ACCEPTED FILED 13-14-00610-CR THIRTEENTH COURT OF APPEALS IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS CORPUS CHRISTI 1/22/2015 7:46:26 PM DORIAN RAMIREZ 1/22/15 CLERK DORIAN E. RAMIREZ, CLERK BY DTello No. 13-14-00610-CR RECEIVED IN IN THE 13TH COURT OF APPEALS OF TEXAS 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS THE STATE OF TEXAS, 1/22/2015 7:46:26 PM APPELLEE DORIAN E. RAMIREZ Clerk v.
Damion Navarro APPELLANT
ON APPEAL FROM THE 2nd 25th DISTRICT COURT, 129-13-A, GONZALES COUNTY, TEXAS
DEFENDANT/APPELLANT’S ORIGINAL BRIEF (DEFENDANT’S APPEAL)
Chris Iles Attorney at Law Park Tower 710 Buffalo Street, #802 Corpus Christi, Tx. 78401 361.883.2020 Fax: 866.565.5343 SBOT# 00789391 Appointed Counsel for Defendant/Appellant
ORAL ARGUMENT IS REQUESTED
1 IDENTITY OF PARTIES AND ATTORNEYS State’s Trial and Appellate Attorney: MR. KERI LEA ANN MILLER Assistant District Attorney SBOT#: 24051960 415 Saint Louis Street Gonzales, Texas 78629 Phone No.: 830.672.6527 Attorney for the State Appellant:
Damion Navarro, TDC# 01952710 Hodge Unit 379 FM 2972 West Rusk, TX 75785-3666
Appellant’s Trial Attorney:
Mr. Travis M. Hill ATTORNEY AT LAW SBOT NO. 24043293 P.O. Box 358 Moulton, Texas 77975 Phone: 361.596.8888
Appellant’s Appellate Attorney: Chris Iles Attorney at Law Park Tower 710 Buffalo Street, #802 Corpus Christi, Tx. 78401 361.883.2020 Fax: 866.565.5343 SBOT# 00789391
2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND ATTORNEYS . . . . . . . . . . . . . . . . . . . . 2
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF THE CASE …. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..6
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ISSUES PRESENTED……………………………………………………....7
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ISSUE #1 The court erred in denying defense counsel the right to impeach the witness via prior inconsistent statement. ISSUE #2 The court erred in preventing defendant from fully cross examining Mr. Flach regarding credibility involving truthfulness related to a prior inconsistent statement. ISSUE #3 Defense counsel was ineffective in failing to assert the 6th Amendment right of confrontation in response to the state's objection, or for making an offer of proof.
CONCLUSION AND PRAYER .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
RULE 9.4 (I) CERTIFICATION 26
3 INDEX OF AUTHORITIES
CASES
Martinez v. State, 327 S.W.3d 727, 9 Taylor v. State, 268 S.W.3d 571, 9 Montgomery v. State, 810 S.W.2d 372, 9 Moses v. State, 105 S.W.3d 622 9 De La Paz v. State, 279 S.W.3d 336 10 Ellingsworth v. State, 487 S.W.2d 108, 10 Osteen v. State, 61 S.W.3d 90 10,11,12 McGary v. State, 750 S.W.2d 782, 11 Abdygapparova v. State, 243 S.W.3d 191, 11 Parson v. State, 193 S.W.3d 116, 11 Ruth v. State, 167 S.W.3d 560 11 Moore v. State, 652 S.W.2d 411, 12 Aranda v. State, 736 S.W.2d 702, 12 Joseph v. State, 960 S.W.2d 363, 12 Delaware v. Van Arsdall, 475 U.S. 673, 13 Davis v. Alaska, 415 U.S. 308, 13 Carroll v. State, 916 S.W.2d 494, 13 Delaware v. Van Arsdall, 475 U.S. 673, 13 Virts v. State, 739 S.W.2d 25, 13 Koehler v. State, 679 S.W.2d 6 13 Chambers v. State, 866 S.W.2d 9, 13 Shelby v. State, 819 S.W.2d 544 17 Salinas v. State, 980 S.W.2d 219, 19 Arizona v. Fulminante, 499 U.S. 279, 19 Bentley v. Scully, 41 F.3d 818, 19 Cain v. State, 947 S.W.2d 262 19 Gideon v. Wainwright, 372 U.S. 335, 20 Tumey v. Ohio, 273 U.S. 510, 20 Vasquez v. Hillery, 474 U.S. 254, 20 McKaskle v. Wiggins, 465 U.S. 168, 20 Waller v. Georgia, 467 U.S. 39, 20 Sullivan v. Louisiana, 508 U.S. 275, 20
