ACCEPTED 12-16-00096-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 9/19/2016 3:19:29 PM Pam Estes CLERK
12-16-00096-CR
FILED IN 12th COURT OF APPEALS IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS TYLER, TEXAS 9/19/2016 3:19:29 PM PAM ESTES Clerk
LONNIE EDWARD SMITH, JR.
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 241st District Court of Smith County, Texas Trial Cause No. 241-0048-16
ORAL ARGUMENT NOT REQUESTED
Austin Reeve Jackson Texas Bar No. 24046139 112 East Line, Suite 310 Tyler, TX 75702 Telephone: (903) 595-6070 Facsimile: (866) 387-0152 IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant
Appellate Counsel:
Austin Reeve Jackson 112 East Line, Suite 310 Tyler, TX 75702
Trial Counsel:
Clifton Roberson 100 E. Ferguson, Suite 1104 Tyler, TX 75702
Attorney for the State
Mr. Michael West Smith County ADA 100 N. Broadway Tyler, TX 75702
ii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ................................................................. ii TABLE OF CONTENTS ............................................................................................... iii INDEX OF AUTHORITIES.......................................................................................... iv STATEMENT OF THE CASE ....................................................................................... 2 ISSUES PRESENTED ................................................................................................... 2 STATEMENT OF FACTS ............................................................................................. 2 SUMMARY OF THE ARGUMENT ............................................................................. 3 ARGUMENT .................................................................................................................. 4
I. MR. SMITH RECEIVED INEFFECTIVE ASSISTANCE DURING PUNISHMENT .............................................................................. 4
The State's Argument ........................................................................................ 5
The Jury's Note ................................................................................................. 7
Harm Analysis ................................................................................................ 10
CONCLUSION AND PRAYER .................................................................................. 11 CERTIFICATE OF SERVICE ..................................................................................... 11 CERTIFICATE OF COMPLIANCE ............................................................................ 12
iii INDEX OF AUTHORITIES
UNITED STATES SUPREME COURT:
Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed. 2d 344 (1984) ................................. 4
FIFTH CIRCUIT COURT OF APPEALS:
Lyons v. McCotter, 770 F.2d 529 (5th Cir.) .................................................................................. 5
TEXAS COURT OF CRIMINAL APPEALS:
Bone v. State, 77 S.W.3d 828 (Tex.Crim.App. 2002)........................................................... 4, 6
Garcia v. State, 57 S.W.3d 436 (Tex.Crim.App. 2001)........................................................... 5
Hawkins v. State, 135 S.W.3d 72 (Tex.Crim.App. 2004)........................................................... 5, 8, 9
Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999)........................................................... 4
Hutch v. State, 922 S.W.2d 166 (Tex.Crim.App. 1996)......................................................... 9
Igo v. State, 210 S.W.3d 645 (Tex.Crim.App. 2007)......................................................... 8
Luquis v. State, 72 S.W.3d 355 (Tex.Crim.App. 2002)........................................................... 9
Mata v. State, 226 S.W.3d 425 (Tex.Crim.App. 2007)) ....................................................... 8-9
iv TEXAS COURT OF CRIMINAL APPEALS (CON’T):
Miniel v. State, 831 S.W.2d 310 (Tex.Crim.App. 1992)......................................................... 4
Moore v. State, 9694 S.W.2d 528 (Tex.Crim.App. 1985)....................................................... 4
Rose v. State, 752 S.W.2d 529 (Tex.Crim.App. 1988)......................................................... 8
Schutz v. State, 63 S.W.3d 442 (Tex.Crim.App. 2001)........................................................... 11
Vasquez v. State, 830 S.W.2d 948 (Tex.Crim.App. 1992)......................................................... 5
TEXAS COURTS OF APPEAL:
Byrd v. State, 192 S.W.3d 69 (Tex.App.—Houston [14th Dist.] 2006) ............................... 9-10
Chavez v. State, 6 S.W.3d 66 (Tex.App.—San Antonio 1999)................................................ 5
Clay v. State, 741 S.W.2d 209 (Tex.App.—Dallas 1987).................................................... 6
Lee v. State, No. 12-09-00221-CR, 2010 WL 1899675 (Tex.App.—Tyler 2010) ................................................. 10
Mata v. State, 141 S.W.3d 858 (Tex.App.—Corpus Christi 2004) ...................................... 8
Perez v. State, 994 S.W.2d 233 (Tex.App.—Waco 1999) .................................................... 6
v TEXAS COURTS OF APPEAL (CON’T):
Roberts v. State, 849 S.W.2d 407 (Tex.App.—Fort Worth 1993) ............................................ 8
Sandoval v. State, No. 12-12-00366-CR 2013 WL 3967242 (Tex.App.—Tyler 2013) ................................................. 10
Taylor v. State, 911 S.W.2d 906 (Tex.App.—Fort Wroth 1995) ............................................ 6
STATUTES:
TEX. CODE CRIM. PROC. art. 37.07 .................................................................... 7, 8, 9
vi 12-16-00096-CR
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
On Appeal from the 241st District Court of Smith County, Texas Trial Cause No. 241-0048-16
TO THE HONORABLE JUSTICES OF THE COURT:
COMES NOW, Austin Reeve Jackson, attorney for Lonnie Smith, and files
this brief pursuant to the TEXAS RULES OF APPELLATE PROCEDURE, and would
show the Court as follows: STATEMENT OF THE CASE
Lonnie Smith seeks to appeal his conviction and sentence for the offense of
delivery of a controlled substance. (I CR 46). Mr. Smith was indicted for this of-
fense in January of this year. (I CR 1). A plea of “not guilty” was entered and the
case proceeded to trial by jury in the 241st District Court of Smith County. (I CR
46). Ultimately, the jury convicted Mr. Smith of the offense and imposed punish-
ment at confinement for life. (Id.). Sentence was pronounced on 15 March and
notice of appeal then timely filed. (I CR 46, 55).
