ACCEPTED 01-15-00238-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 11/30/2015 1:27:49 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00238-CR
IN THE COURT OF APPEALS FILED IN FOR THE FIRST DISTRICT OF TEXAS 1st COURT OF APPEALS HOUSTON, TEXAS 11/30/2015 1:27:49 PM CHRISTOPHER A. PRINE DANG DUY TRUONG Clerk Appellant
v.
THE STATE OF TEXAS Appellee
On Appeal from Cause Number 1410374 From the 262nd District Court of Harris County, Texas
BRIEF FOR THE APPELLANT
TONYA ROLLAND MCLAUGHLIN TBN 24054176 815 Walker St., Suite 1047 Houston, Texas 77002 Phone: (713) 529-8500 Fax: (713) 456-2203
Counsel for Appellant
ORAL ARGUMENT RESPECTFULLY REQUESTED IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Dang Duy Truong TDC# 01984623 4250 Highway 202 Beeville, Texas 78102
TRIAL PROSECUTORS: Erin Epley Donna Logan Assistant District Attorneys Harris County, Texas 1201 Franklin Avenue Houston, Texas 77002
DEFENSE COUNSEL AT HEARING: Thomas Radosevich 1821 Houston Avenue Houston, Texas 77007
COUNSEL ON APPEAL FOR APPELLANT: Tonya Rolland McLaughlin 815 Walker St., Suite 1047 Houston, Texas 77002
PRESIDING JUDGES: Hon. Denise Bradley Hon. Wayne Mallia 262nd District Court Harris County, Texas 1201 Franklin Avenue Houston, Texas 77002
2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .................................................................... 2
TABLE OF CONTENTS ....................................................................................................... 3
INDEX OF AUTHORITIES ................................................................................................ 4
STATEMENT OF THE CASE ............................................................................................. 5
STATEMENT REGARDING ORAL ARGUMENT ...................................................... 6
ISSUE PRESENTED .............................................................................................................. 7
STATEMENT OF FACTS ..................................................................................................... 7
SUMMARY OF THE ARGUMENT .................................................................................12
ARGUMENT ..........................................................................................................................12
TRIAL COUNSEL WAS INEFFECTIVE DURING THE PUNISHMENT PHASE BY FAILING TO INVESTIGATE APPELLANT’S BACKGROUND OR PRESENT MITIGATION EVIDENCE.
STANDARD OF REVIEW. ........................................................................................... 12
ANALYSIS. ................................................................................................................... 13
CONCLUSION. ............................................................................................................ 16
PRAYER...................................................................................................................................17
CERTIFICATE OF SERVICE ............................................................................................17
CERTIFICATE OF COMPLIANCE .................................................................................18
3 INDEX OF AUTHORITIES Cases
Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004)............................................................ 13
Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990).. ...................................................... 13
Lopez v. State, 462 S.W.3d 180 (Tex. App. -- Houston [1st Dist.] 2015). ...................................... 13
Milburn v. State, 15 S.W.3d 267 (Tex. App. -- Houston [14th Dist.] 2000, pet. ref'd) ..................... 14
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) ......................................12, 13, 15
Wiggins v. State, 539 U.S. 510 (2003) ................................................................................................ 14
Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986) ....................................................... 12
Constitutional Provisions, Statutes and Rules
U.S. Const. ............................................................................................................................... 12
TEXAS CONST. .......................................................................................................................... 12
TEX. CODE CRIM. PROC. ANN. ART. 44.29(B) (2013) ............................................................. 17
TEX. R. APP. PROC. 38.1(E) .........................................................................................................6
4 STATEMENT OF THE CASE
Appellant was charged in cause number 1410374 with Aggravated Robbery
alleged to have occurred on or about September 28, 2013. (1 CR at 6).1 On February
25, 2015, a jury found Appellant guilty and sentenced him to forty (40) years in the
Institutional Division of the Texas Department of Corrections. (1 CR at 128).
Appellant filed a timely notice of appeal on that day. (1 CR at 131). Appellant filed
and presented a Motion for New Trial on March 25, 2015. (1 CR at 138). The trial
court denied the motion on April 29, 2015. (1 CR at 135).
1 CR is for the Clerk’s Record. RR is for the supplemental reporter’s record.
5 STATEMENT REGARDING ORAL ARGUMENT
Oral argument should be permitted because this appeal is not frivolous and the
facts and legal arguments are adequately presented. TEX. R. APP. PROC. 38.1(e).
Appellant requests oral argument because the Court of Appeal’s decision, whether the
trial counsel was ineffective, would be significantly aided by oral argument.
