ACCEPTED 13-15-00165-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 13-15-00165-CR 8/5/2015 9:41:41 PM CECILE FOY GSANGER CLERK
No. 14-08-9586CR FILED IN IN THE 13TH COURT OF APPEALS OF TEXAS 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS THE STATE OF TEXAS, 8/5/2015 9:41:41 PM APPELLEE CECILE FOY GSANGER Clerk v.
Raymond Clinton Hammer APPELLANT
ON APPEAL FROM Cause No. 13-15-00165-CR, THE 25TH JUDICIAL DISTRICT COURT OF TEXAS OF LAVACA COUNTY
DEFENDANT/APPELLANT’S ORIGINAL BRIEF (DEFENDANT’S APPEAL)
Chris Iles Attorney at Law Park Tower 710 Buffalo Street, #802 Corpus Christi, Tx. 78401 361.883.2020 Fax: 866.565.5343 SBOT# 00789391 Appointed Counsel for Defendant/Appellant
ORAL ARGUMENT IS REQUESTED
1 IDENTITY OF PARTIES AND ATTORNEYS State’s Trial and Appellate Attorney: MR. STUART FRYER County Attorney/Lavaca County SBOT#: 07497300 P.O. Box 576 109 N. LaGrange Hallettsville, Texas 77964 Phone No.: 361.798.4757 Attorney for the State
Appellant: HAMMER,RAYMOND CLINTON 01986597 DOMINGUEZ UNIT 6535 Cagnon Road San Antonio, TX 78252-2202
Appellant’s Trial Attorney: MR. THOMAS F. HILLE Attorney At Law SBOT#: 24029613 P.O. Box 2356 Seguin, Texas 78156 Phone No.: 210.317.7430
Appellant’s Appellate Attorney: Chris Iles Attorney at Law Park Tower 710 Buffalo Street, #802 Corpus Christi, Tx. 78401 361.883.2020 Fax: 866.565.5343 SBOT# 00789391
2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND ATTORNEYS . . . . . . . . . . . . . . . . . . . . 2
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF THE CASE …. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..5
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ISSUES PRESENTED……………………………………………………....8
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ISSUE #1 Defense counsel committed ineffective assistance of counsel when he failed to object to burden shifting by the state in closing argument.
CONCLUSION AND PRAYER .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
RULE 9.4 (I) CERTIFICATION 16
3 INDEX OF AUTHORITIES
CASES
Hernandez v. State, 726 S.W.2d 53 9 Strickland v. Washington, 466 U.S. 668 passim Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App. 1996) 11 Denton v. State, 920 S.W.2d 311 (Tex.Cr.App. 1996) 11 Harris v. State, 790 S.W.2d 568, 585 (Tex.Cr.App. 1989) 11 Lowry v. State, 692 S.W.2d 85, 87 (Tex. Crim. App. 1985) 11 Middlebrook v. State, 803 S.W.2d 355, 361 12 Smith v. State, 898 S.W.2d 838, 845 12 Alejandro v. State, 493 S.W.2d 230 12 Gaddis v. State, 753 S.W.2d 396, 12 Coffin v. United States, 156 US 432 (1895) 12 Estelle v. Williams, 425 US 501 (1976) 12 Jackson v. State, 973 S.W.2d 954 12 Thompson v. State, 9 S.W.3d 808 12 Gamble v. State, 916 S.W.2d 92 12 Robinson v. State, 16 S.W.3d 808, 809-10 14 Castoreno v. State, 932 S.W.2d 597 14 McFarland v. State, 928 S.W.2d 482 14 Ex Parte Davis, 866 SW2d 234 14 Ex Parte Felton, 815 SW2d 733 14 Weathersby v. State, 627 SW2d 729 15 MISCELLANEOUS US Due Process Clause Passim TRAP 33.1 15
4 STATEMENT OF THE CASE
Appellant was indicted on August 21, 2014 for aggravated assault
with a deadly weapon. (Indictment) On February 17, 2015 jury selection and
trial was commenced. RR4. On February 18, 2015 the jury found Appellant
guilty as charged, and imposed 5 years imprisonment. (Jury Verdict) CR
63-64. On Feb. 18, 2015, Appellant timely filed his notice of appeal and
the instant appeal ensued.(Notice of Appeal)
STATEMENT OF FACTS
The state called Rebecca DeLuna Perez, Jail Administrator for the
Lavaca County Jail, as its first witness, who testified as follows: (RR4, 101-
145) On July 3, 2014, she was in the hallway of the jail at about 4:00 PM
when she heard yelling. ID 103. When she went in cell number B1, she saw
that appellant Hammer was yelling and being held against the wall. ID 104.