ISSUES PRESENTED
I. MR. SMITH RECEIVED INEFFECTIVE ASSISTANCE DUR- ING PUNISHMENT.
STATEMENT OF FACTS
At some point in the past officers with the Tyler Police Department Learned
that Appellant, Mr. Lonnie Smith, may be involved in illegally distributing con-
trolled substances in the Tyler area. (IV RR 29). As part of their investigation into
that issue, officers conducted an attempted buy of narcotics from Mr. Smith using a
confidential informant. (IV RR 30-31). Specifically, the informant arranged to
purchase $60 worth of oxycodone from Mr. Smith. (IV RR 32). That transaction,
and later a second, was conducted. (IV RR 42-43).
2 As a result, Mr. Smith was indicted for the felony offense of delivery of a
controlled substance. (I CR 1). Based on two prior felony convictions, his pun-
ishment range was enhanced to that of a habitual offender. (I CR 32). Mr. Smith
elected to proceed to trial by jury and was convicted in the 241st District Court of
Smith County and sentenced to serve a term of confinement for life. (I CR 46).
Sentence was pronounced on 15 March and notice of appeal then timely filed. (I
CR 46, 55).
SUMMARY OF ARGUMENT
When Mr. Smith’s trial counsel failed to raise a timely objection to argument
by the State that encouraged the jury to improperly apply of parole law to Mr.
Smith in determining their sentence, and then compounded that error by failing to
request that a proper parole instruction be given in response to a question sent out
by the jury during deliberation, ineffective assistance was rendered. Because, but
for that ineffective assistance Mr. Smith may have received a lesser sentence, the
Court should reverse the judgment and remand the case for a new trial on punish-
ment.
3 ARGUMENT
I. MR. SMITH RECEIVED INEFFECTIVE ASSISTANCE DURING PUNISHMENT.
Effective assistance of counsel is to be evaluated under the standard enunci-
ated in Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344
(1984); see also, Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999). To
prevail in a claim of ineffective assistance of counsel, a defendant must show (1)
that his trial counsel’s performance fell below an objective standard of reasonable-
ness, and (2) that a reasonable probability exists that, but for trial counsel’s alleged
errors, the result would have been different. Strickland, 466 U.S. at 687-88. On
appeal, the defendant carries the burden of proving ineffective assistance by a pre-
ponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.
1985). Trial counsel’s performance is not to be judged with the benefit of hind-
sight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992); see also Bone
v. State, 77 S.W.3d 828, 833 n.12 (Tex.Crim.App. 2002) (holding that if the appel-
late court can imagine a strategic motive to explain the ineffective assistance claim,
then the reviewing court may not sustain the appellant’s point of error).
Specifically applying this standard to allegations that trial counsel was inef-
fective for failing to object, an appellate court will not presume that a failure to ob-
ject even to impermissible evidence or activity is, per se, ineffective assistance of
counsel. Strickland, 466 U.S. at 690. However, where there exists no reasonable
4 trial strategy for failing to make such an objection, ineffective assistance of counsel
will be found to have been rendered. Garcia v. State, 57 S.W.3d 436, 440
(Tex.Crim.App. 2001); Vasquez v. State, 830 S.W.2d 948, 951 (Tex.Crim.App.
