ACCEPTED 06-14-00158-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 1/30/2015 2:11:26 PM DEBBIE AUTREY CLERK
IN THE COURT OF APPEALS SIXTH DISTRICT OF TEXAS AT TEXARKANA FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 1/30/2015 2:11:26 PM __________________________________________________________ DEBBIE AUTREY Clerk NO. 06-14-00158-CR ___________________________________________________________
Semaj Milan Yrnah Smith, Appellant
vs.
THE STATE OF TEXAS, Appellee __________________________________________________________
On Appeal from County Court At Law No. 2 Hunt County, Texas Trial Court No. CR1300648
___________________________________________________________
APPELLEE’S BRIEF
JOSEPH T. O’NEILL Assistant County Attorney In and for Hunt County, Texas State Bar Number - 24076953 Hunt County Courthouse P.O. Box 1097 Greenville, Texas 75403-1097 (903) 408-4112 (903) 408-4297 Fax TABLE OF CONTENTS
SECTION PAGE
TABLE OF CONTENTS................................................................................. i
INDEX OF AUTHORITIES .......................................................................... ii
STATEMENT OF FACTS .............................................................................1
SUMMARY OF ARGUMENT.......................................................................1
ARGUMENT............................................................................................... 1-5
A. Appellant cannot establish through the record that counsel’s performance fell below and objective standard of reasonableness .........................................................3 B. Even if the first prong of Strickland was met, there is not a reasonable probability that the result would have been different but for the trial attorneys unprofessional error…………………………………………………………………… …4
PRAYER..........................................................................................................6
CERTIFICATE OF SERVICE ........................................................................7
CERTIFICATE OF WORD COUNT..............................................................8
i INDEX OF AUTHORITIES
CASES
Strickland v. Washington, 466 U.S. 668, (1984)
Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986)
Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999)
Tapia v. State, 933 S.W.2d 631 (Tex.App.-Dallas 1996)
Guajardo v. State, 24 S.W.3d 423, 427 (Tex.App.-Corpus Christi 2000)
Moore v. State, 11 S.W.3d 495, 498 (Tex.App.-Houston [14th Dist.] 2000)
ii STATEMENT OF FACTS
Appellee accepts as true the Statement of Facts provided by Appellant
with the following supplementation.
At the beginning of the hearing on August 22, 2014, Appellant was
asked by the trial judge if he understood the allegations made in the motion
to revoke community supervision, to which Appellant stated “Yes, sir.” (RR.
Vol. 1 p. 4). Appellant then admitted that all eight allegations in the motion
to revoke community supervision were true. (RR Vol. 1 p. 6-7). The trial
judge then asked the Appellant if anyone had promised him anything or
threatened him to plea true to these allegations, to which the Appellant
replied “No, sir”. (RR Vol. 1 p. 7). The trial judge then asked if the
Appellant was pleading true because the allegations were, in fact, true, to
which the Appellant replied “Yes, sir.” Id.
SUMMARY OF ARGUMENT
Appellant’s trial counsel’s performance during the motion to revoke
community supervision hearing does not satisfy either prong of the
Strickland test.
ARGUMENT
ISSUE : Failure to obtain an expert to review a positive drug test or object to
an allegation in the motion to revoke community supervision, where the
1 Appellant plead true to the allegations, does not meet the first prong of
Strickland.
STANDARD OF REVIEW
The United States Supreme Court presented a two-pronged test to determine
whether counsel's representation was so inadequate as to violate a
defendant's Sixth Amendment right to counsel. Strickland v. Washington,
466 U.S. 668, (1984). The opinion in Strickland established an authoritative
federal constitutional standard for determining ineffectiveness of counsel
and for ascertaining when such ineffectiveness is prejudicial. Hernandez v.
State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986).
First, the defendant must show that his counsel's performance fell below an
objective standard of reasonableness. Strickland v. Washington, 466 U.S.
668, (1984). There is a strong presumption that counsel's conduct fell within
the wide range of reasonable professional assistance. Id. Second, assuming
the defendant has demonstrated deficient assistance, it is necessary to
affirmatively prove prejudice. Id. In other words, appellant must show a
reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. Thompson v. State, 9 S.W.3d
808, 812 (Tex.Crim.App.1999). A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id. (citing Hernandez,
2 726 S.W.2d at 55). When a record does not affirmatively reflect ineffective
assistance, the court cannot say counsel's performance was defective. Tapia
v. State, 933 S.W.2d 631 (Tex.App.-Dallas 1996).
A. Appellant cannot establish through the record that the trial attorney’s
performance fell below and objective standard of reasonableness.
