Jones, Steven Lynn

Opinion

PD-0639-15

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 6/29/2015 11:29:12 AM Accepted 6/29/2015 4:51:32 PM No. PD-0639-15 ABEL ACOSTA CLERK

(Court of Appeals No. 05-14-00243-CR)

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

STEVEN LYNN JONES,

Petitioner,

v.

THE STATE OF TEXAS

PETITIONER'S PETITION FOR DISCRETIONARY REVIEW

On discretionary review from the Court of Appeals Fifth District of Texas at Dallas

MELVYN CARSON BRUDER

516 Turley Law Center

6440 N. Central Expressway Dallas, Texas 75206

June 29, 2015 214.987.3500 214.987.3518 Telecopier

Counsel for Petitioner

IDENTITY OF JUDGE, PARTIES, AND COUNSEL The trial court judge in this case was Mark Rusch.

The parties to the judgment in this case are Steven Lynn Jones and the State of Texas.

The names and addresses of all trial and appellate counsel are:

Matt Rolston

Assistant Criminal District Attorney Collin County Courthouse

2100 Bloomdale Road

McKinney, TX 75071

Trial Counsel for the State of Texas

Joe Greco

207 E. Lamar Street

McKinney, TX 75070

Trial Counsel for Mr. Jones

Justin Johnson

Assistant Criminal District Attorney Collin County Courthouse

2100 Bloomdale Road

McKinney, TX 75071

Appellate Counsel for the State of Texas

Melvyn Carson Bruder

516 Turley Law Center

6440 N. Central Expressway Dallas, TX 75206

Appellate Counsel for Mr. Jones

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TABLE OF CONTENTS

Identity of Judge, Parties, and Counsel ................................................................. I Table of Contents ................................................................................................. ii Index of Authorities ............................................................................................ iv Statement Regarding Oral Argument ................................................................... 2 Statement of the Case ........................................................................................... 2 Statement of the Procedural History of the Case ................................................. 2 Ground for Review ............................................................................................... 3

The court of appeals erred by concluding that Mr. Jones was not deprived of the effective assistance of counsel because his appellate counsel failed to timely file a Rule 20.2 motion and affidavit requesting that Mr. Jones be furnished with an appellate record without charge.

Argument .............................................................................................................. 3 Relevant Facts ....................................................................................................... 3 How the Court of Appeals Decided The Grounds for Review .................. 3 Argument .................................................................................................... 5 Conclusion ................................................................................................ 12 Prayer for Relief .................................................................................................. 13 Certificate of Service ........................................................................................... 14 Certificate of Compliance ................................................................................... 14 Appendix A - Opinion of the Court of Appeals in Jones v. State ..................... 15 Appendix B - Order Denying Motion for Rehearing in Jones v. State ............ 16

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INDEX OF AUTHORITIES

Cases:

Andrews v. State 159 S.W.3d 98 (Tex.Crim.App.2005) ............................................ 11

Bone v. State 77 S.W.3d 828, 833 (Tex.Crim.App.2002) ................................. 4, 9

Evitts v. Lucey 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) ............ passim

Guillory v. State 557 S.W.2d 118 (Tex.Crim.App.1977) ......................................... 10

Jones v. State No. 05-14-00243-CR (Tex.App. – Dallas Mar. 13, 2011) ..... passim

Oldham v. State 977 S.W.2d 354 (Tex.Crim.App.1998) ......................................... 11

Ex parte Perez 479 S.W.2d 283 (Tex.Crim.App.1972) ................................... 10, 11

Prudhomme v. State 28 S.W.3d 114 (Tex.App. – Texarkana 2000) ........................... 5, 11

Reese v. State 481 S.W.2d 8411 (Tex.Crim.App.1972) ......................................... 6

Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1987) .......... passim

Ward v. State 740 S.W.2d 794 (Tex.Crim.App.1987) .................................. passim

Constitutions:

U.S.CONST.amend VI ........................................................................... 9, 10 U.S.CONST.amend XIV ...................................................................... passim

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Rules:

TEX.R.APP.P. 4.1 ........................................................................................ 3 TEX.R.APP.P. 20.2 ............................................................................. passim TEX.R.APP.P. 25.2 ....................................................................................... 5 TEX.R.APP.P. 33 ......................................................................................... 6 TEX.R.APP.P. 34 .......................................................................................... 6

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No. PD-0639-15

(Court of Appeals No. 05-14-00243-CR)

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

STEVEN LYNN JONES,

Petitioner,

v.

