Applicant was indicted in Hood County for the third
degree felony offense of assault-bodily injury to a family member – enhanced
occurring on June 18, 2007. See State’s Proposed Memorandum, Findings of Fact
5 and Conclusions of Law, Attachment A: Indictment, No. CR10647 (“Hood County
Indictment”). The Tarrant County offense was used to enhance the Hood County
offense. See Hood County Indictment. On May 23, 2008, Applicant was
convicted by a jury and punishment was assessed at eight years confinement in the
Texas Department of Criminal Justice – Institutional Division. See State’s
Proposed Memorandum, Findings of Fact and Conclusions of Law, Attachment B:
Judgment of Conviction by Jury, No. CR10647 (“Hood County Judgment”).
Applicant will discharge his sentence in his Hood County conviction on
March 19, 2018. See Valdez Affidavit, p. 2.
Based on the Hood County conviction, the trial court in this case adopted
findings of fact that
8. Applicant is currently facing collateral consequences as a result of this [Tarrant County] conviction.
See State’s Proposed Memorandum, Findings of Fact and Conclusions of Law, p.
3; Order, Dated May 1, 2014.
6 SUMMARY OF THE ARGUMENT
Applicant’s conviction should be VACATED. The inquiry into whether
Applicant is suffering collateral consequences is a jurisdictional question.
Therefore, the proper inquiry to determine collateral consequences should not be
whether relief in this case would affect another case but whether this conviction
affected another case. Since the Tarrant County conviction was used to enhance
Applicant’s sentence for his Hood County conviction, this Court should find that
Applicant is suffering a collateral consequence because of this Tarrant County
conviction. Therefore, this Court has jurisdiction to consider this application on
the merits.
Applicant’s Tarrant County conviction was improperly enhanced to a third
degree felony by the New Mexico prior conviction when the statute required that
only Texas offenses could be used. Therefore, his sentence was illegal and outside
the range of punishment.
However, counsel was not ineffective in the Tarrant County case for failing
to object to the use of the prior New Mexico conviction because the law at the time
was not clear and well-defined. Even though the information was in the statute,
there was no case law or court interpretation regarding what the statute meant.
Applicant’s ineffective assistance of counsel claim should be DENIED.
7 ARGUMENTS AND AUTHORITIES
Requested Issue 1: Whether Applicant is suffering collateral consequences given the fact that even if the present Tarrant County assault had not been elevated to a third degree felony, as a Class A misdemeanor, it could have elevated the assault in Applicant’s Hood County case to a third degree felony.
I. WHETHER AN APPLICANT IS SUFFERING COLLATERAL CONSEQUENCES IS A JURISDICTIONAL QUESTION; THEREFORE, THE COURT SHOULD ANSWER THAT QUESTION BEFORE LOOKING TO THE MERITS OF THE CLAIM.
Whether this Tarrant County conviction was used to enhance the Hood
County sentence or whether relief from this habeas proceeding would affect the
Hood County conviction are two separate inquiries. But only the question of
whether this Tarrant County conviction was used to enhance the Hood County
sentence is a collateral consequence inquiry. Whether relief in this Tarrant County
case would have any effect on the Hood County case goes to the merits of this
application and any application filed in the Hood County case. A question of
collateral consequences is a jurisdictional question and, therefore, should be
resolved before the court addresses the merits of the claim.
“We are mindful of the fact that we have not always addressed the threshold issue of our habeas corpus jurisdiction before addressing the merits of a given claim. We should.”
Ex parte Graves, 70 S.W.3d 103, 109 (Tex. Crim. App. 2002).
A jurisdictional inquiry should get the applicant through the door. While it
should be the first inquiry made, it also should not require too heavy a burden on
8 the applicant. Whether his application invokes this Court’s jurisdiction is quite
different than whether the application should be granted.
