May 29, 2015
IN THE COURT OF CRIMINAL APPEALS 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.
APPLICANT’S BRIEF
Stickels & Associates, P.C. P. O. Box 121431 Arlington, Texas 76012 Phone: (817) 479-9282 Fax: (817) 622-8071 John W. Stickels State Bar No. 19225300 Attorney for Derrick Keith Cooke
i 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
i Court:
Plea Proceeding: Hon. Sharen Wilson Criminal District Court No. 1 401 W. Belknap Fort Worth, Texas 76196
Post-Conviction Writ: Hon. Elizabeth Beach Criminal District Court No. 1 401 W. Belknap Fort Worth, Texas 76196
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES .....................................................................................v
REQUESTED ISSUES ..............................................................................................3
1. THE COURT SHOULD ANSWER THE ISSUE OF WHETHER APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE PRIOR TO ANALZYING THE MERITS OF APPLICANT’S CLAIM BECAUSE THIS ISSUE IS A JURISDICTIONAL MATTER. ............................................................3
2. APPLICANT’S APPLICATION SHOULD BE GRANTED AND CONVICTION VACATED BECAUSE PURSUANT TO SECTION 22.01(b)(2) OF THE TEXAS PENAL CODE, APPELLANT’S SENTENCE IS ILLEGAL; THUS, APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE. .......3
3. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE NEW MEXICO CONVICTION. ......................................................................3 STATEMENT OF FACTS ........................................................................................4
ARGUMENTS AND AUTHORITIES .....................................................................8
ISSUE ONE: WHETHER APPLICANT IS SUFFERING COLLATERAL CONSEQUENCES UNDER ARTICLE 11.07, §3(c) OF THE CODE OF CRIMINAL PROCEDURE 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? ....................................................................................8
I. THE COURT SHOULD ANSWER THE ISSUE OF WHETHER APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE PRIOR TO ANALZYING THE MERITS OF APPLICANT’S CLAIM BECAUSE THIS ISSUE IS A JURISDICTIONAL MATTER. ............................................................8
iii II. APPLICANT’S APPLICATION SHOULD BE GRANTED BECAUSE UNDER THE LAWS OF THE STATE OF TEXAS, SPECIFICALLY, SECTION 22.01(b)(2)(A) OF THE TEXAS CODE OF CRIMINAL PROCEDURE, APPELLANT’S SENTENCE IS ILLEGAL; THUS, APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE. .............................................10
ISSUE TWO: WHETHER COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE NEW MEXICO CONVICTION? .............................................12
CONCLUSION AND PRAYER .............................................................................14
CERTIFICATE OF SERVICE ................................................................................16
CERTIFICATE OF COMPLIANCE .......................................................................16
iv TABLE OF AUTHORITIES Cases
Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991), .......................................9
Chiarini v. State, 442 S.W.3d 318 (Tex. Crim. App. 2014). .....................................9
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). ..............................2, 5
Ex Parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002)....................................7, 8
Ex Parte Harrington, 310 S.W. 3d 457 (Tex. Crim. App. 2010). .........................7, 8
Ex Parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013), ..................................10
Faulk v. State, 608 S.W.2d 625 (Tex. Crim. App. 1980) ..........................................9
Mitchell v. State, 821 S.W.2d 420 (Tex. App.—Austin 1991, pet ref’d). ........ 10, 11
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.ed.2d 674 (1984). .11
Statutes
Tex. Code Crim. Proc. art. 11.07 (West 2013) ................................................ passim
Tex. Penal Code §22.01(b)(2)(A) (West 2001). ....................................................4, 9
v IN THE COURT OF CRIMINAL APPEALSOF TEXAS
EX PARTE § § § NO. WR-81, 360-01 § DERRICK KEITH COOKE §
11.07 APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. C-1-009379-08496363-A IN THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY, TEXAS: THE HONORABLE JUDGE ELIZABETH BEACH, JUDGE PRESIDING
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, DERRICK KEITH COOKE, APPLICANT, by and through
his counsel of record, the Honorable John W. Stickels, and files this Applicant’s
Brief pursuant to the Court of Criminal Appeals’ Order signed and dated February
25, 2015 and in support shows the following:
STATEMENT OF THE CASE
On June 26, 2002, a grand jury in Tarrant County, Texas indicted Applicant
for assault causing bodily injury to a family member— with a prior conviction, a
third degree felony. On October 31, 2002, Applicant pled guilty and the trial court
placed him on deferred adjudication for a term of five years. See Unadjudicated
Judgment on Plea of Guilty of Nolo Contendre and Suspending Imposition of
Sentence, Cause No. 0849683D. Applicant violated the terms of his deferred
1 adjudication, specifically committing a new offense to wit: assault on a family
member—causing bodily injury. On January 3, 2008, the Honorable Jerry
Woodlock sentenced him to three years in the Institutional Division of the Texas
Department of Criminal Justice (TDCJ). See Judgment Adjudicating Guilt, Cause
No. 0849683. On September 21, 2009, the Texas Court of Criminal Appeals
affirmed this conviction. See 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).