THE STATE OF TEXAS

PETITIONER'S PETITION FOR DISCRETIONARY REVIEW

On discretionary review from the Court of Appeals Fifth District of Texas at Dallas

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

STEVEN LYNN JONES, Petitioner, petitions this Court to grant discretionary review to review the judgment of the Court of Appeals for the Fifth District of Texas affirming his conviction for arson because the court of appeals has decided an

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important question of law in a way that conflict with applicable decisions of this Court and of the Supreme Court of the United States. See TEX.R.APP.P. 66.3©.

In particular, the court of appeals erred in concluding that Mr. Jones was not deprived of the effective assistance of counsel because he failed to timely file a motion and affidavit requesting that he be furnished with an appellate record without charge, as required by Rule 20.2.1 STATEMENT REGARDING ORAL ARGUMENT Mr. Jones believes that oral argument will be helpful to the Court in resolving the grounds for review because of the nature of the issues presented in the ground for review.

STATEMENT OF THE CASE

This is an appeal from a conviction for arson.2 However, the ground for review in this case involve issues related to whether Mr. Jones’s appellate counsel was ineffective because he failed to timely file a motion and affidavit under Rule 20.2 that Mr. Jones be provided with a record on appeal without charge to him.

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE The court of appeals affirmed Mr. Jones’s conviction on 13 March 2015. Jones v. State, No. 05-14-00243-CR, Tex.App. – Dallas, 13 March 2011, unpublished.3 A

1 TEX.R.APP.P. 20.2.

2 Clerk’s Record (CR) 29 (Judgment).

3 A copy of that opinion is appended hereto as Appendix A.

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timely-filed motion for rehearing4 was denied on 29 April 2015.5 GROUND FOR REVIEW

The court of appeals erred by concluding that Mr. Jones was not deprived of the effective assistance of counsel because his appellate counsel failed to timely file a Rule 20.2 motion and affidavit requesting that Mr. Jones be furnished with an appellate record without charge.

ARGUMENT

RELEVANT FACTS

Mr. Jones was sentenced on 11 February 2014.6 He filed a notice of appeal on 27 February 2014.7 A Request for Appellate Record and Affidavit in Support of Request for Appellate Record were filed on 14 April 2014.8 Following a hearing on that request held on 28 April 2014, the trial court ruled that Mr. Jones was not indigent9 and concluded in his Findings of Fact and Conclusions of Law that “[t]he affidavit was filed after the time period permitted by TEX.R.APP.PROC. 20.2.”10 HOW THE COURT OF APPEALS DECIDED GROUND FOR REVIEW NO. 1 Mr. Jones argued to the court of appeals that the failure of his appellate counsel

4 The Petitioner filed his motion for rehearing on 13 April 2015, which was the Monday after 12 April 2013, the day on which the motion was due to be filed. See TEX.R.APP.P. 4.1. 5 A copy of the order denying the motion for rehearing is appended to this petition as Appendix B.

6 CR 29 (Judgment).

7 CR 47.

8 CR 53, 55.

9 Reporter’s Record (RR) 19.

10 Supplemental Clerk’s Record 4.

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to timely request an appellate record without charge to him constituted ineffective assistance of counsel, citing Evitts v. Lucey11 and Ward v. State.12 Appellant’s Brief at 8-9, Jones v. State, supra. He further argued that based on the standard of review set out in Evitts and in Ward, all of the facts necessary to a resolution of the ineffective-assistance-of-counsel issue were before the court and that the issue was capable of being resolved without the necessity of developing additional facts. Id. at 10.

The court of appeals correctly concluded that Mr. Jones’s request to have the appellate record furnished to him without charge was filed late.13 The court addressed Mr. Jones’s argument that his counsel was ineffective because of his failure to timely file a Rule 20.2 motion and affidavit as follows:

Jones also argues that we should reverse the trial court’s decision because the failure to timely file the rule 20.2 motion and affidavit was due to the ineffective assistance of counsel. Under normal circumstances, however, the record on direct appeal will not be sufficient to demonstrate that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional.

Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). The present case is no different. Jones’s counsel did not specifically discuss the deadline for requesting a free reporter’s record, but his testimony at the April 2014 hearing suggests that the March 21, 2014 bond hearing was the first time he had any actual notice Jones might be indigent. It is also possible that counsel may have believed, prior to the bond hearing, that since Jones was represented by retained counsel, he would not be able

11 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

12 740 S.W.2d 794 (Tex.Crim.App.1987).

13 Jones v. State, supra, slip op. 5 (“the record supports the trial court’s conclusion that Jones’s request for a free appellate record was untimely, and the trial court could have denied Jones’s motion based on his failure to exercise due diligence in asserting his indigence”).