A finding that only the mere existence of Applicant’s conviction, and not the
possibility of any relief, is sufficient to invoke this Court’s jurisdiction is consistent
with the current jurisprudence on collateral consequences. In recent years, an
applicant need only allege specific facts that he has suffered some adverse
consequence as a result of his conviction. Ex parte Harrington, 310 S.W.3d 452,
457-58 (Tex. Crim. App. 2010). The Court has not required other applicants to
prove that the granting of relief would eliminate that adverse consequence. See id.
Finally, the statute itself supports that it is the conviction and not the effect
of relief that is important. Article 11.07, §3(c) states, in part:
Confinement means confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.
Tex. Code Crim. Proc. art. 11.07, §3(c). Under most circumstances, receiving
relief would alleviate the collateral consequences. However, nowhere in the statute
did the Legislature make that a requirement. See Tex. Code Crim. Proc. art. 11.07.
The collateral consequence should get the applicant in the door.
Therefore, the proper inquiry should not be whether Applicant’s conviction
as a misdemeanor would have an effect on the Hood County case but whether
Applicant’s conviction was used to enhance his Hood County sentence. It was.
9 Applicant is suffering from a collateral consequence resulting from this
conviction.
II. APPLICANT’S APPLICATION SHOULD BE GRANTED AND HIS CONVICTION VACATED BECAUSE APPLICANT’S SENTENCE FOR A THIRD DEGREE FELONY WAS ILLEGAL.
Applicant’s Tarrant County assault – family violence offense was enhanced
to a third degree felony based on his prior New Mexico conviction. See
Indictment. However, an assault – family violence offense “is a Class A
misdemeanor, except that the offense is a felony of the third degree if the offense is
committed against:
(2) a member of the defendant's family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant's family or household under this section.”
Tex. Penal Code §22.01(b)(2) (West 2001) (emphasis added). “In construing a
statute, we give effect to its literal text unless the meaning of the statute is
ambiguous or the plain meaning leads to absurd results that the legislature could
not have possibly intended.” Chiarini v. State, 442 S.W.3d 318, 320 (Tex. Crim.
App. 2014). There is precedent that the plain language of phrases such as “an
offense under this article” prohibits the use of out-of-state offenses because those
offenses are not “under this [Texas] article.” Mitchell v. State, 821 S.W.2d 420,
422-23 (Tex. App. – Austin 1991, pet. ref’d); see also State v. Nelson, 910 P.2d
10 935, 940 (N.M. Ct. App. 1996) (“Applying the plain meaning of the language in
light of the rule of lenity, ‘under this section’ does not include within its purview
out-of-state convictions.”); Goulder v. Ariz. Dept. of Trans., Motor Vehicle Div.,
877 P.2d 280, 281 (Ariz. 1994) (When a statute refers to a prior charge of violating
a specific statute, a charge of violating another state’s statute will not suffice.);
People v. Gagne, 485 N.Y.S.2d 938, 939-40 (N.Y. Co. Ct. 1985) (When a statute
does not expressly provide that an out-of-state conviction may be used as a
predicate conviction, then an in-state conviction is required.). Therefore, because
section 22.01 of the Texas Penal Code specifically required that the prior
conviction be “an offense … under this section” before it could be used to elevate
an assault family violence to a third degree, Applicant’s out-of-state conviction
could not be used as it was not “an offense … under this section.” See Tex. Penal
Code §22.01(b)(2) (West 2001). Applicant’s Tarrant County offense was
improperly enhanced to a third degree felony.
Because Applicant has no other prior assault convictions that could be used
to enhance this Tarrant County offense to a third degree felony, Applicant should
have been charged with a Class A Misdemeanor. See Tex. Penal Code §22.01(b)
(West 2001). An illegal sentence can be challenged at any time. Ex parte Pena,
71 S.W.3d 336, 339 (Tex. Crim. App. 2002). “An illegal sentence is one that is not
authorized by law; therefore, a sentence that is outside the range of punishment
11 authorized by law is considered illegal.” Ex parte Parrott, 396 S.W.3d 531, 534
(Tex. Crim. App. 2013) (citation omitted). “An individual adjudged guilty of a
Class A misdemeanor shall be punished by … confinement in jail for a term not to
exceed one year.” Tex. Penal Code §12.21(2). Applicant’s three year conviction
was outside the range of punishment authorized by law. In short, Applicant’s
sentence was illegal. See Ex parte Parrott, 396 S.W.3d at 534.
