ACCEPTED 12-15-00032-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 5/20/2015 4:20:40 PM CATHY LUSK CLERK
NO. 12-15-00031 CR NO. 12-15-00032 CR FILED IN IN THE 12th COURT OF APPEALS TYLER, TEXAS 5/20/2015 4:20:40 PM TWELFTH COURT OF APPEALS CATHY S. LUSK Clerk SITTING AT TYLER, TEXAS
___________________________
MITZI GAIL ALLGOR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
Appealed from the County Court at Law of Nacogdoches County, Texas Trial Court Nos. CF1302373 and CF1302374
APPELLANT’S BRIEF
Noel D. Cooper Texas Bar No. 00796397 LAW OFFICES OF NOEL D. COOPER 117 North St., Suite 2 Nacogdoches, Texas 75961 Telephone: (936) 564-9000 Telecopier: (936) 715-6022 Email: noelcooper@noelcooper.com ATTORNEY FOR APPELLANT, MITZI GAIL ALLGOR
ORAL ARGUMENT REQUESTED NO. 12-15-00031 CR NO. 12-15-00032 CR
IDENTITY OF PARTIES & COUNSEL
Appellant certifies that the following is a complete list of the parties,
attorneys, and any other person who has any interest in the outcome of this
lawsuit:
Noel D. Cooper Texas Bar No. 00796397 LAW OFFICES OF NOEL D. COOPER 117 North St., Suite 2 Nacogdoches, Texas 75961 Telephone: (936) 564-9000 Telecopier: (936) 715-6022 Email: noelcooper@noelcooper.com ATTORNEY FOR APPELLANT, MITZI GAIL ALLGOR
Stephanie Stephens State Bar No. 19160055 NACOGDOCHES COUNTY ATTORNEY 101 W. Main, Suite 233 Nacogdoches, Texas 75961 Telephone: (936) 560-7789 Fax: (936) 560-7809 Email: sstephens@co.nacogdoches.tx.us ATTORNEY FOR APPELLEE
-2- MITZI GAIL ALLGOR APPELLANT
-3- TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL .......................................................... 2
TABLE OF CONTENTS ................................................................................. 4
INDEX OF AUTHORITIES ........................................................................... 5 STATEMENT OF THE CASE ........................................................................ 7
ISSUES PRESENTED ................................................................................... 8
STATEMENT OF FACTS ............................................................................... 8 SUMMARY OF THE ARGUMENT...............................................................13
ARGUMENT AND AUTHORITIES ..............................................................13 Issue 1: Was Appellant’s trial counsel ineffective in his representation of the Appellant? .....................................13
CONCLUSION ............................................................................................. 18
PRAYER .......................................................................................................19 CERTIFICATE OF COMPLIANCE ...............................................................19 CERTIFICATE OF SERVICE ....................................................................... 20
-4- INDEX OF AUTHORITIES
Case Law
Bell v. Cone, 535 U.S. 685, 152 L Ed 2d 914 (2002) ................................................................................................. 15
Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997) ........................................................................ 17
Bryant v. State, 187 S.W.3d 397 (Tex. Crim. App. 1995) ........................................................................ 15
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1996) ........................................................................14
Hudson v. State, 145 S.W.3d 323 (Tex. App.—Fort Worth 2004, pet. ref’d) ........................................... 17
Sanchez v. State, 222 S.W.3d 85 (Tex. Crim. App. 2006) .......................................................................14
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) ............................................................................................ 13, 14
United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) .................................................................................................. 15
United States v. Williamson, 53 F.3d 1500 (10th Cir. 1995) ................................................................................... 15
Statutes
TEX. CODE CRIM. PROC. Article 42.12 .................................................................................. 16, 17
TEX. HEALTH & SAFETY CODE Section 481.121 ................................................................................ 7, 16
-5- TEX. PENAL CODE Section 12.43 ....................................................................................... 17 Section 38.03 .............................................................................7, 16, 17
-6- NO. 12-15-00031 CR NO. 12-15-00032 CR
COMES NOW, Noel D. Cooper, court-appointed counsel for
Appellant, MITZI GAIL ALLGOR, in the above numbered cause, and files
this Appellant’s Brief and would show this Honorable Court as follows:
STATEMENT OF THE CASE
Nature of the Case. Appellant was charged by information with
Resisting Arrest under TEX. PENAL CODE §38.03, a Class A misdemeanor.