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to meet the evidentiary showing required to establish that he was indigent. See TEX.CODE CRIM.PROC.ANN. art. 1.051(b) (defining “indigent” person as one “not financially able to employ counsel”);

Eastley v. State, 248 S.W.3d 272, 279-80 (Tex.App – Houston [1st Dist.] 2007, pet.ref’d). Without a more complete record, we simply cannot conclude counsel provided ineffective assistance. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005).

Jones, supra, 9-10.

Mr. Jones filed a Motion for Rehearing in which he reurged that the rule set out in Evitts and Ward applied in this case, discussed that rule and compared it with the rule in Strickland,14 and noted that the court of appeals wholly ignored his argument based on Evitts and Ward in its original opinion. Appellant’s Motion for Rehearing 3-7, Jones v. State, supra. The motion was overruled without opinion or comment.

ARGUMENT

It is beyond peradventure that when a state elects to provide appellate review following a conviction for crime, the Due Process Clause of the Fourteenth Amendment commands that an accused be provided with an appellate record in order that his appeal be adequate and effective, and that he have the effective assistance of counsel. Evitts, supra, 469 U.S. at 394-97; Ward, supra, 740 S.W.2d at 796, 799- 801. Texas provides for appellate review of criminal convictions.15 Therefore, a person who appeals his conviction is is entitled to the effective assistance of counsel, whether that counsel is appointed or retained. Evitts, supra; Ward, supra; Prudhomme v. State, 28 S.W.3d 114, 119 (Tex.App. – Texarkana 2000, no pet.).

14 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1987).

15 TEX.R.APP.P. 25.2.

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In Texas, appellate review is based exclusively on an appellate record, which consists of a clerk’s record and a reporter’s record.16 Without a reporter’s record no meaningful appellate review of a criminal conviction is possible; the absence of a reporter’s record renders an appeal a “meaningless ritual.” Ward, supra, 740 S.W.2d at 800; and see Reese v. State, 481 S.W.2d 841, 842 (Tex.Crim.App.1972). Thus, the failure of an appellate attorney to take the necessary steps required by law to obtain a reporter’s record for the appellant’s use on appeal deprives the appellant of a meaningful appellate review of his conviction and amounts to ineffective assistance of counsel. In Evitts and in Ward the courts concluded that the failures of the appellants’ counsel “to comply with a simple procedural rule” that operated to deny the appellants an opportunity at a meaningful time and in a meaningful manner to present their appeals amounted to ineffective assistance of counsel. See Ward, supra, 740 S.W.2d at 800. The same scenario occurred in this case; however, the court of appeals did not reach the same result as in Evitts and in Ward.

In Evitts the accused’s retained “counsel failed to file a statement of appeal when he filed his brief and record on appeal.” Because of that failure the Kentucky appellate court dismissed Lucey’s appeal. For seven years thereafter Lucey pursued his effort to obtain a meaningful appellate review of his conviction, eventually challenging the dismissal of his appeal “on the ground that the dismissal [of his appeal] deprived him of his right to effective assistance of counsel on appeal guaranteed by the Fourteenth Amendment.” Evitts, supra, 469 U.S. at 391. The issue

16 Id. 33 and 34.

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decided in Evitts was “whether the state court’s dismissal of the appeal, despite the ineffective assistance of [Lucey’s] counsel on appeal, violates the Due Process Clause of the Fourteenth Amendment.” Id. at 391. That issue was framed based on the legal conclusion that Lucey “indeed received ineffective assistance of counsel on appeal” because ”his counsel’s failure to obey a simple court rule” had the drastic consequence of depriving Lucey of meaningful appellate review of his conviction. Id. at 392.

In Ward the accused’s appointed counsel, who represented him at his probation revocation proceeding, timely filed a notice of appeal but “fail[ed] to designate timely the record and therefore fail[ed] to have a statement of facts included in the appellate record.” Ward, supra, 740 S.W.2d at 795. This Court held that the attorney who filed the notice of appeal was obligated to continue his representation of Evans, unless and until he was relieved, but because he filed neither a statement of facts or a brief he “performed no duties necessary to an adequate appeal,” id. at 799, and concluded that he rendered ineffective assistance. Id. at 800. The Ward Court explained the holding in Evitts, and its application to Ward as follows:

In Evitts v. Lucey [citation omitted] the Supreme Court held that there is a constitutional guarantee of effective assistance of counsel on appeal in every criminal prosecution, whether counsel is appointed or retained.