4 Strickland v. Washington, 466 U.S. 668 21 Jackson v. State, 973 S.W.2d 954 22 Thompson v. State, 9 S.W.3d 808, 22 Gamble v. State, 916 S.W.2d 92, 22 Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). 22 Robinson v. State, 16 S.W.3d 808, 23 Castoreno v. State, 932 S.W.2d 597, 23 McFarland v. State, 928 S.W.2d 482, 23 Ex Parte Davis, 866 SW2d 234, 23 Ex Parte Felton, 815 SW2d 733, 23 Weathersby v. State, 627 SW2d 729 23 Aldrich v. State, 296 S.W.3d 225 24 Ex parte Welch, 981 S.W.2d 183 24
MISCELLANEOUS
TRE 613(a) passim TEX. R. APP. P. 33.2; 13 TEX. R. EVID. 103 (a)(2); 13 Rule of Appellate Procedure 44.2
5 STATEMENT OF THE CASE
Defendant was indicted on September 12, 2013 for burglary of a
habitation. (Indictment) On September 15, 2014, trial commenced. RR 4.
The jury returned a verdict of guilty as charged, and also returned an
affirmative deadly weapon finding. CR 66-67. On September 17, 2014, the
court imposed 50 years of imprisonment. Judgment, ID 68. Defendant
timely filed his notice of appeal and the instant appeal ensued. ID 74.
STATEMENT OF FACTS
The state first called John Christopher Flach, the alleged Victim in
this case who described how he was allegedly robbed in his house at
gunpoint by Mr. Navarro. RR 5 at 56. The state next called Dennis Jahns,
Gonzales County Sheriff's office investigator, who testified as to his
investigation. ID. 56-64 The state next called Matthew Atkinson, Gonzales
County sheriffs office lieutenant of the criminal investigations division, who
testified as to his investigation. ID, 64-98. The state next called Ashley
Russell, emergency medical technician with the Gonzales EMS Service, who
testified regarding the call she was dispatched to, and the injuries which the
victim sustained. ID 99-106. The State next called Bryan Strong, DPS
fingerprint expert, who testified that there were no fingerprints on the bullet
cartridge he examined. ID 106-114. The state next called Raleigh Wood,
6 PhD, who testified as to defendant's competence and mental state. ID 114-
136. The state next called Olan Malaer, fingerprint expert, who testified
that defendant's fingerprint matched a judgment in which he was convicted
of evading and resisting arrest.ID 136-141.
SUMMARY OF THE ARGUMENT
The court erred in denying defense counsel the right to impeach the
witness via prior inconsistent statement. The court erred in preventing
defendant from fully cross examining Mr. Flach regarding credibility
involving truthfulness related to a prior inconsistent statement. This violated
defendant’s right under the confrontation clause of the Sixth Amendment to
the U.S. Constitution which guarantees a criminal defendant the opportunity
for effective cross-examination. Defense counsel was ineffective in failing to
assert the 6th Amendment right of confrontation in response to the state's
objection, or for making an offer of proof.
ISSUES PRESENTED
The court erred in denying defense counsel the right to impeach the
witness via prior inconsistent statement. The court erred in preventing
defendant from fully cross examining Mr. Flach regarding credibility
involving truthfulness related to a prior inconsistent statement. This violated
defendant’s right under the confrontation clause of the Sixth Amendment to
7 the U.S. Constitution which guarantees a criminal defendant the opportunity
for effective cross-examination. Defense counsel was ineffective in failing to
assert the 6th Amendment right of confrontation in response to the state's
ARGUMENT AND AUTHORITIES
On cross examination, the following exchange occurred: RR5 at 55-
56.