She saw that another inmate, Trey Sloma, had a gash on his neck, so she
removed him out of the cell. ID 105-106. In the cell she discovered a flex
pen reinforced with the clear wrapping of a deodorant stick. ID 107-108.
The alleged victim did not ask to see a doctor. ID 121. Appellant first
submitted a medical request for treatment on July 11, 2014. ID. Appellant
had blood on his lip and on his shirt. ID 126. There was no DNA evidence
submitted for analysis. ID 127. The shank made its way into Appellant's
5 property bag within 30 seconds after she heard commotion in the cell. ID.
129. She was also recalled as a witness by the state. RR 5, 5-20.
The state called as its next witness James Whited, patrol deputy for
the Lavaca County Sheriff's office, who testified as to his investigation. ID.
145-180.
The state called as its next witness Payton Evans, an inmate who
testified as to what he saw and heard on the day of the alleged assault. Id.
180-205.
The state called as its next witness William Sloma, the alleged victim,
who testified to the details of the alleged assault. Id. 205-225.
The state next called Johnny Ray Hammer, an inmate who testified as
to what he saw and heard on the day of the alleged assault. id. 225-241.
The state then rested. RR 5, 20.
The defense called defendant Hammer who testified as to his
innocence. CR 5, 20-46.
The state argued the following in closing argument: RR 5, 81.
3 You heard, Mr. Evans did not even know the
4 name or could not identify who the person was. He kept
5 saying the man out in the hall. The man out in the hall.
6 The man out in the hall. Said he'd been in the tank for
6 7 three days with him, and so how did they have such a
8 great friendship? We had to bring in the complaining
9 witness William "Trey" Sloma for Mr. Evans to identify
10 him for purposes of the record. You knew who he was, but
11 the record is just black and white and does not.
12 There's talk about the video. The video is
13 of the hall and that question is whether or not Defendant
14 Hammer had his shirt on. That's all the video would
15 show. Becky Perez said he did not. She said she did not
16 recognize any injury to him until days later. This
17 defendant told you that when he filed his sick call, sick
18 card to go to see the doctor, that was his day he was
19 charged with aggravated assault with a deadly weapon. So
20 he had already cooked up his defense. He banged himself
21 into a table, into the tank, and inflicted that on
22 himself and then afterwards, days later, he didn't
23 complain about it when Becky patted him down. He didn't
24 say "ouch." All he complained about that day was his
25 lip.
SUMMARY OF THE ARGUMENT
7 Defense counsel committed ineffective assistance of counsel when he
failed to object to burden shifting by the state in closing argument.
ISSUES PRESENTED
ISSUE #1 Defense counsel committed ineffective assistance of counsel
when he failed to object to burden shifting by the state in closing argument.
ARGUMENT AND AUTHORITIES
STANDARD OF REVIEW: To show ineffective assistance of counsel,
an appellant must demonstrate that (1) counsel's representation fell below an
objective standard of reasonableness based on prevailing professional norms,
and (2) but for counsel's errors, there is a reasonable probability the result of
the proceeding would have been different. Strickland v. Washington, 466
U.S. 668, 687-88, 694. This standard of proof of ineffective assistance
applies to the punishment phase as well as to the trial stage of criminal
proceedings. Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.
1986).
ARGUMENT
This prosecutor in the following comments was improperly arguing
that defendant had the burden to prove his innocence: RR5, 81
There's talk about the video. The video is
8 13 of the hall and that question is whether or not Defendant
15 show.