In Evitts, a defendant’s retained counsel filed notice of appeal, brief and record. Counsel failed to submit a statement of facts required by the Kentucky Rules of Appellate Procedure. The Kentucky Court of Appeals dismissed the defendant’s appeal for failure to file a statement of facts. The Supreme Court ultimately affirmed the granting of a writ of habeas corpus on the ground that the appellant had been denied effective assistance of counsel The Supreme Court held:

In bringing an appeal as of right form his conviction, a criminal

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defendant is attempting to demonstrate that the conviction, and the consequent loss of liberty, is unlawful. To prosecute the appeal, a criminal defendant must face an adversary proceeding that like a trial is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant like an unrepresented defendant at trial is unable to protect the vital interests at stake. To be sure, respondent did have nominal representation when he brought this appeal. But nominal representation on an appeal as of right like nominal representation at trial does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all. Id., 105 S.Ct. at 836.

The Supreme Court held that counsel’s failure to file the statement of facts constituted a lack of effective assistance of counsel on appeal in violation of the Due Process Clause of the Fourteenth Amendment. The Court noted, “counsel’s failure was particularly egregious in that it essentially waived respondent’s opportunity to make a case on the merits; it is difficult to distinguish respondent’s situation from that of someone who had no counsel at all.” Id. at 835, fn.6.

In this regard the appellant’s situation and that in Evitts are factually similar. Furthermore, the failure of counsel in each case to comply with a simple procedural rule operated to deny appellant an opportunity at a meaningful time and in a meaningful manner to present his appeal.

Armstrong v. Manzo, 380 U.S.545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62, 66 (1965). In Texas, the absence of a statement of facts severely limits appellate review. Hale v. State, 509 S.W.2d 637 (Tex.Cr.App.

1974); Bush v. State, 370 S.W.2d 875 (Tex.Cr.App.1963).

Consequently, the absence of a statement of facts renders appellant’s appeal a “meaningless ritual.” Evitts, 469 U.S. at 394, 105 S.Ct. At 834, 83 L.Ed.2d at 828.

Because Ward “as a practical matter received no assistance as to the substantive issues that may be presented on appeal,” this Court concluded that he had been denied his right to effective assistance of counsel on appeal in violation of the Fourteenth Amendment. Ward, supra, at 800.

The conclusion of the court of appeals that the record in this case is not

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“sufficient to demonstrate that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional” and requires the development of additional facts in order to assess whether Mr. Jones’s was provided ineffective assistance, id. at 9-10, ignores the holdings in Evitts and Ward, which specifically address the adequacy of assistance of appellate counsel, as well as the holdings in cases construing Strickland that require review of the merits of ineffective assistance claims where the facts necessary to resolution of those claims are contained in the record.17 APPLICABILITY OF STRICKLAND In Strickland the Supreme Court held that the Sixth Amendment right to counsel includes the right to effective assistance of counsel, in the context of trial proceedings, Strickland, supra, 466 U.S. at 688-90, and established standards for judging the effectiveness of counsel’s performance. Id. at 690-95. These standards require an accused to prove, by a preponderance of the evidence, that his counsel’s representation fell below the objective standard of professional norms, and that his deficient performance prejudiced his defense. Bone v. State, supra, 77 S.W.3d at 833. And, appellate review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance. Id. Thus, “[u]nder normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so

17 The court of appeals ignored all of these cases, despite being provided with them by Mr.

Jones in his brief and in his Motion for Rehearing.

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deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel’s conduct was reasonable and professional.” Id.

Several exceptions apply to the foregoing conclusion, all of which have some application in this case. First, “[i]n certain Sixth Amendment contexts, prejudice is presumed” - “[a]ctual or constructive denial of the assistance of counsel is legally presumed to result in prejudice.” Strickland, supra, 466 U.S. at 692. Because Mr. Jones’s counsel wholly failed to assure Mr. Jones’s right to a reporter’s record on appeal by not following a simple procedural rule, that failure constituted an actual or constructive denial of the assistance of counsel. Evitts; Ward. This is particularly appropriate in light of Strickland’s command that ineffective assistance claims be assessed in terms of “whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Strickland, supra, 466 U.S. at 696. The inaction upon which the ineffectiveness of Mr. Jones’s counsel is based deprived Mr. Jones of appellate review of the merits of his conviction. See Guillory v. State, 557 S.W.2d 118 (Tex.Crim.App.1977). As stated in Evitts and in Ward, it is difficult to imagine a harsher, more unjust consequence than not having the merits of a conviction reviewed on appeal because of the failure to an appellate counsel to take a simple procedural step. See Ex parte Perez, 479 S.W.2d 283 (Tex.Crim.App.1972) (awarding an accused a new trial because he was deprived of an appeal and no reporter’s record was available upon which an out-of-time appeal could have been based).

