Karl Lee Wiggins v. State

Opinion

ACCEPTED 03-15-00385-CR 8150331 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/9/2015 9:11:37 AM JEFFREY D. KYLE CLERK NO. 03-15-00385-CR

IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS THIRD DISTRICT OF TEXAS AT AUSTIN 12/9/2015 9:11:37 AM JEFFREY D. KYLE Clerk ***************************************************

CAUSE NO. 72,941

IN THE 27TH JUDICIAL DISTRICT OF

BELL COUNTY, TEXAS

***************************************************

KARL LEE WIGGINS APPELLANT

VS

THE STATE OF TEXAS APPELLEE

APPELLANT’S BRIEF ___________________________________________________

APPEAL OF JUDGMENT IN CAUSE NO. 72,941 FROM THE 27TH JUDICIAL DISTRICT OF BELL COUNTY, TEXAS ___________________________________________________ NO ORAL ARGUMENT REQUESTED JAMES H. KREIMEYER ATTORNEY FOR APPELLANT P.O. BOX 727 BELTON, TEXAS 76513 (254) 939-9393 (254) 939-2870 FAX T.S.B. #11722000 jkreime@vvm.com IDENTITY OF PARTIES AND COUNSEL

Judge at Trial: Hon. John Gauntt 27th Judicial District P.O. Box 324 Belton, Texas 76513

Prosecutors: Nelson Barnes & Terry Clark Asst. District Attorneys P.O. 540 Belton, Texas 76513

Defense Attorneys Joseph Wiener, Jr. at Hearing Attorney at Law P.O. Box 298 Belton, TX 76513

Bob Barina Attorney at Law 455 E. C.T.Expr. Ste.104 Harker Heights, TX 76548

Attorney for Appellant: James H. Kreimeyer Attorney at Law P.O. Box 727 Belton, TX 76513

Attorney for Appellee: Bob Odom Asst. District Attorney P.O. Box 540 Belton, Texas 76513

Appellant: Karl Lee Wiggins TDCJ#02014439 Bill Clements Unit 9601 Spur 591 Amarillo, TX 79107-9606

ii TABLE OF CONTENTS PAGE NO.

IDENTITY OF PARTIES AND COUNSEL. . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . .iii

INDEX OF AUTHORITIES. . . . . . . . . . . . .iv

STATEMENT OF THE CASE. . . . . . . . . . . .1-2

ISSUES PRESENTED. . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . 3-5

SUMMARY OF THE ARGUMENT. . . . . . . . . . . .5

ARGUMENT . . . . . . . . . . . . . . . . . 6-12

PRAYER. . . . . . . . . . . . . . . . . . . .13

CERTIFICATE OF COMPLIANCE. . . . . . . . . . 14

CERTIFICATE OF SERVICE. . . . . . . . . . . .15

iii INDEX OF AUTHORITIES

CASES: PAGE NO.

Trevino v. Thaler, 133 S. Ct. 1911, 1913, 185 L. Ed. 2d 1044 (2013). . . . . . . . . 5-6

Milburn v. State, 15 S.W.3d 267, 270 (Tex. App. Houston [14th Dist] 2000, pet. ref’d.). . . . . . . . . . . . . . . .7-8

Torres v. State, No. 01-95-00862-CR, 2000 WL 1877641(Tex. App. Houston [1st Dist.] pet. ref’d)(mem. Op., not designated for publication). . . . . . . . . . . . . . . 9-11

Strickland v. Washington, 446 U.S. 668, 694, (1984). . . . . . . . . . . . . . . . . . . 12

iv NO.03-15-00385-CR

IN THE

COURT OF APPEALS

THIRD DISTRICT OF TEXAS

AT AUSTIN

*****************************************************

VS.

THE STATE OF TEXAS APPELLEE ******************************************************

APPELLANT’S BRIEF

STATEMENT OF THE CASE

Appellant, KARL LEE WIGGNINS, on March 30, 2015

entered a plea of guilty to the offense of murder.

(R.R. IV at 9-10)

On May 28, 2015 the trial court found appellant

guilty, and assessed appellant’s punishment at life

in the Texas Department of Criminal Justice—

Institutional Division. (R.R. AV5 at 12)

1 The trial court denied a motion for new trial on

the record at the time of the hearing. (R.R. VI at

53) A supplemental notice of appeal was filed on

behalf of appellant on August 5, 2015.

STATEMENT REGARDING ORAL ARGUMENT

Appellant does not request oral argument.

ISSUE PRESENTED

Appellant’s trial attorneys rendered ineffective

assistance of counsel at punishment by not presenting

the testimony of the Texas Department of Public

Safety Forensic Scientist concerning the malfunction

of the quarter-cock safety noted by the scientist

during test firing of the alleged murder weapon.

(R.R. VI at DX 1)(R.R. VI at 18)

2 STATEMENT OF FACTS

During a hearing on appellant’s motion for new

trial, appellant’s attorney Joseph C. Wiener was

called by appellant. (R.R. VI at 14) A ballistics

report from the Texas Department of Public Safety

Crime Laboratory, Defendant’s Exhibit One, was shown

to Mr. Wiener concerning a malfunction of the

quarter-cock safety noted during test firing. (R.R.