When an applicant receives an illegal sentence as a result of a negotiated
plea, and the sentence is outside the range of punishment, he is entitled to
withdraw his plea. See Ex parte Rich, 194 S.W.3d 508, 515 (Tex. Crim. App.
2006). This conviction should be VACATED and Applicant remanded back to
Tarrant County to answer the charges set out in the indictment. Id.
Requested Issue 2: Whether counsel was ineffective for failing to object to the New Mexico conviction.
III. FAILURE TO OBJECT TO THE USE OF THE NEW MEXICO PRIOR CONVICTION FOR ENHANCEMENT IN THIS CASE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE ISSUE WAS NOT WELL CONSIDERED AND CLEARLY DEFINED.
Because Applicant is entitled to relief as his Tarrant County sentence was
illegal, and Applicant is entitled to a new trial as a result, there is no need for this
Court to determine whether he also received ineffective assistance of counsel.
However, if this Court chooses to also consider this claim, the claim should fail
12 because counsel was not ineffective.
The two-prong test enunciated in Strickland v. Washington applies to
ineffective assistance of counsel claims in non-capital cases. Hernandez v. State,
988 S.W.2d 770, 771 (Tex. Crim. App. 1999). To prevail on his claim of
ineffective assistance of counsel, the applicant must show counsel's representation
fell below an objective standard of reasonableness, and there is a reasonable
probability the results of the proceedings would have been different in the absence
of counsel's unprofessional errors. Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Support for Applicant’s claim of ineffective
assistance of counsel must be firmly grounded in the record. See Johnson v. State,
691 S.W.2d 619, 627 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985).
In addition, the court’s evaluation of representation should be “from counsel’s
perspective at the time.” Strickland v. Washington, 466 U.S. at 689.
First, it was well settled in Texas that out-of-state felonies could be used
generally for enhancement. Garcia v. State, 145 S.W.2d 180, 180 (Tex. Crim.
App. 1940) (“It is well settled that convictions of a felony in other states will
support the enhancement of the penalty.”). While section 22.01 of the Texas Penal
Code specifically required that the prior conviction be “an offense … under this
section,” there was no case law addressing this issue or interpreting what “under
this section” meant.
13 “[C]ounsel's performance will be measured against the state of the law in
effect during the time of trial and we will not find counsel ineffective where the
claimed error is based upon unsettled law.” Ex parte Chandler, 182 S.W.3d 350,
359 (Tex. Crim. App. 2005) (citation omitted); see also Ex parte Smith, 296
S.W.3d 78, 81 (Tex. Crim. App. 2009) (counsel not ineffective because proper
construction of statute was unresolved and unclear). In 1991, the Third Court of
Appeals considered the DWI statute and held that it prohibited the use of out-of-
state convictions to elevate a DWI to a felony because the statute only allowed “an
offense under this article” to be used. Mitchell v. State, 821 S.W.2d at 422-23.
Therefore, eleven years before Applicant’s plea, a court held that language similar
to the language in section 22.01 of the Texas Penal Code did not allow the use of
out-of-state convictions for enhancement. However, at the time of Applicant’s
plea in 2002, neither the Second Court of Appeals (the typical court for Tarrant
County cases) nor this Court had adopted the Third Court of Appeals’ holding that
a statute that allows only usage of “an offense under this article” prohibits the use
of out-of-state convictions in the DWI context. There was certainly no direction
regarding the application of that language in section 22.01 of the Texas Penal
Code. In short, whether an out-of-state conviction could be used for enhancement
under section 22.01(b)(2) of the Texas Penal Code was an unsettled proposition of
law at the time of Applicant’s plea.