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Second, where the existing appellate record establishes ineffective assistance of counsel, there is no need for the development of other facts in a post-conviction proceeding and the issue should therefore be addressed on direct appeal. Andrews v. State, 159 S.W.3d 98, 103 (Tex.Crim.App.2005); Oldham v. State, 977 S.W.2d 354, 360 (Tex.Crim.App.1998); Prudhomme v. State, supra. In this case the record is clear: Mr. Jones’s’ appellate counsel failed to take the necessary steps to assure that Mr. Jones had the benefit of a reporter’s record in connection with his appeal. As stated in Evitts, Ward, and Perez, this is the type of failure in which prejudice is presumed because there has been an “actual or constructive denial of the assistance of counsel altogether.” Strickland, supra, 466 U.S. at 692.

The court of appeals indulgence in speculation that it is possible Jones’s counsel first became aware Jones was indigent after the time for filing the Rule 20.2 motion or that because Jones was represented by retained counsel he would not be able to meet the evidentiary showing required to establish indigency, Jones, supra, slip op. 9, ignores the obvious. The strategic choices of counsel are not evidence of ineffective assistance if those choices are based on professional judgment. Strickland, supra, 466 U.S. at 681. In this case there was no possible reasonable strategy that would support the failure of Mr. Jones’s counsel to take the necessary steps to assure that Mr. Jones would have the benefit of a reporter’s record for use in connection with his appeal. Thus, counsel’s reasons, if any, for failing to timely file a Rule 20.2 motion are unnecessary to resolve the claim of ineffective assistance of counsel. Andrews, supra.

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CONCLUSION

When evaluated under Evitts and Ward, the failure of Mr. Jones’s appellate counsel to timely file a Rule 20.2 motion and affidavit was ineffective assistance as a matter of law. “Counsel’s failure was particularly egregious in that it essentially waived respondent’s opportunity to make a case on the merits; it is difficult to distinguish respondent’s situation from that of someone who had no counsel at all.” Evitts, 469 U.S. at 835 n. 6, quoted in Ward, supra, 740 S.W.2d at 799. “[T]he failure of counsel in each case to comply with a simple procedural rule operated to deny appellant an opportunity at a meaningful time and in a meaningful manner to present his appeal.” Ward, supra, 740 S.W.2d at 800.

And, when evaluated under Strickland, the failure of Mr. Jones’s counsel on appeal to file the Rule 20.2 motion and affidavit constitutes ineffective assistance of counsel for the very same reasons as set forth in Evitts and Ward because there is no legitimate, reasonable basis upon which it can be said that the failure of Mr. Jones’s appellate counsel to timely file a Rule 20.2 motion and affidavit was a reasonable strategic choice, given that the failure deprived Mr. Jones of appellate review of his conviction. The failure to file a Rule 20.2 motion in this case is one of those situations in which there is an actual or constructive denial of counsel and prejudice is legally presumed. Strickland, supra, 466 U.S. at 692.

Discretionary review should be granted so that the effectiveness vel non of Mr.

Jones’s counsel on appeal in failing to timely file a Rule 20.2 motion and affidavit can be reviewed under the standards set forth in Evitts and Ward, or under the

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Strickland standard, all of which were ignored by the court of appeals in reaching its decision.

PRAYER FOR RELIEF

Mr. Jones prays that this Court grant discretionary review to review the decision of the court of appeals in this case because the court of appeals failed to apply the appropriate standard in resolving whether Mr. Jones’s counsel was ineffective for failing to timely file a Rule 20.2 motion and affidavit, thereby depriving Mr. Jones of appellate review of the merits of his conviction.

Respectfully submitted,

/s/ Melvyn Carson Bruder

MELVYN CARSON BRUDER

TSBN 03241000

6440 North Central Expressway 516 Turley Law Center

Dallas, Texas 75206

214.987.3500

214.987.3518 FAX

melvyn@melvynbruderlaw.com

Counsel for the Petitioner

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CERTIFICATE OF SERVICE

I certify that on 29 June 2015 a true and correct copy of the foregoing Petitioner’s Petition for Discretionary Review was served upon counsel for the State of Texas in this case and upon the State Prosecuting Attorney via electronic filing and via first class United States mail, postage prepaid, in Dallas, Texas.

/s/ Melvyn Carson Bruder

MELVYN CARSON BRUDER

CERTIFICATE OF COMPLIANCE

I certify that this petition contains 4016 words based on the word count of the Word Perfect X5 program used to prepare the petition.

/s/ Melvyn Carson Bruder

MELVYN CARSON BRUDER

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APPENDIX A

OPINION OF THE COURT OF APPEALS IN JONES V. STATE

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APPENDIX B

ORDER DENYING MOTION FOR REHEARING IN JONES V. STATE