6 ISSUE PRESENTED
ISSUE ONE: TRIAL COUNSEL WAS INEFFECTIVE DURING THE PUNISHMENT PHASE BY FAILING TO INVESTIGATE APPELLANT’S BACKGROUND OR PRESENT MITIGATION EVIDENCE.
STATEMENT OF FACTS
Appellant, Dang Truong, was 22 years old at the time he was charged with
Aggravated Robbery. (CR at 6). Defense counsel, Thomas Radosevich, was appointed
to represent him six months before trial. (CR at 17). The original plea offer from the
State was twenty five years. (CR at 18). On February 24, 2015, Judge Bradley
conducted voir dire and the following day visiting Judge Wayne Mallia presided over
the remainder of the trial. (3 RR at 4, 122). The guilt and innocence phase through the
end of the punishment phase lasted only one day.
Mr. Radosevich plead not guilty on behalf of Appellant at trial. (4 RR at 23). He
waived opening argument. (5 RR at 92). The State introduced a video, through
Detective Jeffrey Miller, of Appellant with a gun and appearing to rob a business. (4
RR at 30). Mr. Radosevich did not cross examine Det. Miller. (5 RR at 75). Next,
complainant, Hoan Pham, testified Appellant entered the business and shot him in the
arm and tried to shoot him in the face, but the gun did not fire. (5 RR at 81-84). Mr.
Radosevich did not cross examine Mr. Pham, although; Appellant denied shooting the
complainant or aiming a gun at his face. (4 RR at 91, 93-94). After the State rested,
Mr. Radosevich requested a short recess to talk to Appellant and then called him to
7 the stand. (4 RR at 92-93). Mr. Radosevich did not prep Appellant to testify; he
decided, at that moment, Appellant would testify. (7 RR at 99).
Appellant took the stand and admitted he gave in to peer pressure and
committed the armed robbery while intoxicated. (4 RR at 94-95). Appellant’s name
and age were the only personal questions Mr. Radosevich asked him on the stand. (4
RR 93-94). Mr. Radosevich did not object during the State’s cross of Appellant and
did not redirect. (4 RR at 114). Mr. Radosevich concluded the guilt innocence phase
of trial by waiving closing argument. (4 RR at 117). The State’s close acknowledged
“it’s been a fast trial.” (Id.). The jury found him guilty. (4 RR at 20).
During the punishment phase, Mr. Radosevich again called Appellant to the
stand to briefly question him about his knowledge of probation and did not offer any
mitigation evidence. (5 RR at 5 8). He did not redirect after the State’s cross of
Appellant or call any additional witnesses to testify. (5 RR 10). Mr. Radosevich began
his closing punishment argument by pointing out to the jury they “didn’t hear from
defendant’s family and you can infer he doesn’t have any or doesn’t like him” and
they “didn’t see any friends.” (5 RR at 15). The State’s close equated this case to a
capital murder without objection from Mr. Radosevich. (5 RR at 13). The State
commented that Appellant’s demeanor on the stand is nice, sweet and modest but
calls him a liar and then asks the jury to sentence him to a minimum of forty years. (5
RR at 18, 24). The jury sentenced him to forty years. (5 RR at 27).
8 Counsel on appeal presented a motion for new trial alleging ineffective
assistance of counsel during the punishment phase. (CR at 135). Judge Bradley heard
arguments for the motion for new trial. (6 RR at 1). Appellate counsel offered into
evidence affidavits from Mr. Radosevich, Lott Brooks, Lucy Thai, Kim Ho and
Christine Nguyen. (6 RR at 5 6; 7 RR at 99-106).
Appellant’s adoptive mother, Lucy Thai, was never contacted by Mr.
Radosevich. (7 RR at 103). Ms. Thai’s statement, through a Vietnamese interpreter,
was that had she would have told the jury about her son’s history. (Id.). He was born
to her single, mentally ill, fifteen year old sister in Vietnam. Appellant went to live in a
Vietnamese orphanage at five years old when his birth mother died. (Id.). Thai later
adopted him and they came to the United States as refugees when he was eight years
old. (Id.).
Appellant’s ex-girlfriend, Kim Ho, was willing to testify on Appellant’s behalf.
(7 RR at 105). She remained friends with him even after ending their dating
relationship three years prior and believes him to be a sweet person and remorseful of
the situation. (Id.). According to Ms. Ho, Mr. Radosevich would never get back to her
about arranging a meeting and did not tell her about trial. (Id.).
Appellant’s childhood friend, Christine Nguyen, swears she tried to meet up
with Mr. Radosevich multiple times and he would not return her texts or calls for
days. (7 RR at 106). Ms. Nguyen was not asked by Mr. Radosevich to testify, but
would have told the jury she met Appellant in Sunday school at the Incarnate Word 9 when they were twelve years old. (Id.). He is like a little brother to her and she was
surprised by this arrest. (Id.). He did not have much growing up, but was always
willing to help others. (Id.).