The case was filed in the Nacogdoches County Court at law under Cause
Number CF1302373. Appellant was charged by information in a companion
case CF1302374 with Possession of Marijuana of an amount under two
ounces under TEX. HEALTH & SAFETY CODE §481.121, a Class B
misdemeanor.
Course of Proceedings. On October 13, 2014, a jury was selected, and
evidence was opened and closed on November 20, 2014. The punishment
hearing was held on January 8, 2015.
-7- Trial Court Disposition. The jury found Appellant guilty of Resisting
Arrest and Possession of Marijuana. The trial court assessed punishment at
240 days and 120 days, respectively, to run concurrently.
ISSUES PRESENTED
Issue 1: Was Appellant’s trial counsel was ineffective in his
representation of the Appellant during the jury trial?
STATEMENT OF FACTS
Jury Selection.
Appellant’s trial counsel made no objections during the voir dire. RRS
passim.
Opening Statements
Appellant’s trial counsel did not make any objections to the State’s
opening statement. RR 1:passim. During his opening statement,
Appellant’s trial counsel was into his fourth sentence, 41 words, when the
State’s objection to the argumentative nature of the opening was sustained.
RR 1:14. After the objection was sustained, Appellant’s trial counsel said
three more sentences, 17 words, and ceased. RR 1:15.
Brett Ayers
The state’s first witness was Brett Ayers, a police officer for the City of
Nacogdoches. RR 1:15. Officers with the Nacogdoches Police Department
-8- are allowed to work extra duty jobs and wear their uniform. RR 1:18. On
October 8, 2013, Officer Ayers was working as a security guard at Eastwood
Terrace Apartments in the City of Nacogdoches. RR 1:19-20. Mr. Ayers
identified Ms. Allgor. RR 1:20-21. Mr. Ayers noticed a vehicle operating at a
high rate of speed. RR 1:21. He pursued it in his private vehicle, and while
doing so observed the other vehicle drive through parking spaces to avoid
speed bumps. RR 1:22-23. When the vehicle stopped he pulled in behind
and determined that it was operated by Ms. Allgor. RR 1:23.
There was one other person with Ms. Allgor who he allowed to go, but
he said Ms. Allgor was not free to go. RR 1:24. While talking to Ms. Allgor,
she became very excited. RR 1:25. She told Mr. Ayers that she believed she
had a warrant for her arrest. RR 1:26. Ms. Allgor began yelling at a female
person to come and get her purse. RR 1:27. Mr. Ayers told her that the
other person could not come and get her purse. RR 1:27. After the other
person who was identified as Ms. Allgor’s teenage daughter complied with
Mr. Ayers, Ms. Allgor began dropping the contents of her purse on the
floorboard of her vehicle and began reaching down to the contents. RR
1:27-28. Mr. Ayers told her to show her hands, but she pressed something
against her leg. RR 1:29. He told her to show what was in her hands and she
wouldn’t comply. RR 1:30. Ms. Allgor took her left hand and tried to roll up
-9- the car window, and Mr. Ayers stopped her. RR 1:31. Ms. Ayers then threw
the object in her right hand out the passenger window. RR 1:31. Mr. Ayers
illuminated the ground with his flashlight and observed a clear plastic bag
that contained what he thought was marijuana. RR 1:31-32.
Ms. Allgor began to “struggle” to stay in the vehicle. RR 1:32. While
trying to get her out, she threw out her purse, too. RR 1:32. Mr. Ayers
grabbed her left arm to try to pull her out, and she starting twisting and
turning, and she kicked him in his legs. RR 1:33. Mr. Ayers was able to cuff
Ms. Allgor’s hands behind her back while she was standing. RR 1:34.
During this time, Ms. Allgor was calling on the young man and woman on
the passenger’s side of her vehicle to “get it.” RR 1:35. Mr. Ayers pulled Ms.
