ACCEPTED 14-14-00774-cr FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 4/20/2015 1:56:19 PM CHRISTOPHER PRINE CLERK
No. 14-14-00774-CR
In the Court of Appeals for the FILED IN Fourteenth District of Texas at Houston 14th COURT OF APPEALS HOUSTON, TEXAS 4/20/2015 1:56:19 PM CHRISTOPHER A. PRINE No. 1415457 Clerk
In the 248th District Court Of Harris County, Texas
JOSEPH LEE FIEDOR Appellant v.
THE STATE OF TEXAS Appellee
APPELLANT’S BRIEF ON DIRECT APPEAL
ADAM BANKS BROWN 300 MAIN SUITE 200 HOUSTON, TEXAS 77002 TEL: 713-223-0051 FAX : 713-223-0877 SBOT: 24003775
Counsel for Appellant STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, appellant requests oral
argument only if requested by the State.
PARTY IDENTIFICATION
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all interested
parties is provided below:
Counsel for Appellant:
Adam B. Brown Counsel on appeal
Richard F. Burgess Counsel at trial
Appellant (Criminal Defendant):
Joseph Lee Fiedor—Appellant
Counsel for the State:
Devon Anderson Harris County District Attorney (interim)
Alan Curry Assistant District Attorney on appeal
Allison Bambridge Assistant District Attorney at trial
Trial Judge:
Hon. Katherine Cabaniss Presiding Judge
2 TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT......................................................................2
PARTY IDENTIFICATION ...........................................................................................................2
INDEX OF AUTHORITIES............................................................................................................5
STATEMENT OF THE CASE........................................................................................................7
STATEMENT OF FACTS ..............................................................................................................7
SUMMARY OF THE ARGUMENT ..............................................................................................8
POINT OF ERROR .........................................................................................................................9
POINT OF ERROR ONE — FAILURE TO OBJECT TO DESCRIPTION OF PRIOR FELONY OFFENSE IN THE PRE-SENTENCE INVESTIGATION RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review and Applicable Law .........................................................................9
B. Argument ........................................................................................................................10
POINT OF ERROR TWO — FAILURE TO OBJECT TO UNSWORN TESTIMONY IN THE PRE- SENTENCE INVESTIGATION RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review and Applicable Law .......................................................................11
B. Argument ........................................................................................................................12
POINT OF ERROR THREE — FAILURE TO PROVIDE FURTHER MITIGATION TESTIMONY RESULED IN INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review and Applicable Law .......................................................................13
3 B. Argument ........................................................................................................................13
CONCLUSION ................................................................................................................……..15
CERTIFICATE OF SERVICE ……………………………….....................................................15
4 INDEX OF AUTHORITIES
CASES
Strickland v. Washington , 466 U.S. 668 ............................................................................................................................... 7
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999), .................................................................................. 7
Kemp v. State, 892 S.W.2d 112 (Tex.App.Houston [1st Dist.] 1994, pet. ref‘d) .............................................. 8
Ex Parte Duffy, 607 S.W.2d 507 .......................................................................................................................... 7
McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996), .................................................................................. 8
Glover v. United States, 531 U.S. 198 (2001) .................................................................................................................. 8
Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000), ...................................................................................... 8
Gifford v. State, 980 S.W.2d 791 (Tex.App.Houston [1st Dist.] 1998, pet. ref‘d) .............................................. 8
Delrio v. State , 840 S.W. 2d 443 ....................................................................................................................... 12
Jackson v. State , 877 S.W. 2d 768 ....................................................................................................................... 12
5 RULES
TEX. R. APP. P. 39.1 ........................................................................................................................ 1
TEX. R. APP. P. 9.4(g)...................................................................................................................... 1
TEX. R.EVID. 403 ........................................................................................................................... 8
6 TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The State charged Appellant with Intoxication Assault. Appellant pled guilty to the charge
and a Pre-Sentence Investigation was ordered. The Court, after a hearing, found Appellant guilty
as charged, and assessed his punishment at the maximum confinement of 20 years in the Texas
Department of Criminal Justice, Institutional Division. Appellant filed a timely and written
notice of appeal.