1992); Chavez v. State, 6 S.W.3d 66, 71(Tex.App.—San Antonio 1999, pet. ref’d);
see also Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985). Here, ineffec-
tive assistance was rendered when trial counsel failed to raise a timely objection to
the improper application of parole law to Mr. Smith by the jury.
The State’s Argument
It is well established that a jury is prohibited from considering how parole
law and good time would be applied to a particular defendant. Hawkins v. State,
135 S.W.3d 72, 84 (Tex.Crim.App. 2004). Nonetheless, in closing argument the
State argued for a maximum sentence in part because it was a foregone conclusion
that Mr. Smith would be paroled at some point and would then need to be super-
vised for life. (V RR gen.).
So then what’s the difference between a life sentence and a 60-year sentence, if he’s eligible for parole at 15 no matter what?
Well, for one it sends a message to the community …, but it also en- sures that this person will be monitored and supervised for the rest of his life, period, no matter what. And I can’t really think of anybody who needs to be monitored and supervised for the rest of his life more than Lonnie Smith. That’s the only way you’re going to ensure that.
5 (V RR 13-14). After briefly explaining that they jury is prohibited from applying
parole law in calculating their sentence, the State then went ahead and urged them
to do just that:
But what we can guarantee is that with a life sentence, at a minimum Lonnie Smith will be supervised for the remainder of his natural life. That’s what a life sentence means.
(V R 25) (emphasis added).
Such comments, that a life sentence is warranted because the jury must take
into consideration how long they want to have Mr. Smith under the supervision of
parole, cannot be construed as anything other than urging the jury to apply parole
law to this particular defendant. Perez v. State, 994 S.W.2d 233, 236-37
(Tex.App.—Waco 1999, no pet.); Taylor v. State, 911 S.W.2d 906, 911
(Tex.App.—Fort Worth 1995, pet. ref’d); Clay v. State, 741 S.W.2d 209, 210
(Tex.App.—Dallas 1987, pet. ref’d). Such remarks are “tantamount to telling the
jury to disregard the charge of the Court on the applicable law and to apply the pa-
role laws” to Mr. Browning and trial counsel should have raised an appropriate ob-
jection when the State made such an argument. Clay, 741 S.W.2d at 211; but see
Taylor v. State, 233 S.W.3d 356, 358 (Tex.Crim.App. 2007) (holding that similar
arguments were not problematic and counsel was not ineffective for failing to ob-
ject.); see also Bone v. State, 77 S.W.3d 828, 833 n.12 (Tex.Crim.App. 2002)
(holding that if the appellate court can imagine a strategic motive to explain the in-
6 effective assistance claim, then the reviewing court may not sustain the appellant’s
point of error).
The Jury’s Note
That the State’s argument was effective and landed their desired blows is
made clear by a note sent out by the jury during their deliberations in which they
asked specifically about how parole would be applied to particular sentencing op-
tions. (V RR 30-31). Specifically, the jury asked:
Clarification: 25 dash 99 years, eligibility for parole in 15 years. Life sentence, is there any possibility of parole? What is the difference in 99 and life?
(Id.).
In response, the trial court proposed that the following be sent as a reply:
Members of the jury, the Court has received your note. The Court cannot give you any further instructions. Please refer to the Court’s charge and continue your deliberations.
(V RR 31). Without objection from either party this response was then sent back
to the jury. (Id.).
At the outset, Appellant must concede that the written charge of the court
contained a mostly proper parole instruction and included the admonition that the
jury was prohibited from considering how parole law and good time would be ap-
7 plied to Mr. Smith.1 (I CR 39-40); TEX. COE CRIM. PROC. ANN. Art. 37.07 §4(b);
Igo v. State, 210 S.W.3d 645, 647 (Tex.Crim.App. 2007). Appellant further recog-
nizes that there is a presumption on appeal that the jury followed the trial court’s
written instructions on this issue. Rose v. State, 752 S.W.2d 529, 554
(Tex.Crim.App. 1988) (op. on reh’g); Hawkins, 135 S.W.3d at 84 (Tex.Crim.App.
2004). However, this presumption is one that can be rebutted when the record es-
tablishes evidence to the contrary. Id.
When it becomes evident that the jury is concerned with how parole will be
applied in a particular case and is attempting to calculate its application for a par-
ticular defendant, a trial attorney should recognize the potential harm being done to
their client. As courts have noted, the purpose of the parole instruction is to benefit
the State by increasing the likelihood that a longer sentence will be imposed. Rob-
erts. v. State, 849 S.W.2d 407, 410 (Tex.App.—Fort Worth 1993, pet. ref’d).