Mr. Radosevich acknowledged in an affidavit on April 7, 2015, that he did not
subpoena witnesses, although he knew some were available, and “it is critical for the
defense to present witnesses in mitigation of punishment, to humanize the defendant
in the eyes of the jury and show them that family and friends cared deeply.” (7 RR at
99). Mr. Radosevich states he was not advised Appellant had any relatives and
submitted a form he uses to help prepare witnesses. (7 RR at 99, 101). He states Ms.
Nguyen and Ms. Ho believed attorney, Lott Brooks, would be hired to handle the
case and that his inability to persuaded them to help Appellant hurt him at
punishment. Mr. Brooks was not retained for this case and only spoke to family the
week before trial. (7 RR at 102).
On April 27, 2015, Mr. Radosevich signed an affidavit for the prosecution
restating that he had been in contact with Ms. Nguyen and Ms. Ho leading up to trial,
they believed Mr. Brooks would be retained and he was not aware Appellant had
family. (7 RR at 98). Mr. Radosevich claimed to have sent Appellant nine letters and
memorandums explaining what was needed from family and friends to defend him.
(Id.).
The State argued to the trial court, during the motion for new trial hearing, that
because Appellant took the stand during his trial, he offered “the sum total of the 10 mitigation evidence” that would have been available. (6 RR at 11). The State misstated
the record and told the trial court Appellant testified at trial that he could not
remember the names of his childhood friends or their parents, when in fact; this
testimony was only regarding his co-defendants. (6 RR at 14). Additionally, the State
urged that Appellant testified at trial “he had no family, that his family was dead, that
he was alone.” (6 RR at 12). This is nowhere in the reporter’s record.
11 SUMMARY OF THE ARGUMENT
Appellant complains trial counsel was ineffective during the punishment phase
of his trial. Trial counsel did not call witnesses for punishment, who he knew were
willing to testify, or inquire into the background or family of the Appellant. Trial
counsel was clearly unprepared for trial and did not present any defensive theory.
ARGUMENT
ISSUE: TRIAL COUNSEL WAS INEFFECTIVE DURING THE PUNISHMENT PHASE BY FAILING TO INVESTIGATE APPELLANT’S BACKGROUND OR PRESENT ANY MITIGATION EVIDENCE.
S TAN DARD OF R EV IEW
Appellant was entitled to effective assistance of counsel at every stage of his
trial under the United States Constitution and the Texas Constitution. Wilkerson v.
State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). To prevail on his claim of
ineffective assistance of counsel, Appellant must show that (1) his counsel’s
performance was deficient and (2) a reasonable probability exists that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To
show deficiency, Appellant must prove by a preponderance of the evidence that
counsel’s representation objectively fell below the professional norms. Id. This Court
looks to the totality of the representation to determine effectiveness of counsel. Id. at
688-689. Because Appellant raised his ineffective assistance claim in a motion for new
12 trial, the Court will review under an abuse of discretion standard. Charles v. State, 146
S.W.3d 204, 208 (Tex. Crim. App. 2004).
A NALYSIS
At only 23 years old, Appellant faced a potential life sentence at trial. Counsel is
expected, at a minimum, to use his professional judgment to prepare for trial and
advise his client. Strickland, 466 U.S. at 680-681; 104 S. Ct. at 2060-61. Mr. Radosevich
admittedly did not subpoena or call punishment witnesses to testify on behalf of the
Appellant, although he knew some were available. (7 RR at 99). His performance fell
below an objective standard of reasonableness; therefore, the first prong of Strickland
was met in support of Appellant’s motion for new trial. Id. The professional and
ethical responsibility of a criminal defense attorney includes the duty to locate,
interview, and call potential witnesses. The failure to do so constitutes ineffective
assistance of counsel. Ex parte Welborn, 785 S.W.2d 391, 394-395 (Tex. Crim. App.
1990).
Mr. Radosevich attached a form letter to his first affidavit as an example of
how he prepares witnesses. (7 RR at 101). However, this is just that, a form letter. Mr.
Radosevich does not claim, nor provide proof, that a similar letter went to any
potential witnesses. Furthermore, this Court, has held that issuing a form letter to
delegate the task of developing character witnesses for punishment is not enough.