Allgor around to the passenger side of her vehicle and discovered two
baggies. RR 1:36-37. Ms. Allgor then put her foot on one of the baggies and
started grinding it into the ground, destroying one of the two baggies. RR
1:37-38. After putting Ms. Allgor on the ground, he was required to
threaten the young male with pepper spray to back off. RR 1:38-39.
After Ms. Ayers’s backup arrived, he searched Ms. Allgor’s vehicle and
discovered a cigar filled with a green leafy substance which he believed to
be marijuana in the closed, front middle console. RR 1:40-41. Inside State’s
Exhibit 2 was a green leafy substance that he believed was marijuana. RR
-10- 1:42. State’s Exhibit 3 appeared to be a hand rolled cigarette or cigar. RR
1:44. Mr. Ayers testified that both State’s Exhibits 2 and 3 were a usable
quantity of marijuana. RR 1:45.
Mr. Ayers testified that Eastwood Terrace was in the City of
Nacogdoches. RR 1:72.
Christy Bruton
The state’s next witness was Christy Bruton, an officer with the
Nacogdoches Police Department who handles evidence. RR 1:62.
Misdemeanor amounts of marijuana are not sent to the DPS crime lab for
analysis but instead stored in the evidence drug room. RR 1:63-64. State’s
Exhibits 1, 2, and 3 were logged in and stored by Ms. Bruton. RR 1:64. Once
this matter was set for trial, Ms. Bruton transported State’s Exhibits 1, 2,
and 3 to the DPS crime lab in Tyler. RR 1:64-65.
Caroline Allen
Caroline Allen was a forensic scientist employed by the DPS crime lab
in Tyler, Texas. RR 1:66. She testified as to the chain of custody of Exhibits
1, 2, and 3. RR 1:66-68. Exhibit 2 weighed 8.2 grams. RR 1:69. After
weighing Exhibit 2, she confirmed that it contained marijuana. RR 1:70.
Exhibit 3 contained 1.28 grams of marijuana. RR 1:70.
Mitzi Gail Allgor
-11- During the punishment hearing, Ms. Allgor took the stand. RR 2:8.
She testified that she was living with her three children and a grandchild.
RR 2:8. She testified that her two oldest children have schizophrenia and a
heart condition, respectively. RR 2:8-9. Ms. Allgor was responsible for the
wellbeing of four minor children. RR 2:11. There were no other adults who
could help her take care of her children. RR 2:12. Ms. Allgor testified that
she had been to prison and had some misdemeanor trouble, but she had
mostly stayed out of trouble. RR 2:13-14. Ms. Allgor’s son with
schizophrenia required constant watching. RR 2:16.
On cross examination, Ms. Allgor conceded that she had been
arrested and convicted on several occasions between 1993 and 2014. RR
2:17-22. She would not concede that she was guilty of the offenses in this
appeal. RR 2:22-23. Ms. Allgor said that she was sorry. RR 2:26.
Closing Argument
During his closing argument, Ms. Allgor’s trial counsel, Lee
Westmoreland, told that trial court that punishment was warranted , and
he requested that she be sentenced to 30 days in jail. RR 2:28. During a
discussion with the trial court judge, the following exchange took place:
THE COURT: . . .All right. Your client, based on the argument is to go to jail today, is that what you're saying? MR. WESTMORELAND: Obviously.
-12- THE COURT: You say go to jail for 30 days and she is saying 300 days, or whatever. Doesn't matter how long, she is going to jail. MR. WESTMORELAND: She is not eligible for probation. RR 2:32 (emphasis added).
After a recess, the trial court came back on the record for his ruling
and stated on the record that “the law doesn’t allow you any probation. And
I believe resisting arrest with priors is a minimum of 90 days. It can’t be 30
days.” RR 2:34. There was no objection by Mr. Westmoreland to the trial
court’s comments on the law. RR 2:34.
SUMMARY OF THE ARGUMENT
Appellant’s sole issue is that Appellant’s trial counsel was ineffective.
Assuming that trial counsel’s failure to contest the State’s case in chief
during the guilt/innocence stage of the trial, Appellant’s trial counsel was
ineffective by not understanding the law, making an erroneous judicial
admission, and failing to correct errors of the trial court regarding
Appellant’s probation eligibility.