14 Second, the focus of the case law regarding section 22.01 of the Texas Penal
Code around the time of Applicant’s plea was what constituted sufficient evidence
to prove “family violence” when it was not included in the prior convictions’
judgments. See, e.g., Goodwin v. State, 91 S.W.3d 912, 920 (Tex. App. – Fort
Worth 2002, no pet.); State v. Cagle, 77 S.W.3d 344, 349 (Tex. App. – Houston
[14th Dist.] 2002, pet. ref’d); Collesano v. State, No. 01–01–00984–CR, 2002 WL
2026055, *2 (Tex. App. – Houston [1st Dist.] Aug. 29, 2002, pet. ref’d). Therefore,
the application of “an offense … under this section” to prior convictions in section
22.01 of the Texas Penal Code was not well considered or clearly defined at the
time of Applicant’s plea.
“[A] bar card does not come with a crystal ball attached.” Ex parte
Chandler, 182 S.W.3d at 359. Thus, “[i]gnorance of well-defined general laws,
statutes and legal propositions is not excusable and such ignorance may lead to a
finding of constitutionally deficient assistance of counsel, but the specific legal
proposition must be ‘well considered and clearly defined.’” Id. at 358. Because
“the law is not an exact science and it may shift over time,” “an attorney is not
liable for an error in judgment on an unsettled proposition of law…” Id.
Therefore, counsel did not provide constitutionally deficient assistance of counsel
when he failed to object to the use of Applicant’s New Mexico for enhancement
under section 22.01(b)(2) of the Texas Penal Code because the law was unsettled
15 and not well considered or clearly defined.
Trial counsel’s representation did not fall below an objective standard of
reasonableness. The failure to satisfy one prong negates a court’s need to consider
the other. Strickland v. Washington, 466 U.S. at 694. Applicant has failed to
prove that he received ineffective assistance of trial counsel.
Applicant’s claim that he received ineffective assistance of counsel should
be DENIED.
CONCLUSION AND PRAYER
It is respectfully submitted that all things are regular, and the State prays that
this Court find
a. The correct jurisdictional inquiry for determining when an applicant is suffering a collateral consequence is whether the case affected his punishment or conviction in another case and not whether relief would ultimately affect the other case;
b. Applicant is properly suffering a collateral consequence because this case was used to enhance his punishment in his Hood Count conviction;
c. Because Applicant’s punishment was improperly enhanced to a third degree felony, this conviction is VACATED and the case remanded back to the trial court for A NEW TRIAL;
d. Because the issue was not well considered and clearly defined, counsel was not ineffective for failing to object to the use of Applicant’s New Mexico case as a prior conviction to enhance this case; and
16 e. Applicant’s claim that he received ineffective assistance of counsel is DENIED.
Respectfully submitted,
SHAREN WILSON Criminal District Attorney Tarrant County /s/ Andréa Jacobs__________ Andréa Jacobs, Assistant Criminal District Attorney State Bar No. 24037596 401 West Belknap Fort Worth, TX 76196-0201 Phone: 817/884-1687 Facsimile: 817/884-1672
CERTIFICATE OF SERVICE
I hereby certify that a copy of the State’s Brief was served on the 26th day of
May, 2015, to Applicant’s counsel, Hon. John Stickels, by electronic mail at
john@stickelslaw.com and first class mail at P.O. Box 121431, Arlington, Texas
76012.
/s/ Andréa Jacobs__________ Andréa Jacobs
17 CERTIFICATE OF COMPLIANCE
The total number of words in this State’s Brief, including any caption,
identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of the issues
presented, statement of jurisdiction, statement of procedural history, signature,
proof of service, certification, certificate of compliance, and/or appendix, is 4371
words, as determined by the word count feature of Microsoft Office Word 2010.