This comment was designed to encumber defendant with the burden
of producing a video which could have exculpated it himself, thereby
shifting the burden onto defendant.
This
20 he had already cooked up his defense.
This comment was designed to convince the jury that the defendant
had the burden to prove his innocence.
This burden shifting violated Due Process rights under the Texas and
US Constitutions, statutory and case law. Defendant has no obligation to
prove anything. The trial court erred in permitting the state, in closing
argument, to improperly shift the burden of proof to defendant, which
tainted the jury and contributed to appellant's conviction.
The applicable legal standard of review is whether, in light of the
record as a whole, there is a reasonable possibility the improper argument
9 might have contributed to appellant's conviction. Wilson v. State, 938
S.W.2d 57 (Tex. Crim. App. 1996) citing Denton v. State, 920 S.W.2d 311
(Tex.Cr.App. 1996) In applying this standard of review the court does not
look for overwhelming evidence of guilt because it is improper for an
appellate court to substitute its judgment for that of the factfinder. Harris v.
State, 790 S.W.2d 568, 585 (Tex.Cr.App. 1989). Instead, the court focuses
on the error and its possible impact. Id., 790 S.W.2d at 586-588. "If the error
was of a magnitude that it disrupted the [factfinder's] orderly evaluation of
the evidence, no matter how overwhelming it might have been, then the
conviction is tainted." Id., 790 S.W.2d at 588.
“The U.S. Supreme Court has . . . held that it is a violation of the due
process clause of the 14th Amendment to shift the burden of proof in a
criminal case to the defendant.” Lowry v. State, 692 S.W.2d 85, 87 (Tex.
Crim. App. 1985). [T]he burden of proof is on the Prosecution. And the
State must prove each and every element of the offense alleged beyond a
reasonable doubt. If the State fails to prove each element of the offense
beyond a reasonable doubt, the Jury has an absolute affirmative duty to
acquit and find the Defendant not guilty. If the State proves each
10 element of the offense beyond a reasonable doubt, the Jury has an absolute
duty to convict and find the Defendant guilty.” Middlebrook v. State, 803
S.W.2d 355, 361 (Tex. App.SFt. Worth 1990, pet. ref’d).
It is error for a prosecutor, through his argument, to shift the burden to
a defendant to bring forward evidence. See, e.g., Smith v. State, 898 S.W.2d
838, 845 (Tex. Crim. App.), cert. denied, 516 U.S. 843, 116 S. Ct. 131, 133
L. Ed. 2d 80 (1996). Permissible jury argument falls within four general
areas: (1) summation of the evidence; (2) reasonable deductions from the
evidence; (3) answer to the argument of opposing counsel; and (4) plea for
law enforcement. Alejandro v. State, 493 S.W.2d 230, 231-32
(Tex.Crim.App.1973). To constitute reversible error, jury arguments must be
extreme or manifestly improper, or inject new and harmful facts into
evidence. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988).
The presumption of innocence is one of the most fundamental and
crucial underpinnings of our constitution. It bears noting dicta from the US
Supreme Court that illustrates how crucial this principle is:
[t]he principle that there is a presumption of innocence in favor of the
accused is the undoubted law, axiomatic and elementary, and its
enforcement lies at the foundation of the administration of our criminal law.
Coffin v. United States, 156 US 432 (1895)
11 In modern decisions, the Supreme Court has noted that the
presumption of innocence, although not articulated in the Constitution, is a
basic component of a fair trial. Estelle v. Williams, 425 US 501 (1976).
Despite the foregoing, however, defense counsel failed to object to
the prosecutor's burden shifting comments and thereby waived appellate
review on the burden shifting issue.
Appellant has the burden of proving his claim by a preponderance of
the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App.
1998). The court applies a strong presumption that defense counsel was
competent. Thompson v. State, 9 S.W.3d 808, at 813. (Tex. Crim. App,
1999) It is presumed that defense counsel's strategy was sound and that the
representation was reasonable. Gamble v. State, 916 S.W.2d 92, 93 (Tex.
App.--Houston [1st Dist.] 1996, no pet.). In assessing whether a defendant
has overcome these presumptions, the court is limited to the facts of the
case. Thompson, 9 S.W.3d at 813.