Q. All right, now, you also said that you had gotten the
ski mask during this altercation that was going on and
taken
the ski mask off of Mr. Navarro allegedly. What
happened to
the ski mask?
A. I believe he -- what -- what do you mean?
Q. Do you know what happened to the ski mask?
A. He had it in his hands. He tried to put it back on
when I took it off.
Q. After you had already identified who he was, he was
going to put the ski mask back on.
A. He tried for a split second, then he kept it off.
8 Q. Okay.
A. But yeah, he -- it was coming off. He was -- it was
cockeyed, so he was trying to put it back on, and he had,
you
know, the pistol right here. But he was like more --
started
worrying more about the pistol than the mask.
Q. If you took the mask off of him, how did he get the
mask back?
A. I didn't take it off of him. I pulled it -- I pulled
it off of him. I didn't take it off --
Q. Okay, so --
A. -- because I was behind him, and it came off. You
can still have a mask on your head, but not over your
face.
Q. So in the police report, the officer has stated in
here that --
MS. MILLER: Your Honor, I object. It's
improper impeachment, and it's hearsay to state what the
officer stated in his police report
9 THE COURT: Sustain the objection.
Q. (BY MR. HILL) Would you be surprised if the officer
stated it in his report that you told him --
MS. MILLER: Objection, hearsay, your Honor.
THE COURT: Sustain the objection.
MR. HILL: Pass the witness.
ISSUE #1: The court erred in denying defense counsel the right to impeach
the witness via prior inconsistent statement.
STANDARD OF REVIEW: The Appellate Court reviews a trial court's
decision to admit or exclude evidence for an abuse of discretion. Martinez v.
State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of discretion
occurs only if the decision is "so clearly wrong as to lie outside the zone
within which reasonable people might disagree." Taylor v. State, 268
S.W.3d 571, 579 (Tex. Crim. App. 2008); Montgomery v. State, 810 S.W.2d
372, 391 (Tex. Crim. App. 1990) (op. on reh'g). The Appellate Court may
not substitute its own decision for that of the trial court. Moses v. State, 105
S.W.3d 622, 627 (Tex. Crim. App. 2003). The Appellate Court will uphold
an evidentiary ruling if it was correct on any theory of law applicable to the
case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
10 TRE 613(a) reads as follows:
Rule 613. PRIOR STATEMENTS OF WITNESSES: IMPEACHMENT AND SUPPORT
(a) Examining Witness Concerning Prior Inconsistent Statement. In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and person to whom the statement was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be disclosed to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).
Rule 613(a) of the Texas Rules of Evidence imposes three
requirements to establish the proper predicate or foundation for
impeachment testimony: (1) identification ("the time and place and the
person to whom [the statement] was made"), (2) "the contents of such
statement," and (3) the witness "must be afforded an opportunity to explain
or deny such statement." TEX. R. EVID. 613(a); see Ellingsworth v. State,
487 S.W.2d 108, 112 (Tex. Crim. App. 1972); Osteen v. State, 61 S.W.3d
90, 91 (Tex. App.—Waco 2001, no pet.). The plain language of Rule 613(a)
does not require the witness to deny the statement, it only provides that
extraneous evidence may not be admitted if "the witness unequivocally
11 admits having made such statement." TEX. R. EVID. 613(a). The Texas
Court of Criminal Appeals has observed that "[w]here the admission is only
qualified or partial and not unequivocal[,] the statement may be used to
impeach him." McGary v. State, 750 S.W.2d 782, 786 n.3 (Tex. Crim. App.
1988); see Abdygapparova v. State, 243 S.W.3d 191, 204 (Tex. App.—San
Antonio 2007, pet. ref'd); Parson v. State, 193 S.W.3d 116, 121 (Tex.
App.—Texarkana 2006, pet. ref'd); Ruth v. State, 167 S.W.3d 560, 566
(Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).