STATEMENT OF FACTS
The following synopsis describes the testimony given by the relevant witnesses. It should
not be construed as Appellant’s acceptance of any fact asserted. Some witness testimony was not
mentioned nor referred to for the sake of judicial economy. However, Appellant requests the
Court to consider and review the entire record of the hearing on the merits when rendering their
decision.
Appellant was arrested and charged with the offense of Intoxication Assault on January 24,
2014. He plead guilty to the charge on July 1, 2014 and requested a punishment hearing along
with a Pre-sentence Investigation Report (hereinafter PSI). On August 18, 2014, a punishment
hearing was presented to the 248th District Court. At the hearing, the PSI was produced by the
probation department. The results of the PSI report and testimony from the Appellant’s foster
mother were the only evidence presented by Appellant at that hearing. Upon the State’s motion
to enter the PSI, Appellant’s trial attorney failed to make any objections to its admission.
Included in the PSI report were highly prejudicial and improper pieces of key evidence,
including but not limited to lengthy descriptions of the facts of a juvenile sexual assault of a child
7 case which was used as an enhancement and letters from Victims family and coworkers which
requested the maximum sentence. Very little mitigation testimony was given
Appellant would argue trial counsel’s failure to object to this improper evidence proves
said trial counsel was ineffective in his representation of Appellant under the Strictland review.
Additionally, at the hearing, trial counsel failed to present proper evidence of Appellant’s
mental health and childhood history for mitigation purposes. This failure to provide such
evidence proves said trial counsel was ineffective in his representation of Appellant under the
Strickland review.
SUMMARY OF THE ARGUMENT
In Appellant’s first point of error, Appellant argues that he received ineffective assistance
of counsel at his hearing on punishment. Specifically, Appellant argues that his trial counsel was
ineffective in that he failed to timely object to descriptions of a prior felony offense in the Pre-
sentence Investigation Report.
In Appellant’s second point of error, Appellant argues that he received ineffective
assistance of counsel at his hearing on punishment. Specifically, Appellant argues that his trial
counsel was ineffective in that he failed to object to unsworn testimony presented in the PSI report.
In Appellant’s third point of error, Appellant argues that he received ineffective assistance
of counsel at his hearing on punishment. Specifically, Appellant argues that his trial counsel was
ineffective in that he presented only limited mitigation evidence during the hearing.
8 POINT OF ERROR
POINT OF ERROR ONE — FAILURE TO OBJECT TO DESCRIPTION OF PRIOR FELONY OFFENSE IN THE
PRE-SENTENCE INVESTIGATION RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review and Applicable Law
Ineffective assistance of counsel is evaluated using a two step process. Strickland v.
Washington 466 U.S. 668. The first is the trial counsel’s representation fell below the objective
standard of reasonableness (Id. 688). To prove this step, the Appellant must identify the specific
acts or omissions of counsel alleged to be ineffective and prove they were ineffective. Hernandez
v. State, 988 S.W.2d. 770 (Tex.Crim.App. 1999). The second is the Appellant must show a
prejudice as a result of counsel’s performance See Strickland, 466 U.S. at 694. A record that
focuses on the conduct of trial counsel is necessary for a proper evaluation Kemp v. State, 892
S.W.2d 112 (Tex.App.Houston [1st Dist.] 1994, pet. ref’d). To show prejudice, Appellant must
show that but for the ineffective actions of the trial attorney, the result of the proceeding would
have been different. See Strickland at 694, 104 S.Ct. at 2068.
The Strickland test now applies to the punishment phase of a non-capital trial. See
Hernandez v. State, 988 S.W.2d 53 (Tex. Crim. App.1999), overruling Ex parte Duffy, 607
S.W.2d 507, 516 (Tex.Crim.App.1980) (establishing test for ineffective assistance of
counsel in punishment phase of non-capital trial). We now apply the same two-prong
Strickland standard of review for ineffective assistance of counsel claims in both the
guilt/innocence phase of trial and the punishment phase of trial. Hernandez v. State, 726
S.W.2d 53, 55 (Tex. Crim. App. 1986). To show ineffective assistance of counsel at
punishment, the appellant must first demonstrate counsel's representation fell below an
objective standard of reasonableness under prevailing professional norms. See Strickland v.