VI at 17)(R.R. VII at Def. Ex. 1) Mr. Wiener

acknowledged the safety that was not working properly

could have caused the gun to go off accidentally.

(R.R. VI at 18)

Co-counsel, Bobby Barina, appointed by the trial

court on March 9, 2015 (Cl. R. at 24) testified at

the motion for new trial. (R.R. VI at 31) When

questioned about the Texas Department of Public

Safety (DPS) Crime Laboratory report on the

ballistics of the weapon, Barina recalled the State

had a gentleman from a local gun shop who testified

about testing the weapon for trigger pull. The

3 witness found the trigger pull to be heavy. Mr.

Barina agreed he had seen the DPS ballistic report.

(Def. Ex. 1) Mr. Barina recalled the gun shop owner

called by the State did not have a problem with the

safety on the weapon. When asked if he explored

getting the DPS expert, Mr. Barina allowed as how

that was one of the things Mr. Wiener was to handle.

(R.R. VI at 36) Mr. Barina agreed he knew what was

in the DPS report and discussed it with Appellant

and Mr. Wiener. At that discussion it was apparently

decided to look into the report only if the case went

to trial. (R.R. VI at 38)

During the punishment hearing on May 28, 2015

the State called David Cheadle, employed at Guns

Galore (R.R. V at 10) as manager. There is not a

gunsmith employed at the store. Mr. Cheadle does

simple repairs. (R.R. V at 11) Mr. Cheadle was

brought a weapon, by the district attorney’s

investigator. The weapon was identified as State’s

Exhibit 2, a .25 Tangoglio Armalite handgun. (R.R. V

4 at 12)(R.R. VII at State’s Ex. 2) Being asked to test

the trigger pull of the weapon, Cheadle related the

trigger pull on State’s Ex. 2 was not a hair trigger

[3½ pounds]. (R.R. V at 13) The tested trigger pull

on State’s Ex. 2 was 7¼ pounds. (R.R. V at 15) When

examined by appellant, Cheadle related he had not

been made aware of the safety problem found by the

DPS lab and was only testifying about the trigger

pull. (R.R. V at 16)

SUMMARY OF THE ARGUMENT

By not presenting to the trial court the

evidence of the Texas Department of Public

Safety scientist’s conclusions concerning the

firearm alleged to have been used, trial counsel

for appellant rendered ineffective assistance of

counsel at the punishment phase of appellant’s

plea of guilty.

5 ARGUMENT

In argument on the motion for new trial, it was

conceded by appellant that counsel was ineffective,

had not be shown. This illustrates the problem

arising from requiring a motion for new trial before

the appellate record is available; as pointed out by

the Supreme Court of the United States in Trevino v.

Thaler. In Trevino, the Supreme Court noted: Texas

procedures make it nearly impossible for an

ineffective-assistance-of-trial-counsel claim to be

presented on direct review. The nature of an

ineffective-assistance claim means that the trial

record is likely to be insufficient to support the

claim. And a motion for a new trial to develop the

record is usually inadequate because of Texas rules

regarding time limits on the filing, and the

disposal, of such motions and the availability of

trial transcripts. Trevino v. Thaler, 133 C. Ct.

1911, 1913, 185 L. Ed. 2d 1044 (2013)

6 Had appellant known of the trigger pull issue at

the motion for new trial hearing, a better record

could have been made concerning the firearm alleged

to have been the instrumentality causing the death

of the complainant. The trial attorneys could have

been questioned more thoroughly about the fact the

trial attorneys for appellant did not obtain and

present the evidence of the DPS Crime Lab expert to

explain the safety problem and determine the accuracy

of the trigger pull evidence from the gun store

manager.

Appellant cannot question the effectiveness of

entering a plea of guilty or the finding of guilty

by the trial court. The issue is: Were his trial

attorneys ineffective by not securing the testimony

and opinions of the DPS Crime Lab firearms expert to

counteract the testimony of the gun store manager?

When asked about this testimony, Mr. Barina

deferred to his co-counsel. (R.R. VI at 37) Mr.

Barina’s only explanation concerning the DPS Crime

7 Lab report was, basically, if there was not a plea,

then a request for additional time would be made.

This conversation was on March 30, 2015. The

punishment hearing in May of 2015 was where the issue

of the trigger pull was stressed by the State as

being a conscious effort by appellant to kill the

complainant. (R.R. AV5 at 6)

In Milburn v. State, 15 S.W.3d 267, (Tex. App.

Houston [14th Dist] 2000, pet. ref’d.) Milburn’s

counsel failed to contact a number of potential

favorable witnesses for the punishment phase of

Milburn’s trial. The Houston Court of Appeals noted

the sentencing process consists of weighing

mitigating and aggravating factors, and making

adjustments in the severity of the sentence

consistent with this calculus. In that case,

Milburn's trial counsel presented no evidence of

mitigating factors for the jury to balance against

the aggravating factors presented by the State.