ARGUMENT AND AUTHORITIES
Issue 1: Appellant’s trial counsel was ineffective in his representation of the Appellant during the jury trial. Argument & Authorities
The adequacy of counsel’s representation is evaluated using the two-
part standard articulated by Strickland v. Washington, 466 U.S. 668, 694,
-13- 104 S.Ct. 2052, 2068 (1984) and adopted by Hernandez v. State, 988
S.W.2d 770, 772 (Tex. Crim. App. 1996). Sanchez v. State, 222 S.W.3d 85,
90 (Tex. Crim. App. 2006). The test is: 1) whether the attorney’s
performance fell below an objective standard of reasonableness under
prevailing professional norms, and 2) whether there is a reasonable
probability that, but for counsel’s unprofessional errors, the results of the
proceedings could have been different. Id. Reasonable probability is a
probability sufficient to undermine confidence in the outcome. Hernandez
v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986).
The reviewing court begins with the presumption that counsel’s
actions and decisions were reasonably professional and motivated by sound
trial strategy. Sanchez, 222 S.W.3d at 90. The party challenging counsel’s
effectiveness has the burden to rebut the presumption by presenting
evidence. Id. at 90.
Appellant’s trial counsel was ineffective.
In the present case, the record shows that trial counsel’s performance
affected the outcome of the case as required by the Strickland test. See
Strickland v. Washington, 466 U.S. 668, 694-95, 104 S.Ct. 2052, 2068
(1984). Strickland requires that, to show ineffective assistance of counsel,
an appellant must prove that his attorney’s representation fell below an
-14- objective standard of reasonableness under the prevailing professional
norms and that there is a reasonable probability that, but for those
unprofessional errors, the result of the proceeding would have been
different. Id. at 694-95.
The United States Supreme Court recognized a limited exception to
Strickland, holding that “if counsel entirely fails to subject the
prosecution's case to meaningful adversarial testing, then there has been a
denial of Sixth Amendment rights that makes the adversary process itself
presumptively unreliable.” United States v. Cronic, 466 U.S. 648, 658-59,
104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). For Cronic to apply, however, the
attorney's failure to test the prosecutor's case "must be complete." Bell v.
Cone, 535 U.S. 685, 696-97, 152 L Ed 2d 914 (2002). Courts have
sometimes found this complete failure where counsel abandons his client in
closing argument by conceding his guilt. See United States v. Williamson,
53 F.3d 1500, 1511 (10th Cir. 1995) (collecting cases in which closing
statements admitting guilt on the only disputed fact issues was Cronic
error).
“A defendant in a criminal case may stipulate to evidence against him.
If the defendant elects to do this, his stipulation is a kind of judicial
admission.” Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 1995).
-15- “Judicial admissions are not evidence at all. Rather, they are formal
concessions in the pleadings in the case or stipulations by a party or counsel
that have the effect of withdrawing a fact from issue and dispensing wholly
with the need for proof of the fact.” Id. (citing 2 JOHN W. STRONG, ET AL.,
MCCORMICK ON EVIDENCE § 255 (5th ed.1999)).
An express waiver, made in court or prepatory to trial, by the party or his attorney, conceding for the purposes of the trial the truth of some alleged fact, has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted; so that the one party need offer no evidence to prove it, and the other is not allowed to disprove it. This is what is commonly termed a solemn — i.e., ceremonial or formal — or judicial admission, or stipulation. It is, in truth, a substitute for evidence, in that it does away with the need for evidence. Id. (citing 9 WIGMORE ON EVIDENCE § 2591 (3d ed.1940) (emphasis
deleted)).
Irrespective of trial counsel’s performance or lack thereof during the
guilt-innocence stage of the trial, it was during the punishment hearing that
the ineffectiveness became readily apparent. As discussed above, Ms.
Allgor’s trial counsel told the trial court that she was not eligible for
probation from the judge. RR 2:32. This is a complete misstatement of the
law. Resisting Arrest is a Class A misdemeanor. TEX. PENAL CODE §38.03(c).