Lopez v. State, 462 S.W.3d 180, 187 (Tex. App. –Houston [1st Dist.] 2015). Trial 13 counsel has a professional obligation to conduct reasonable investigation into the
defendant’s background and into his character. Id. The failure to interview and call
witnesses who are available to testify at the punishment stage and whose testimony
would have been beneficial to the defendant cannot be labeled as “sound trial
strategy.” Milburn v. State, 15 S.W.3d 267, 270 (Tex. App. – Houston [14th Dist.] 2000,
pet. ref’d).
Mr. Radosevich put Appellant on the stand during both guilt innocence and the
punishment stage, but did not elicit any meaningful testimony from him. The jury was
left without any idea of where Appellant came from, where he lived, where he
worked, where he went to school, or if he was remorseful. The Supreme Court has
recognized that a failure to uncover and present mitigating evidence cannot be
justified as a tactical decision when defense counsel has not conducted a thorough
search of the defendant’s background. Wiggins v. State, 539 U.S. 510, 534 (2003).
Not only did Mr. Radosevich not call character witnesses on behalf of
Appellant during the punishment stage, he began his closing punishment argument by
telling the jury “you didn’t hear from any of Mr. Truong’s family, and you can infer
that he doesn’t have any family, or you can infer that his family doesn’t like him.” (5
RR at 15). What reasonable, advocate would ever begin a punishment argument for a
violent offense by insinuating not even the defendant’s own family likes him? Mr.
Radosevich’s representation of the Appellant is truly baffling.
14 Based on the second prong in Strickland, it is reasonably probable that, but for
Mr. Radosevich’s unprofessional errors, the result of Appellant’s punishment stage
would have been different. For instance, consider the totality of the representation.
During guilt innocence, Mr. Radosevich plead not guilty for Appellant, waived open,
failed to cross examine State’s witnesses, last minute threw Appellant on the stand,
and waived close. He then proceeded to the punishment stage by failing to call any
character witnesses or offering meaningful mitigating evidence. Mr. Radosevich
continued in close to try and minimize the Appellant’s responsibility when the jury
had already convicted him. He also mentions in both affidavits that he believed
attorney Lott Brooks would be hired, thus implying he did not adequately prepare for
trial because he thought Mr. Brooks would be substituting in for Appellant. (7 RR at
97, 99).
In contrast, a reasonable probability exists that Appellant’s sentence would
have been less severe had the jury balanced the aggravating and mitigating
circumstances. Mr. Radosevich could have plead guilty on behalf of Appellant at the
beginning of trial and gave an opening statement preparing the jury for what the
evidence was about to show. This would have allowed the jury to proceed to the
punishment stage already digesting that Appellant was accepting responsibility for the
offense and felt remorse. Had the jury been given the opportunity to hear Ms. Thai’s
testimony, they would have been able to weigh the facts that Appellant was in the
United States as a legal refugee and what he had faced as a young orphan in Vietnam. 15 (7 RR at 103). The jury could have simply known, despite Mr. Radosevich’s close, that
Appellant had family that cared. Ms. Nguyen and Ms. Ho’s character testimony would
have humanized Appellant for the jury and shown a softer side of him to contrast
against the violent offender painted by the State. Mr. Radosevich should have
objected when the State misstated the law and the evidence and proclaimed to the jury
during punishment close “for the grace of God this is a capital murder.” (5 RR at 13).
Then the jury may not have returned a sentence typical of a murder conviction.
C ONCLUSION
The State argued at the end of the punishment phase that it is trial counsel’s job
to “protect his client and… beg for leniency because he is a young kid.” (5 RR at 21).
Agreed. This trial would have ended differently had Mr. Radosevich provided that
simple defense. Defense counsel is the voice of the defendant and what the defense
says or fails to say reflects on the defendant. Mr. Radosevich had six months to
prepare for the most important day in Appellant’s life. When that day came, he failed
his client, failed to be a zealous advocate and ultimately failed to be effective.
16 PRAYER
Appellant prays this Court to reverse the trial court’s order denying Appellant’s
motion for new trial and remand the cause for a new punishment hearing pursuant to
article 44.29(b) of the Texas Code of Criminal Procedure.
Respectfully submitted,
_s/Tonya Rolland McLaughlin Tonya Rolland McLaughlin 815 Walker St., Suite 1047 Houston Texas 77002 Phone: (713) 529-8500 Fax: (713) 453-2203 TBN 24054176
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been delivered via e-service to the following:
curry_alan@dao.hctx.net Chief Prosecutor, Appellate Division Harris County District Attorney’s Office 1201 Franklin Suite 600 Houston, Texas 77002-1923
_s/Tonya Rolland McLaughlin Tonya Rolland McLaughlin
17 CERTIFICATE OF COMPLIANCE
I certify that this computer-generated document has a word count of 3,015 words, based upon the representation provided by the word processing program used to create the document.