An appellant "making a claim of ineffective assistance must identify
the acts or omissions of counsel that are alleged not to have been the result
of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S. Ct.
at 2052. Any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
12 ineffectiveness. Thompson, 9 S.W.3d at 813. The court cannot speculate
beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).
The Court of Criminal Appeals of Texas has held, however, that a
motion for new trial claiming ineffective assistance of counsel is not always
required to preserve that claim. See Robinson v. State, 16 S.W.3d 808, 809-
10 (Tex. Crim. App. 2000). A timely filed appeal is a proper procedure for
seeking relief regarding ineffective assistance of counsel. See id. A hearing
on a motion for new trial is required only when the motion raises matters
extrinsic to the record. See Castoreno v. State, 932 S.W.2d 597, 605 (Tex.
App.--San Antonio 1996, pet. ref'd). When an appellant's allegations of
ineffective assistance of counsel are firmly founded and affirmatively
demonstrated in the record, no evidentiary hearing is required. See
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996);
Castoreno, 932 S.W.2d at 605.
Failure to object may be held ineffective on appeal or a writ
application. Ex Parte Davis, 866 SW2d 234, (Tex. Crim. App. 1993) A
single material omission can constitute ineffective assistance. See, eg, Ex
Parte Felton, 815 SW2d 733, (Tex. Crim. App. 1991) Failure to preserve
appellate complaints can be the basis for a claim of ineffective assistance of
13 counsel. Weathersby v. State, 627 SW2d 729, (Tex. Crim. App. 1982).
(Failure to object to improper opinion testimony)
Regarding the first prong of the test on the issue of whether counsel's
representation fell below an objective standard of reasonableness based on
prevailing professional norms, appellant argues that it is objectively agreed
upon as a prevailing professional norm that in order to preserve error, trial
counsel must object. Weathersby v. State, 627 SW2d 729, (Tex. Crim. App.
1982) and TRAP 33.1. Since he did not, trial counsel was deficient and
committed ineffective assistance counsel, since he now cannot raise the
claim on direct appeal.
Regarding the second prong on the issue of whether, but for counsel's
errors, there is a reasonable probability the result of the proceeding would
have been different, appellant argues that there is indeed a reasonable
probability that the result of the proceeding would have been different. For
the reasons mentioned above, the net effect of the prosecutor being
permitted to make these burden shifting comments is that the jury was left
with the false idea that defendant was required to produce a video to prove
his innocence, in addition to having the general burden of proving his
innocence instead of the prosecutor having that burden.
14 Alternatively, the jury was left with the prejudicial impact of the
state's comments which outweighed any probative fact. In either event, it
cannot be proven beyond a reasonable doubt that this error did not affect
defendant’s fundamental constitutional right to receive a fair trial.
Trial counsel did not claim that failing to object on this issue was part
of any trial strategy. Furthermore, in light of the facts and record as a whole,
there is no plausible reason why trial counsel would not object to this issue.
Because of this ineffective assistance of counsel, defendant did not
receive a fair trial, since the jury verdict was undoubtedly tainted by this
error. A new trial is required.
CONCLUSION AND PRAYER
For the foregoing reasons, defendant respectfully requests that the
Court of Appeals vacate, overrule, or reverse the verdict of guilty and order
a new trial.
Respectfully Submitted,
___________________ Chris Iles Attorney at Law Park Tower 710 Buffalo Street, #802 Corpus Christi, Tx. 78401 361.883.2020
15 Fax: 866.565.5343 SBOT# 00789391 Appointed Counsel for Defendant/Appellant CERTIFICATE OF SERVICE
This is to certify that a copy of this brief was emailed and faxed to the District Attorney on 8-5-15 and sent via regular mail on same date to HAMMER,RAYMOND CLINTON 01986597, DOMINGUEZ UNIT 6535 Cagnon Road, San Antonio, TX 78252-2202.
___________________ Chris Iles
RULE 9.4 (I) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the number of words in this brief, excluding those matters listed in Rule 94.(i)(1), is 3,124.