Rule 613(a) provides, "[T]he witness must be told . . . the person to
whom [the statement] was made . . . ." TEX. R. EVID. 613(a) (emphasis
added). If the impeaching party fails to lay a proper predicate or foundation,
the prior inconsistent statement should not be admitted. Moore v. State, 652
S.W.2d 411, 413 (Tex. Crim. App. 1983); Osteen v. State, 61 S.W.3d 90, 91
(Tex. App.—Waco 2001, no pet.) (proper predicate not laid when
impeaching party failed to inform witness of contents of statement). The
Texas Court of Criminal Appeals has stated, "The rule of admissibility of
evidence of prior inconsistent statements should be liberally construed[,] and
the trial judge should have discretion to receive any evidence which gives
promise of exposing a falsehood." Aranda v. State, 736 S.W.2d 702, 707
12 (Tex. Crim. App. 1987); Joseph v. State, 960 S.W.2d 363, 366 (Tex. App.—
Houston [1st Dist.] 1998, pet. ref'd).
Defendant argues that the court erred in denying defendant the right to
impeach the witness through his prior inconsistent statement. Per above
excerpt, the record clearly reflects that defendant was trying to impeach the
witness via prior inconsistent statement. The record does not reflect that
there was anything improper in the impeachment sequence that defendant
was engaging in. Although the record is not fully developed, the record does
reflect that defendant was attempting to elicit a prior inconsistent statement
the witness had made regarding the ski mask. The ski mask is a crucial
element in the defendant's case, because this bore on identity which was a
critical factor. Had defense counsel been able to fully develop this line of
questioning, this would have made a difference in the outcome of the case,
because not only would the witness's prior inconsistent statement be
exposed, but his credibility would have been damaged severely. Therefore,
the court erred in shutting the defense down.
ISSUE #2: The court erred in preventing defendant from fully cross
examining Mr. Flach regarding credibility involving truthfulness related to a
prior inconsistent statement. This violated defendant’s right under the
13 confrontation clause of the Sixth Amendment to the U.S. Constitution which
guarantees a criminal defendant the opportunity for effective cross-
examination.
STANDARD OF REVIEW: A trial court violates a defendant's right to
confrontation when the court prohibits the defendant from "engaging in
otherwise appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness" thereby exposing facts "'from which
jurors . . . could appropriately draw inferences relating to the reliability of
the witness.'" Delaware v. Van Arsdall, 475 U.S. 673, 678, 89 L. Ed. 2d 674,
106 S. Ct. 1431 (1986). (quoting Davis v. Alaska, 415 U.S. 308, 318, 39 L.
Ed. 2d 347, 94 S. Ct. 1105 (1974)). Error is shown when a reasonable jury
might have received a significantly different impression of the witness's
credibility if the defendant's counsel had been permitted to pursue the
prohibited, but otherwise appropriate, line of questioning. Id.
Generally, "a defendant is entitled to pursue all avenues of cross-
examination reasonably calculated to expose a motive, bias, or interest for
the witness to testify." Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim.
App. 1996). The confrontation clause of the Sixth Amendment to the U.S.
Constitution guarantees a criminal defendant the opportunity for effective
cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678, 89 L. Ed.
14 2d 674, 106 S. Ct. 1431 (1986). The right to cross-examination is not
unlimited and a trial court has wide discretion to limit the scope of cross-
examination to "prevent harassment, prejudice, confusion of the issues, harm
to the witness, and repetitive or marginally relevant interrogation." Id. at
679. However, a trial court violates a defendant's right to confrontation when
the court prohibits the defendant from "engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on the part
of the witness" thereby exposing facts "'from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness.'" Id. at
680 (quoting Davis v. Alaska, 415 U.S. 308, 318, 39 L. Ed. 2d 347, 94 S. Ct.
1105 (1974)). Error is shown when a reasonable jury might have received a
significantly different impression of the witness's credibility if the
defendant's counsel had been permitted to pursue the prohibited, but
otherwise appropriate, line of questioning. Id.