Possession of Marijuana in an amount of two ounces or less is a Class B
misdemeanor. TEX. HEALTH & SAFETY CODE § 481.121(b)(1). Neither offense
is a “3g” offense. See TEX. CODE CRIM. PROC. art. 42.12 §3g. Accordingly, Ms.
-16- Allgor was eligible for probation from the trial court. See TEX. CODE CRIM.
PROC. art. 42.12 §3(a). However, the trial court took Mr. Westmoreland and
his word and told Ms. Allgor that she was not eligible for probation. RR
2:34.
Further, the trial court misstated the law with regard to the minimum
sentence for resisting arrest. Specifically, the trial court stated, “I believe
resisting arrest with priors is a minimum of 90 days. It can’t be 30 days.”
RR 2:34. This is a misstatement of law. Nowhere in the statute dealing with
Resisting Arrest does it state that the minimum confinement for a
subsequent offense is 90 days in jail. TEX. PENAL CODE §38.03 passim. The
likely basis of this assertion is that, under certain circumstances, the
minimum confinement for a Class A misdemeanor can be increased to 90
days. TEX. PENAL CODE §12.43(a)(2). However, that minimum confinement
is not the only allowable punishment. TEX. PENAL CODE §12.43(a)(1),(3).
More importantly, the State did not provide Ms. Allgor or her trial counsel
with any notice that it was seeking to enhance the punishment under
Section 12.43. CR passim. Because she was not provided with any notice
that the State sought to enhance her punishment as to either charge, her
prior convictions did not operate to change the minimum punishments. See
Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997); Hudson v.
-17- State, 145 S.W.3d 323, 326 (Tex. App.—Fort Worth 2004, pet.
ref’d)(holding that notice given to defendant before punishment hearing
but after commencement of guilt-innocence was untimely). Ms. Allgor’s
trial counsel made no objections to the trial court’s statements about the
minimum confinements or probation eligibility when it could have changed
the outcome. RR 2:passim.
CONCLUSION
By telling the trial court that Ms. Allgor was not eligible for probation,
he effectively took that issue out of contention, and failed to subject the
State’s case to adversarial testing. Ms. Allgor was already on probation in
another case. RR 2:31. Further, there was discussion back and forth
regarding what types of conditions could be placed on Ms. Allgor should
she receive probation on this matter. RR 2:31. However, based on Mr.
Westmoreland’s statements, the trial court told Ms. Allgor that she could
only go to jail. RR 2:32. It was clear from Ms. Allgor’s testimony that she
wanted probation, and it is inconceivable that a misstatement of law would
be trial strategy. As such, Ms. Allgor was undoubtedly harmed, and the
performance of her trial counsel unfortunately had a profound effect upon
the outcome of the case.
-18- PRAYER
Appellant prays that the Court reverse the judgment of the trial court
convicting her of Resisting Arrest and Possession of Marijuana and remand
this matter to trial court for a new trial. In the alternative, Appellant prays
that the Court reverse the judgment of the trial court and remand this
matter to the trial court for a new trial on punishment. Appellant prays for
any further relief to which she is entitled.
Respectfully submitted,
/s/Noel D. Cooper Noel D. Cooper Texas Bar No. 00796397 LAW OFFICES OF NOEL D. COOPER 117 North St., Suite 2 Nacogdoches, Texas 75961 Telephone: (936) 564-9000 Telecopier: (936) 715-6022 Email: noelcooper@noelcooper.com ATTORNEY FOR APPELLANT, MITZI GAIL ALLGOR
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this document is
computer generated and contains 2,463 words based on a computer word
count.
/s/Noel D. Cooper NOEL D. COOPER
-19- CERTIFICATE OF SERVICE
I certify that I delivered a copy of this Appellant’s Brief to each
attorney of record or party in accordance with the Texas Rules of Appellate
Procedure on May 20, 2015, at the addresses and manners below.
Stephanie Stephens State Bar No. 19160055 NACOGDOCHES COUNTY ATTORNEY 101 W. Main, Suite 233 Nacogdoches, Texas 75961 Telephone: (936) 560-7789 Fax: (936) 560-7809 Email: sstephens@co.nacogdoches.tx.us Via Electronic Filing Manager
/s/Noel D. Cooper Noel D. Cooper Attorney for Appellant
-20-