A convicted defendant 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. Hernandez v. State, 726 S.W.2d
53, 55 (Tex. Crim. App. 1986). Here, Appellant claims firstly that his
counsel on the motion to revoke community supervision was ineffective by
failing to obtain an expert to contest the results of a drug test. At no point on
the record did the defendant give any indication that the test results were
incorrect. In fact, Appellant freely admitted the allegation that he used
marijuana and cocaine on two separate occasions while on probation was
true. (RR. Vol 1. p. 7). To suggest that allowing a defendant to plead guilty
or true constitutes conduct falling below an objective standard of
reasonableness is, quite frankly, unreasonable. Forcing defense counsel to
obtain experts and present evidence regardless of the willingness of the
3 defendant to take responsibility for his actions would be a huge blow to
judicial economy and would bring the wheels of justice to a grinding halt.
Appellant’s second claim of ineffective assistance of counsel centers
around counsel’s failure to object to the first allegation of failure to make the
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ACCEPTED 06-14-00158-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 1/30/2015 2:11:26 PM DEBBIE AUTREY CLERK
IN THE COURT OF APPEALS SIXTH DISTRICT OF TEXAS AT TEXARKANA FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 1/30/2015 2:11:26 PM __________________________________________________________ DEBBIE AUTREY Clerk NO. 06-14-00158-CR ___________________________________________________________
Semaj Milan Yrnah Smith, Appellant
vs.
THE STATE OF TEXAS, Appellee __________________________________________________________
On Appeal from County Court At Law No. 2 Hunt County, Texas Trial Court No. CR1300648
___________________________________________________________
APPELLEE’S BRIEF
JOSEPH T. O’NEILL Assistant County Attorney In and for Hunt County, Texas State Bar Number - 24076953 Hunt County Courthouse P.O. Box 1097 Greenville, Texas 75403-1097 (903) 408-4112 (903) 408-4297 Fax TABLE OF CONTENTS
SECTION PAGE
TABLE OF CONTENTS................................................................................. i
INDEX OF AUTHORITIES .......................................................................... ii
STATEMENT OF FACTS .............................................................................1
SUMMARY OF ARGUMENT.......................................................................1
ARGUMENT............................................................................................... 1-5
A. Appellant cannot establish through the record that counsel’s performance fell below and objective standard of reasonableness .........................................................3 B. Even if the first prong of Strickland was met, there is not a reasonable probability that the result would have been different but for the trial attorneys unprofessional error…………………………………………………………………… …4
PRAYER..........................................................................................................6
CERTIFICATE OF SERVICE ........................................................................7
CERTIFICATE OF WORD COUNT..............................................................8
i INDEX OF AUTHORITIES
CASES
Strickland v. Washington, 466 U.S. 668, (1984)
Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986)
Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999)
Tapia v. State, 933 S.W.2d 631 (Tex.App.-Dallas 1996)
Guajardo v. State, 24 S.W.3d 423, 427 (Tex.App.-Corpus Christi 2000)
Moore v. State, 11 S.W.3d 495, 498 (Tex.App.-Houston [14th Dist.] 2000)
ii STATEMENT OF FACTS
Appellee accepts as true the Statement of Facts provided by Appellant
with the following supplementation.
At the beginning of the hearing on August 22, 2014, Appellant was
asked by the trial judge if he understood the allegations made in the motion
to revoke community supervision, to which Appellant stated “Yes, sir.” (RR.
Vol. 1 p. 4). Appellant then admitted that all eight allegations in the motion
to revoke community supervision were true. (RR Vol. 1 p. 6-7). The trial
judge then asked the Appellant if anyone had promised him anything or
threatened him to plea true to these allegations, to which the Appellant
replied “No, sir”. (RR Vol. 1 p. 7). The trial judge then asked if the
Appellant was pleading true because the allegations were, in fact, true, to
which the Appellant replied “Yes, sir.” Id.
SUMMARY OF ARGUMENT
Appellant’s trial counsel’s performance during the motion to revoke
community supervision hearing does not satisfy either prong of the
Strickland test.
ARGUMENT
ISSUE : Failure to obtain an expert to review a positive drug test or object to
an allegation in the motion to revoke community supervision, where the
1 Appellant plead true to the allegations, does not meet the first prong of
Strickland.
STANDARD OF REVIEW
The United States Supreme Court presented a two-pronged test to determine
whether counsel's representation was so inadequate as to violate a
defendant's Sixth Amendment right to counsel. Strickland v. Washington,
466 U.S. 668, (1984). The opinion in Strickland established an authoritative
federal constitutional standard for determining ineffectiveness of counsel
and for ascertaining when such ineffectiveness is prejudicial. Hernandez v.