There is a distinction, for appellate review purposes, between a
situation in which a defense counsel attempts to elicit certain specific
responses from a witness, but is precluded from doing so by the trial judge,
and a situation in which a defense counsel is not permitted to question a
witness about a certain general subject that might affect the witness's
credibility. Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987)(en
15 banc). The respective requirements for preserving error in each situation are
distinct. Id. In the former situation, in order to preserve error, defense
counsel must make a bill of exception wherein the witness answers the
specific questions on the record, or alternatively, counsel may make an offer
of proof that includes the questions that would have been asked and the
answers that were expected to be received. TEX. R. APP. P. 33.2; TEX. R.
EVID. 103 (a)(2); Virts, 739 S.W.2d at 29; Koehler v. State, 679 S.W.2d 6,
9 (Tex. Crim. App. 1984)(en banc). However, when the complaint is that the
trial judge denied a defendant the opportunity to question a witness generally
about a matter that might affect the witness's credibility, it is not necessary
to show what the cross-examination would have established in order to
preserve the complaint; it is enough to establish the general subject matter
on which the witness would have been questioned and, if challenged,
demonstrate why it should have been admitted into evidence. Virts, 739
S.W.2d at 29; Koehler, 679 S.W.2d at 9.
The "parameters of cross-examination for the showing of bias [rest]
on the sound discretion of the trial judge" who "must balance probative
value against prejudicial risks, i.e. undue prejudice, embarrassment,
harassment, confusion of the issues, and undue delay." Chambers v. State,
16 866 S.W.2d 9, 27 (Tex. Crim. App. 1993)(en banc). Accordingly, the trial
court's determination is not reversible absent a clear abuse of discretion. Id.
If the appellate court does determine that a trial court improperly
limited the scope of a defendant's cross-examination of a witness, and that
the error was preserved, this court must then conduct a harm analysis under
the three-prong analysis set out in Van Arsdall. Van Arsdall, 475 U.S. at
684.
Defendant submits that the court “improperly limited the scope of a
defendant's cross-examination of a witness,” and that the error was
preserved.
Defendant has a right to question the witness’ credibility, which he
was doing when he started questioning the witness about a prior inconsistent
statement regarding the ski mask, which bore on identity, a crucial element,
as well as the witness's general credibility. Furthermore, the witness was the
alleged victim, the most important witness in the case.
Making one statement to an investigator and then changing the
statement at trial certainly raises questions of credibility. The court, in
shutting defense counsel down, violated defendant’s right to full
confrontation of the key, primary adverse eyewitness. In stifling defendant’s
17 questioning of this witness, the court “improperly limited the scope of a
defendant’s cross examination of a witness.”
Under the Van Arsdall analysis, this court:
[first] assumes that the damaging potential of the cross-examination [was]
fully realized. Second, with that assumption in mind, [we] review the error
in connection with the following factors:
(1) The importance of the witness'[s] testimony in the prosecution's case;
(2) Whether the testimony was cumulative;
(3) The presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points;
(4) The extent of cross-examination otherwise permitted; and,
(5) The overall strength of the prosecution's case.
Finally, in light of the first two prongs, [we] determine if the error was
harmless. Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991)(en
banc) (citations omitted).
(1) Regarding “the importance of the witness'[s] testimony in the
prosecution's case,” Mr. Flach was extremely important because he was the
only eyewitness to the crime.
(2) Regarding “whether the testimony was cumulative,” Mr. Flach's
substantive testimony regarding the details of the alleged crime was not
18 cumulative, since he was a uniquely situated to provide facts that no one else
could provide.
(3) Regarding “the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points,” there was a
genuine fact question of the identity of the perpetrator.
(4) Regarding “the extent of cross-examination otherwise permitted” Mr.
Flach's credibility was extremely important because he was the only direct
witnesses available who was asserting or implying that the defendant was
the perpetrator.
(5) Regarding “the overall strength of the prosecution's case, the DA on the
one hand called many witnesses and proffered numerous exhibits. On the
other hand there was a genuine question of the identity of the perpetrator.