Indeed, Milburn's counsel performed no investigation

8 into any possible mitigating factors and failed to

contact even a single family member or friend,

despite the availability of such mitigation

evidence. Milburn, 15 S.W.3d at 270. (Tex. App. 2000)

Although appellant’s trial counsel put on some

testimony at punishment, nothing was done to rebut

the firearm evidence given by the gun store manager.

The firearm evidence as to trigger pull was relied

upon by the State in the final remarks to the trial

court to show evidence of seven (7) pounds of trigger

pull to rule out accidental or unintentional firing

of the weapon. This was despite the evidence of the

victim’s common law wife and sister of appellant,

Elizabeth Gallagher, that appellant cried: “I didn’t

mean to do it. I didn’t mean to do it.” (R.R. V at

35) The testimony of the DPS expert would have

injected the issue of the problem with the quarter-

cock safety giving consideration of a faulty safety

as supporting appellant’s not meaning to do it. This

evidence was not produced by trial counsel taking

9 the position that evidence would only have been

presented in the event of a trial. (R.R. VI at 38)

The Court’s attention is directed to Torres v.

State, No. 01-95-00862-CR, 2000 WL 1877641 (Tex. App.

Houston [1st Dist.] pet. ref’d) (mem. op., not

designated for publication). There, Torres and his

companion Burnett robbed and shot the victim. The

shooting was with a 9mm pistol. Torres maintained he

was not the shooter. The pistol attributed to Torres

was not the weapon that shot the victim. After an

open plea to aggravated robbery, Torres alleged his

attorney was ineffective at the punishment phase of

his plea because he did not present the ballistic

evidence showing Torres’ weapon did not fire the

shots at the victim. The defense attorney for Torres

testified he saw the ballistics report and even

discussed it with the prosecutor, but did not think

it was relevant because the prosecutor suggested the

appellant and Burnett could have switched guns after

10 the shooting, when they drove off in the car

together. Torres, 2000 WL 1877641, at *4.

In reversing and remanding for a new punishment

hearing, the Court of Appeals pointed out: Failure

to present mitigating evidence at punishment is

ineffective assistance unless counsel made a

reasonable decision to forego presentation of

mitigating evidence after evaluating available

testimony. Even though defense counsel investigated

the ballistics evidence, it was unreasonable for him

to decide not to present the report at the punishment

hearing. This evidence would have helped the Torres'

only defense-that he was not the shooter. Torres,

2000 WL 1877641, at *4

The same reasoning should be applied to

appellant. The fact is, the weapon had a safety

problem and the DPS scientist is certainly more

qualified to express opinions about firearms than

the gun store manager used by the State. Had trial

counsel subpoenaed the state firearms expert making

11 the trial court aware of the safety problem with the

firearm, the trial court would probably not have seen

fit to impose the maximum sentence. When this is

coupled with the emphasis put on the trigger pull by

the State to show a conscience effort by appellant

to kill the complainant, even though appellant

immediately after the shot stated he did not mean to

do it, a new punishment hearing should be granted

appellant.

The defendant must show that there is a

reasonable probability that, but for counsel's

unprofessional errors, the result of the

proceeding would have been different. A

reasonable probability is a probability

sufficient to undermine confidence in the

outcome. Strickland v. Washington, 466 U.S. 668,

694, (1984) Appellant has shown the probability

that less than the maximum sentence would have

been imposed, if the trial judge had all the

mitigating facts before him.

12 PRAYER

Wherefore, premises considered, appellant prays

the Court of Appeals to reverse and remand for a new

punishment hearing and for any other relief to which

appellant may be entitled.

Respectfully submitted,

/s/ James H. Kreimeyer James H. Kreimeyer Counsel for Appellant P.O. Box 727 Belton, TX 76513 254-939-9393 Fax:939-2870 TSB#11722000 jkreime@vvm.com

13 CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with

the length limitations of Texas Rule of Appellate

Procedure 9.4(i)(3) because this brief contains

1,613 words, excluding the parts of the brief

exempted by Texas Rule of Appellate Procedure

9.4(i)(1); a number which is less than the 15,000

words allowed under Rule 9.4(i)(2)(B).

I also certify that this brief complies with the

typeface requirements of Texas Rule of Appellate

Procedure 9.4(e) because this brief has been written

with a conventional typeface using a 14-point font

(with footnotes no smaller than 12-points) using

Microsoft Office Word 2010 (version 14), in Courier

New font.

/s/ James H. Kreimeyer JAMES H. KREIMEYER

14 CERTIFICATE OF SERVICE TO OPPOSING COUNSEL

This is to certify a true copy of the foregoing

Appellant’s Brief was furnished to Bob Odom Assistant

District Attorney for Bell County, P.O. Box 540,

Belton, Texas 76513 on the 9th day of December, 2015.

CERTIFICATE OF SERVICE TO APPELLANT

This is to certify a true copy of the brief,

mailed to Appellant, Karl Lee Wiggins, Bill Clements

Unit, 9601 Spur 591, Amarillo, TX 79107 on the 9th

day of December, 2015.