9 Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McFarland v. State, 928
S.W.2d 482, 500 (Tex.Crim.App.1996). Counsel's competence is presumed, and the appellant
must rebut this presumption by identifying the acts or omissions of counsel that are alleged as
ineffective and affirmatively prove that they fell below the professional norm of
reasonableness. See McFarland, 928 S.W.2d at 500. An ineffectiveness claim cannot be
demonstrated isolating any portion of counsel's representation, but is judged on the totality of
the representation. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. The Supreme Court
has held that counsel's deficient performance that resulted in a higher sentence under determinate
sentencing guidelines constitutes prejudice. Glover v. United States, 531 U.S. 198 (2001).
The Rule 403 balancing test includes the following factors: 1) how compellingly the
extraneous offense evidence serves to make a fact or consequence more or less probable a factor
which is related to the strength of the evidence presented by the proponent to show the Defendant
in fact committed the extraneous offense; 2) the potential the other offense evidence has to
impress the jury in some irrational but nevertheless indelible way; 3) the time the proponent will
need to develop the evidence, during which the jury will be distracted from consideration of the
indicted offense; and 4) the force of the proponent’s need for this evidence to prove a fact of
consequence Wyatt v. State, 23 SW3rd 18, 26 (Tex.Crim.App. 2000). Texas Rules of Evidence
403 provides that relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury
TEX.R.EVID. 403.
B. Argument
At the punishment hearing, a major portion of the evidence presented both for and against
10 Appellant was the PSI report. Therefore, it must be assumed the Court took the report into great
consideration prior to rendering the maximum sentence against the Appellant despite the lack of
any real prior offenses other than those committed when the Appellant was very young.
As to this prior offense, the Appellant’s trial attorney allowed into evidence very specific
and highly prejudicial details. While descriptions of prior offenses are admissible, they are not
allowed to cross the line of prejudicial under rule 403 of the Rules of Evidence. In this case, the
PSI contained descriptions such as the Appellant, “leaping on another student in a sexual manner”
and a medical exam which showed, “dried blood around the anal area.” This statement along with
other descriptors in the PSI are highly prejudicial to Appellant and would have resulted in a
different outcome in the sentencing. Trial counsel’s failure to object to this evidence cannot be
considered trial strategy and falls below the standard of reasonableness under the Strickland
review.
POINT OF ERROR TWO — FAILURE TO OBJECT TO UNSWORN TESTIMONY IN THE PRE-SENTENCE
INVESTIGATION RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL
In Gifford v. State, 980 S.W.2d 791 (Tex. App. -Houston [1st Dist.] 1998,pet. ref d), the
First Court of Appeals reversed and remanded for a new punishment hearing, where counsel for
the defense 1) failed to object to unsworn victim impact statements made before sentencing and
2) did not ask to conduct cross-examination. However, as previously mentioned, the Defense
failed to object to their admission under Article 42.03 Sec. 1 (b) of the Texas Code of Criminal
Procedure. The Texas Code ofCriminal Procedure authorizes a court to receive victim impact
statements. See Tex.Code Crim.Proc.Ann. Art. 42.03 Sec. 1 (b) (Vernon Supp.2013). But, as
shown below, the legislature has severely limited the use and impact of the statement by
11 requiring that it be made after punishment has been assessed:
(b) The court shall permit a victim, close relative of a deceased victim, or guardian of a
victim, as defined by Article 56.01 of this code, to appear inperson to present to the
court and to the defendant a statement of the person's views about the offense, the
defendant, and the effect of the offense on the victim. The victim, relative, or guardian
may not direct questions to the defendant while making the statement. The court reporter
may not transcribe the statement. The statement must be made:
(1) after punishment has been assessed and the court has determined whether or
not to grant community supervision in the case;
(2) after the court has announced the terms and
conditions of the sentence;
(3) after sentence is pronounced.