When the jury sends out a note making clear they are attempting to calculate parole
in such a way as to apply it to a particular defendant in order to ensure that he re-
mains incarcerated as long as possible and trial counsel makes no attempt to miti-
gate that harm, counsel has abdicated one of their most basic responsibilities to
their client. See, e.g, Mata v. State, 141 S.W.3d 858, 868 (Tex.App.—Corpus
Christi 2004), rev’d on other grounds, 226 S.W.3d 425 (Tex.Crim.App. 2007)
1 To the extent that the instruction did not exactly mirror that in Section 37.07, that error was ei- ther neutral or was to Mr. Smith’s benefit. TEX. COE CRIM. PROC. ANN. Art. 37.07 §4(b)
8 (holding that it is the obvious “goal of every defense counsel at the punishment
phase of trial is to have the jury assess the least amount of punishment possible”).
The simple answer for trial counsel, and the act which would indicate effec-
tive assistance, would have been for counsel to ask that the court responded with
the instruction it is required by statute to give. See Hutch v. State, 922 S.W.2d
166, 170 (Tex.Crim.App. 1996) (court is required to give the law applicable to a
case). This includes the applicable instruction for parole, importantly, that a jury
may not apply or attempt to apply parole calculations to a defendant. TEX. CODE
CRIM. PROC. art. 37.07 § 4(b). Thus, in response to the jury’s questions, defense
counsel should have objected to the obvious consideration of parole by the jury,
objected to the vague and incomplete instruction given by the trial court, and re-
quested that the jury be instructed, “You are not to consider the manner in which
the parole law may be applied to this particular defendant.” TEX. CODE CRIM.
PROC. art. 37.07 §4(b); see also Luquis v. State, 72 S.W.3d 355, 363
(Tex.Crim.App. 2002) (as to the written charge the giving of such an instruction is
mandatory); Hawkins, 135 S.W.3d at 84 (“The law specifically provides that the
jury may consider the existence of parole law and good time in making its punish-
ment determination; the jury is simply prohibited from considering how parole law
and good time would be applied to a particular defendant.”); but see Byrd v. State,
192 S.W.3d 69, 72 (Tex.App.—Houston [14th dist.] 2006, pet. ref’d) (a “jury may
9 base its …punishment in part on consideration of a sentenced defendant’s parole
eligibility…). By failing to do so, trial counsel not only abdicated his responsibil-
ity to Mr. Smith but also effectively aided in ensuring that the sentence returned
would be on the high-end as the jury’s improper consideration of parole for that
purpose went unchecked. But see, Sandoval v. State, No. 12-12-00366-CR, 2013
WL 3967242 (Tex.App.—Tyler July 31, 2013, pet. ref’d) (in which this Court re-
jected this argument under similar circumstances).
Harm Analysis
Viewing the unobjected to argument by the State, coupled with the implicit
attempt by the jury to calculate how long it would take before Mr. Smith would be
released on parole, in light of the fact that Mr. Smith was ultimately given a life
sentence, harm seems hard to dispute. But see Lee v. State, No. 12-09-00221-CR,
2010 WL 1899675 (Tex.App.—Tyler May 12, 2010, pet. ref’d) (not designated for
publication) (in which this Court found no harm under comparable circumstances).
That is, but for trial counsel’s failure to raise a proper objection to the instruction
given and request that a complete instruction be submitted, Mr. Smith’s sentence
may have been something significantly less than life. Strickland, 466 U.S. at 687-
88 (standard of review). And while this is an admittedly nebulous assertion of
harm, Appellant would ask the Court to consider that his is not the objective to
prove harm but, rather, to ask the Court whether it can be certain that the error did
10 not influence the jury or did so only slightly. See Schutz v. State, 63 S.W.3d 442,
444 (Tex.Crim.App. 2001) (harm is not resolved “by asking whether the appellant
met a burden of proof to persuade us that he suffered some actual harm). Because
the Court cannot confidently answer that question given the record before it, the
judgment should be reversed and the case remanded for a new trial on punishment.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court,
because Mr. Smith received ineffective assistance during the punishment phase of
trial, reverse the underlying judgment and remand the case for a new trial on sen-
tencing.
Respectfully submitted,
/s/ Austin Reeve Jackson Texas Bar No. 24046139 305 S. Broadway, Suite 700 Tyler, TX 75702 Telephone: (903) 595-6070 Facsimile: (866) 387-0152
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this brief was delivered to counsel for
the State by efile / facsimile concurrently with its filing in the Court.
/s/Austin Reeve Jackson
11 CERTIFICATE OF COMPLIANCE
I certify that this document complies with the requirements of Rule 9.4 and
consists of 2,382 words.
/s/ Austin Reeve Jackson