Because of the complexity of the testimony and the volume of evidence
presented, Mr. Flach's testimony was even more critical. Hence, the
defendant’s right to fully cross examine him was all the more accentuated as
crucial.
Based on the foregoing, the court violated defendant’s 6th Amendment
right to fully confront Mr. Flach in not permitting him to pursue this line of
questioning.
STRUCTURAL ERROR ARGUMENT
19 Under Texas Rule of Appellate Procedure 44.2, only certain federal
constitutional errors labeled by the United States Supreme Court as
"structural" are categorically immune to reversible error analysis. Salinas v.
State, 980 S.W.2d 219, 219 (Tex.Crim.App.1998). Structural error exists
when a defect at trial affects the framework within which the trial proceeds,
as opposed to error within the trial process itself. Arizona v. Fulminante, 499
U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302. "A structural error requires
automatic reversal and is not subject to harmless error analysis because it
involves a deprivation of a constitutional protection so basic that in its
absence, 'a criminal trial cannot reliably serve its function as a vehicle for
determination of guilt or innocence, and no criminal punishment may be
regarded as fundamentally fair.' " Bentley v. Scully, 41 F.3d 818, 823 n. 1
(2nd Cir.1994) (citing Arizona v. Fulminante, 499 U.S. at 310, 111 S.Ct.
1246). The Supreme Court "has applied harmless-error analysis to a wide
range of errors and has recognized that most constitutional errors can be
harmless. Fulminante, 499 U.S. at 306, 111 S.Ct. 1246. Involuntary
confessions have not been held to be structural error. Fulminante at 1265,
111 S.Ct. 1246.
Since the Court's decision in Cain v. State, 947 S.W.2d 262, 264
(Tex.Cr.App.1997), except for certain federal constitutional errors labeled
20 by the United States Supreme Court as "structural," no error, whether it
relates to jurisdiction, voluntariness of a plea, or any other mandatory
requirement, is categorically immune to a harmless error analysis. See
Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 1265, 113 L.Ed.2d
302 (1991). Structural error, which is subject to automatic reversal, has been
found only in six instances. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.
792, 9 L.Ed.2d 799 (1963) (total deprivation of the right to counsel); Tumey
v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (an impartial
judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598
(1986) (unlawful exclusion of members of the defendant's race from a grand
jury); McKaskle v. Wiggins, 465 U.S. 168, 177-78, n. 8, 104 S.Ct. 944, 950-
51, n. 8, 79 L.Ed.2d 122 (1984) (the right to self-representation); Waller v.
Georgia, 467 U.S. 39, 49, n. 9, 104 S.Ct. 2210, 2217, n. 9, 81 L.Ed.2d 31
(1984) (the right to public trial), and Sullivan v. Louisiana, 508 U.S. 275,
113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable doubt
instruction).
Although courts have not clearly deemed violations of the 6th
Amendment right of confrontation or due process to be structural error,
defendant argues that 6th Amendment right of confrontation was violated
21 when the court denied defendant the right to impeach the witness through
prior inconsistent statement and that this constitutes structural error.
ISSUE #3: INEFFECTIVE ASSISTANCE OF COUNSEL
Defense counsel was ineffective in failing to assert the 6th
Amendment right of confrontation in response to the state's objection, or for
making an offer of proof.
Alternatively, defendant argues that the error of the court denying
defendant the right to impeach the witness through prior inconsistent
statement contributed to an increase in appellant's conviction beyond a
reasonable doubt and that trial counsel was ineffective in failing to assert
defendant's 6th Amendment right of confrontation in response to the state's
STANDARD OF REVIEW
To show ineffective assistance of counsel, an appellant must
demonstrate that (1) counsel's representation fell below an objective
standard of reasonableness based on prevailing professional norms, and (2)
but for counsel's errors, there is a reasonable probability the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S.
668, 687-88, 694. This standard of proof of ineffective assistance applies to
22 the punishment phase as well as to the trial stage of criminal proceedings.
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).
ARGUMENT
Appellant has the burden of proving his claim by a preponderance of
the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App.