Trial counsel failed to object to the portion of the PSI which allowed non-sworn testimony
before the court in the form of letters written by family and friends of the victim requesting the
maximum sentence be imposed. These letters number twenty seven. Two of the letters have
additional signatures of thirty eight different people. All of the letters reflect their views about
the offense, the Defendant, and the effect of the offense has had. This unsworn evidence was
admitted prior to punishment being assessed. The witnesses were not present to testify, and
therefore were unavailable for cross-examination.
The complained of unsworn victim impact statements contained within the letters were
entered into evidence 1)before punishment was assessed, 2) before the court announced the terms
and conditions of the sentence and 3) before sentence was pronounced. Clearly, these unsworn
12 victim impact statements, did not qualify as admissible statements under article 42.03. See id..
Consequently, Defense counsel should have objected to the State's introduction of the letters
containing unsworn victim impact statements into evidence. Appellant argues that
ineffective assistance of counsel in his case is the equivalent of denial of counsel and that he
should be granted another Pre-Sentence Investigation hearing.
POINT OF ERROR THREE — FAILURE TO PROVIDE FURTHER MITIGATION TESTIMONY
RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL
The benchmark for judging a claim of ineffective assistance is whether counsel's conduct
so undermined the proper functioning of the adversarial process that a trial could not be relied on
as having produced a just result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). To establish ineffective assistance of counsel at the guilt\innocence stage
of trial, the appellant must show that ( I ) his counsel's performancewas deficient, i.e., counsel's
errors were so serious that he was not functioning as the"counsel" guaranteed by the Sixth
Amendment, and (2) the deficient performance prejudiced the defense i.e., deprived him of a
fair trial. Id. at 687; see Hernandez v. State,726 S.W.2d 53, 55 (Tex. Crim. App. 1986).
These errors demonstrate (1) that appellant's counsel's performance was undeniably
deficient, i.e. counsel's errors were so serious that he was not functioning as the "counsel"
guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense
i.e., deprived him of a fair hearing. Id. at 687; see Hernandez v. State, 726 S.W.2d 53, 55 (Tex.
Crim. App. 1986).
At the PSI hearing, the only live testimony presented by the Defense was from the
13 Appellant’s foster mother Anna L. Jones. Ms. Jones was able to merely provide a brief insight
into the character of the Appellant. There was no testimony concerning Appellant’s mental health
issues or brutal upbringing. As noted in the PSI report, Appellant had been treated in the past for
Depression and for being Bipolar. Appellant was permanently sent to foster care at a very young
age. He reported he was that beaten by both his step father and foster mother since the age of 5.
An expert witness able to discuss these mental diseases and his traumatic childhood and their
possible role in the actions of Appellant would have been critical to providing to the Court a better
idea of what the proper sentence would be. Additionally, the record is also clear that should
Appellant’s attorney have put on any mitigation evidence, the outcome would have been different
since Appellant was sentenced to the maximum under the agreement. Therefore, the record shows
that the mitigation evidence would have at least given the Court reason to give less than the
maximum.
As it applies to all points of error presented, Appellant is well aware of the case law
regarding an ineffective argument on direct appeal with a “cold record” See Delrio v. State 840
S.W. 2nd 443, 446. However, Appellant would argue a transcript of this nature is by no means
required if the “cold record” shows enough evidence for the Appellate Court not to speculate to
determine if the trial strategy was reasonable or not. See Jackson v. State 877 S.W.2d 768, 771.
Despite the lack of a transcript of a Motion for New Trial hearing, there can be no explanation for
the trial attorney not to put on more mitigating evidence or make proper objections.
14
CONCLUSION
For the reasons described above, Appellant’s three points of error should be sustained and
his conviction reversed for a new punishment hearing.
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing instrument has been mailed or hand-delivered to the
State’s attorney at the following address on April 20, 2015:
Mr. Alan Curry Harris County District Attorney’s Office 1201 Franklin St., Ste. 600 Houston, Texas 77002
/s/ Adam Banks Brown ADAM BANKS BROWN 300 MAIN SUITE 200 HOUSTON, TEXAS 77002 TEL: 713-223-0051 FAX : 713-223-0877 SBOT: 24003775
Counsel for Appellant
Date: April 20, 2015