On August 1, 2007, a grand jury in Hood County indicted Applicant under
Section 22.01, a third degree felony, alleging that Applicant committed the
following offense: assault-bodily injury family member-enhanced. See Indictment,
No. CR10647. On May 23, 2008 a jury in Hood County, Texas convicted and
sentenced Applicant to eight years in the TDCJ for the offense of assault with
bodily injury to a family member (with a prior conviction), a third degree felony.
See Judgment of Conviction by Jury. On July 11, 2011, Derrick Keith Cooke
(hereinafter referred to as “Applicant”) filed his application for writ of habeas
corpus under article 11.07 of the Texas Code of Criminal Procedure.
2 REQUESTED ISSUES
1. THE COURT SHOULD ANSWER THE ISSUE OF WHETHER APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE PRIOR TO ANALZYING THE MERITS OF APPLICANT’S CLAIM BECAUSE THIS ISSUE IS A JURISDICTIONAL MATTER.
2. APPLICANT’S APPLICATION SHOULD BE GRANTED AND CONVICTION VACATED BECAUSE PURSUANT TO SECTION 22.01(b)(2) OF THE TEXAS PENAL CODE, APPELLANT’S SENTENCE IS ILLEGAL; THUS, APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE.
3. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE NEW MEXICO CONVICTION.
3 STATEMENT OF FACTS
On June 26, 2002, a grand jury in Tarrant County, Texas indicted Applicant
of the third degree offense of assault causing bodily injury to a family member—
with a prior conviction. See Indictment, Cause No. 0849683D, See Tex. Penal
Code §22.01(b)(2)(A) (West 2001). On October 31, 2002, Applicant pled guilty to
the third degree offense of assault causing bodily injury to a family member—with
a prior conviction. See Unadjudicated Judgment on Plea of Guilty of Nolo
Contendre and Suspending Imposition of Sentence, Cause No. 0849683D. The
offense of assault causing bodily injury to a family member was enhanced by using
a 1999 New Mexico conviction for assault. See Indictment, Cause No. 0849683D,
Judgment and Sentence—Cause No. M-0033-VR-98-00017 (New Mexico
Judgment). The trial court placed him on deferred adjudication for a term of five
years. See Unadjudicated Judgment on Plea of Guilty of Nolo Contendre and
Suspending Imposition of Sentence, Cause No. 0849683D.
Applicant violated the terms of his deferred adjudication, specifically
committing a new offense: assault on a family member—causing bodily injury. On
January 3, 2008, the Honorable Jerry Woodlock sentenced him to three years in the
(TDCJ). See Judgment Adjudicating Guilt, Cause No. 0849683. On September 21,
2009, the Texas Court of Criminal Appeals affirmed this conviction. See Cooke v.
4 State, No. 02-08-026-CR, 2009 WL 3078405 (Tex. App.—Fort Worth Sept. 21,
2009, pet. ref’d) (not designated for publication).
On August 1, 2007, a grand jury in Hood County indicted Applicant under
Section 22.01 for the following offense: assault-bodily injury family member-
enhanced, a third degree felony. See Indictment, No. CR10647. The indictment
included an enhancement paragraph including the above-mentioned Tarrant
County offense. On May 23, 2008, a jury in Hood County, Texas convicted and
sentenced Applicant to eight years in TDCJ. See Judgment of Conviction by Jury.
This application for writ of habeas corpus was filed on July 11, 2011. On
February 25, 2015, The Court of Criminal Appeals of Texas ordered Applicant and
Respondent to submit a brief addressing the issues stated herein. See Order, No.
Wr-81, 360-61, February 25, 2015.
5 SUMMARY OF THE ARGUMENT
Applicant’s application should be granted and his conviction vacated
because his sentence is illegal under the laws of the State of Texas. Whether
appellant is suffering from a collateral consequence is a matter of a jurisdiction.
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 is not relevant nor related to
the jurisdictional issue. In properly analyzing the issue of whether Applicant
suffered a collateral consequence, the essential question should be whether the
Tarrant County conviction had an impact on another case and not whether
Applicant’s requested relief would impact another case. Thus, the essential
question is whether the Tarrant County conviction affected the Hood County case,
which it did. This Court has jurisdiction to address the merits of this application.