1998). The court applies a strong presumption that defense counsel was
competent. Thompson v. State, 9 S.W.3d 808, at 813. (Tex. Crim. App,
1999) It is presumed that defense counsel's strategy was sound and that the
representation was reasonable. Gamble v. State, 916 S.W.2d 92, 93 (Tex.
App.--Houston [1st Dist.] 1996, no pet.). In assessing whether a defendant
has overcome these presumptions, the court is limited to the facts of the
case. Thompson, 9 S.W.3d at 813.
An appellant "making a claim of ineffective assistance must identify
the acts or omissions of counsel that are alleged not to have been the result
of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S. Ct.
at 2052. Any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Thompson, 9 S.W.3d at 813. The court cannot speculate
beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).
23 The Court of Criminal Appeals of Texas has held, however, that a
motion for new trial claiming ineffective assistance of counsel is not always
required to preserve that claim. See Robinson v. State, 16 S.W.3d 808, 809-
10 (Tex. Crim. App. 2000). A timely filed appeal is a proper procedure for
seeking relief regarding ineffective assistance of counsel. See id. A hearing
on a motion for new trial is required only when the motion raises matters
extrinsic to the record. See Castoreno v. State, 932 S.W.2d 597, 605 (Tex.
App.--San Antonio 1996, pet. ref'd). When an appellant's allegations of
ineffective assistance of counsel are firmly founded and affirmatively
demonstrated in the record, no evidentiary hearing is required. See
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996);
Castoreno, 932 S.W.2d at 605.
Failure to object may be held ineffective on appeal or a writ
application. Ex Parte Davis, 866 SW2d 234, (Tex. Crim. App. 1993) A
single material omission can constitute ineffective assistance. See, eg, Ex
Parte Felton, 815 SW2d 733, (Tex. Crim. App. 1991) Failure to preserve
appellate complaints can be the basis for a claim of ineffective assistance of
counsel. Weathersby v. State, 627 SW2d 729, (Tex. Crim. App. 1982).
(Failure to object to improper opinion testimony)
24 Trial counsel is charged with knowledge of the applicable law. When
trial counsel mistakenly misinforms a defendant that he is eligible for
probation when he is in fact not eligible for probation, counsel's
representation falls below an objective standard of reasonableness, satisfying
the first prong of Strickland. See Aldrich v. State, 296 S.W.3d 225, 242
(Tex. App. -- Fort Worth 2009, pet. ref'd). See Ex parte Welch, 981 S.W.2d
183, 195 (Tex. Crim. App. 1998).
In the instant case, defendant argues that defense counsel was
ineffective in failing to assert defendant's 6th Amendment right of
confrontation in response to the state's objection, or for making an offer of
proof. Defense counsel should have recognized that defendant's 6th
Amendment right of confrontation and due process rights were being
violated when the state started objecting to his proper impeachment attempt.
The need to object is furthermore accentuated in light of the fact that
defendant made an affirmative election not to testify in the guilt/innocence
phase. The state basically scored an advantage in shutting defendant down.
Defendant's constitutional rights were violated. Defendant did not have a fair
trial. An injustice was committed. A new trial is required.
CONCLUSION AND PRAYER
25 For the foregoing reasons, defendant respectfully requests that the
Court of Appeals vacate, overrule, or reverse the verdict of guilty and order
a new trial.
Respectfully Submitted,
___________________ Chris Iles Attorney at Law Park Tower 710 Buffalo Street, #802 Corpus Christi, Tx. 78401 361.883.2020 Fax: 866.565.5343 SBOT# 00789391 Appointed Counsel for Defendant/Appellant CERTIFICATE OF SERVICE
This is to certify that a copy of this brief was emailed and faxed to the District Attorney fax# 8306726527 on 1-22-15 and sent via regular mail to defendant Damion Navarro, TDC# 01952710, Hodge Unit, 379 FM 2972 West, Rusk, TX 75785-3666.
___________________ Chris Iles
RULE 9.4 (I) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the number of words in this brief, excluding those matters listed in Rule 94.(i)(1), is 4,696.
___________________ 26 Chris Iles