Under section 22.01(b)(2) of the Texas Penal Code, Applicant’s Tarrant
County conviction was improperly enhanced from a Class A misdemeanor to a
third degree felony by using the 1999 New Mexico Conviction. Thus, Applicant is
improperly confined because his conviction is illegal under the law.
6 Counsel was ineffective in failing to object to the use of 1999 New Mexico
conviction. The statute on its face states that an assault family violence offense:
[i] s 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.
The phrase “under this section” pertains to only in-state convictions. Thus,
Applicant’s claim to ineffective assistance of counsel should be granted.
7 ARGUMENTS AND AUTHORITIES
ISSUE ONE: WHETHER APPLICANT IS SUFFERING COLLATERAL CONSEQUENCES UNDER ARTICLE 11.07, §3(c) OF THE CODE OF CRIMINAL PROCEDURE 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. THE COURT SHOULD ANSWER THE ISSUE OF WHETHER APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE PRIOR TO ANALZYING THE MERITS OF APPLICANT’S CLAIM BECAUSE THIS ISSUE IS A JURISDICTIONAL MATTER.
The Court in Ex Parte Graves, 70 S.W.3d 103, 109 (Tex. Crim. App. 2002),
stated that the Court should determine the issue of habeas corpus jurisdiction prior
to ever reaching the merits of a claim. Ex Parte Graves, 70 S.W.3d 103, 109 (Tex.
Crim. App. 2002). An application for habeas corpus relief from collateral
consequences of another conviction is permitted as long as the Applicant is
confined subsequent to a conviction for a felony offense. See Ex Parte
Harrington, 310 S.W. 3d 457 (Tex. Crim. App. 2010). In Ex Parte Harrington, the
court stated: “ a showing of a collateral consequence, without more, is now
sufficient to establish ‘confinement’ so as to trigger application of art. 11.07.”
Case law demonstrates that an Applicant’s mere statement that he is confined and
suffering a collateral consequence is sufficient to invoke the jurisdiction of this
8 Court. Id. at 457. Confinement is sufficient to initiate Article 11.07 without
placing any more burdens on the Applicant. Id.
Prior to addressing the merits of the claim, the Court must first address the
jurisdictional issue. The Court’s jurisdiction is invoked where there are specific
facts to demonstrate an Applicant is confined and claims that he has suffered a
collateral consequence as a result of his conviction. See Tex. Code Crim. Proc. Art
11.07, §3(c), Ex Parte Graves, 70 S.W.3d 103, 109 (Tex. Crim. App. 2002), See
Ex Parte Harrington, 310 S.W. 3d 457 (Tex. Crim. Ap.. 2010).
The text of Art 11.07 §3(c) reads as follows :
[I]t shall be the duty of the convicting court to decide whether there are controverted, previously unresolved facts material to the legality of the applicants confinement. Confinement means confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.
Reading the statute on its face, there is no requirement for jurisdictional
purposes that the relief requested would relieve the collateral consequences. Based
on case law and there is no requirement that the relief requested would ease the
Applicant’s suffering from the collateral consequences. Therefore, the Court here
should inquire as to whether the Tarrant County conviction, which used the 1999
New Mexico conviction, affected the Hood County sentence; thus causing
Appellant to suffer a collateral consequence.
9 Here, the Tarrant County conviction was enhanced by the 1999 New Mexico
conviction. As stated, under section 22.01 of the Texas Penal Code, it was
improper to enhance the Tarrant County Assault –Family Violence, Class A
misdemeanor to a third degree felony assault family violence—with prior
conviction. Subsequent to this improper enhancement, this Tarrant County
conviction was used to enhance Applicant’s conviction in Hood County; thus,
Applicant is facing a collateral consequence.
II. APPLICANT’S APPLICATION SHOULD BE GRANTED BECAUSE UNDER THE LAWS OF THE STATE OF TEXAS, SPECIFICALLY, SECTION 22.01(b)(2)(A) OF THE TEXAS CODE OF CRIMINAL PROCEDURE, APPELLANT’S SENTENCE IS ILLEGAL; THUS, APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE.
Section 22.01(b)(2) of the Texas Penal code states an assault—family
violence:
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).
A prior 1999 New Mexico conviction for assault family violence was used
to enhance applicant’s Tarrant County conviction. Unless a statute is ambiguous or
10 plain meaning would lead to a result clearly not intended by the legislature, courts
utilize the plain meaning of text. See Faulk v. State, 608 S.W.2d 625, 630 (Tex.
Crim. App. 1980), Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App.
1991), Chiarini v. State, 442 S.W.3d 318, 320 (Tex. Crim. App. 2014).
Only if the plain meaning of language would lead to absurd results should a
court stray from the plain meaning of the language. The term “under this section”
on its face is referring to the law of Texas under the specific statute which speaks.
See Mitchell v. State, 821 S.W.2d 420, 420 (Tex. App.—Austin 1991, pet ref’d).
Here, Applicant’s prior New Mexico conviction was improperly used to enhance
his Tarrant County conviction from a Class A misdemeanor to a third degree
felony; thus , Appellants confinement is illegal.
In Ex Parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013), the Court
addressed the issue of whether the Applicant properly raised an illegal-sentence
claim based on the State’s improper use of a prior conviction for enhancement
purposes. Ex Parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013). This is a
recognized claim in a writ of habeas corpus. Id. at 533. A sentence outside a legal
range of punishment is an illegal sentence. Id. Here, Applicant did not have any
prior assault convictions from the State of Texas aside from the 1999 New Mexico
conviction. Thus, he would have been charged with a Class A Misdemeanor
offense with a range of punishment up to one year in the county jail. Here,
11 Applicant was sentenced to 3 years in TDCJ, which is a sentence outside the legal
range of punishment. Thus, Applicant’s application should be granted and
conviction vacated.
ISSUE TWO: WHETHER COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE NEW MEXICO CONVICTION?
I. COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE NEW MEXICO CONVICTION.
A claim to ineffective assistance of counsel should be analyzed under the
two-prong analysis under Strickland v. Washington. See Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.ed.2d 674 (1984). The issue is whether: 1)
counsel’s representation fell below an objective standard of representation and 2)
whether this performance was so deficient it deprived Applicant of a right to fair
trial (essentially that there is reasonable probability that but for counsel’s
inadequate representation the results of the case would be different). See Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.ed.2d 674 (1984).
Although neither this Court nor the Second Court of Appeals adopted the
holding in Mitchell v. State, through diligent research of case law counsel would
have discovered there was supporting case law to support a motion to quash
indictment. The court in Mitchell v. State, held that a DWI statute with similar
language “under the laws of this section” excluded the use of out-of-state
12 convictions for enhancement purposes. Mitchell v. State, 821 S.W.2d 420, 422
(Tex. App. –Austin 1992).
On page 3 of the affidavit submitted by the Honorable Jeffery D. Gooch, he
states that filing a motion to set aside the indictment would be frivolous. Yet ,
counsel failed to properly investigate the issues stated herein; thus, subjecting
Applicant to an illegal range of punishment for a third degree felony instead of a
Class A misdemeanor.
Although counsel will not be found ineffective where the error is predicated
upon unsettled law, one can hardly argue that the textual language of the assault
family violence statute is complex or confusing. As stated earlier, the text of
Section 22.01 (assault family violence statute), states “under this section.” The text
of this language is neither confusing nor ambiguous nor complex to cause
confusion, especially for counsel who had been practicing for seven years and
worked on quite a few criminal cases. See Affidavit of the Honorable Jeffery D.
Gooch, page 3. Trial counsel’s representation fellow below objective standards of
reasonableness. Due to trial counsel’s failure to properly investigate the law,
Applicant was subjected to confinement in a state prison for a Class A
misdemeanor offense with a range of punishment up to a year in the county jail.
Applicant’s claim for ineffective assistance of counsel should be granted.
13 CONCLUSION AND PRAYER
Based upon the foregoing, Applicant prays that this Court find:
1. THE COURT SHOULD ANSWER THE ISSUE OF WHETHER APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE PRIOR TO ANALZYING THE MERITS OF APPLICANT’S CLAIM BECAUSE THIS ISSUE IS A JURISDICTIONAL MATTER.
2. APPLICANT IS SUFFERING A COLLATERAL CONSEQUENCE BECAUSE HIS HOOD COUNTY CONVICITION WAS ENHANCED BY THE TARRANT COUNTY CONVICTION WHICH IS ILLEGAL AND VACATE APPLICANT’S CONVICTION.
3. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE NEW MEXICO CONVICTION AND THIS CLAIM BE GRANTED.
14 Respectfully submitted,
Stickels & Associates, P.C. P. O. Box 121431 Arlington, Texas 76012 Phone: (817) 479-9282 Fax: (817) 622-8071
By: /S/ John W. Stickels John W. Stickels State Bar No. 19225300 Attorney for Derrick Keith Cooke
15 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Brief has been served on the office of the Attorney for the State, on the 29th day of May, 2015.
/S/ John W. Stickels John W. Stickels
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Tex. R. App. P. 9.4(i)(2) because it contains 2,589 words, excluding the parts of the brief exempted by Tex. R. App. P. 9(4)(i)(1).
2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in proportional spaced typeface using Microsoft Word software in Times New Roman 14-Point text and Times New Roman 12-point font in footnotes.