State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986).
First, the defendant must show that his counsel's performance fell below an
objective standard of reasonableness. Strickland v. Washington, 466 U.S.
668, (1984). There is a strong presumption that counsel's conduct fell within
the wide range of reasonable professional assistance. Id. Second, assuming
the defendant has demonstrated deficient assistance, it is necessary to
affirmatively prove prejudice. Id. In other words, appellant must show a
reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. Thompson v. State, 9 S.W.3d
808, 812 (Tex.Crim.App.1999). A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id. (citing Hernandez,
2 726 S.W.2d at 55). When a record does not affirmatively reflect ineffective
assistance, the court cannot say counsel's performance was defective. Tapia
v. State, 933 S.W.2d 631 (Tex.App.-Dallas 1996).
A. Appellant cannot establish through the record that the trial attorney’s
performance fell below and objective standard of reasonableness.
A convicted defendant 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. Hernandez v. State, 726 S.W.2d
53, 55 (Tex. Crim. App. 1986). Here, Appellant claims firstly that his
counsel on the motion to revoke community supervision was ineffective by
failing to obtain an expert to contest the results of a drug test. At no point on
the record did the defendant give any indication that the test results were
incorrect. In fact, Appellant freely admitted the allegation that he used
marijuana and cocaine on two separate occasions while on probation was
true. (RR. Vol 1. p. 7). To suggest that allowing a defendant to plead guilty
or true constitutes conduct falling below an objective standard of
reasonableness is, quite frankly, unreasonable. Forcing defense counsel to
obtain experts and present evidence regardless of the willingness of the
3 defendant to take responsibility for his actions would be a huge blow to
judicial economy and would bring the wheels of justice to a grinding halt.
Appellant’s second claim of ineffective assistance of counsel centers
around counsel’s failure to object to the first allegation of failure to make the
payments ordered as a condition of his probation. Again, Appellee would
point to the record to show that at no point during the proceedings did
Appellant suggest he was unaware of how much his fines, court costs and
fees were. In fact, he stated to the court that not only did he understand the
allegations as they were presented, but also admitted that the allegation was
true. (RR. Vol. 1 pp. 4-6). The record simply does not suggest that counsel’s
performance fell below an objective standard of reasonableness and that his
failure to obtain an expert and failure to make an objection were not sound
trial strategies.
B. Even if the first prong of Strickland was met, there is not a reasonable
probability that the result would have been different but for the trial
attorney’s unprofessional error.
Pleading true to even one alleged violation of a community supervision
condition is sufficient evidence for a trial court to revoke a defendant’s
probation. See Guajardo v. State, 24 S.W.3d 423, 427 (Tex.App.-Corpus
Christi 2000) (pleas of true sufficient); Moore v. State, 11 S.W.3d 495, 498
4 (Tex.App.-Houston [14th Dist.] 2000) (proof of one violation sufficient). In
the instant case, Appellant plead true to all 8 allegations against him.
Appellant is incorrect in stating that the trial judge gave an “unambiguous
indication that had the defendant complied with some of the terms of his
probation, a lesser sentence would have been likely.” (Appellate Brief, p.
12). The trial judge stated that the “probation office is not going to file a
probation revocation if you’re too poor to pay.” (RR. Vol 1. P. 19). He then
stated that he could not see any reason for Appellant not to perform his
community service during the time he was unemployed. Id. He then
reminded Appellant that he had been sentenced to 180 days in jail as a result
of pleading guilty, but that Appellate would not have to serve jail time as
long as he adhered to the conditions of his probation. Id. At no point does
the trial judge suggest he would give Appellant any sentence less than the
180 day jail sentence he received.
5 PRAYER
WHEREFORE, the State respectfully prays this court affirm the
judgment herein.
Respectfully submitted,
/s/_JOSEPH T. O’NEILL___
JOSEPH T. O’NEILL Assistant County Attorney of Hunt County State Bar Number – 24076953 Hunt County Courthouse P.O. Box 1097 Greenville, Texas 75403-324 (903) 408-4112 (903) 408-4297 Fax
ATTORNEY FOR THE STATE
6 CERTIFICATE OF SERVICE
The undersigned Attorney hereby certifies that a true and correct copy
of this State’s Brief had been served via hand delivery this date to Jason
Duff, 2615 Lee Street Greenville, Texas this the 28th day of January, 2015.
/s/_JOSEPH T. O’NEILL________ Joseph T. O’Neill
7 CERTIFICATE OF WORD COUNT
I certify that this document brief/petition was prepared with Microsoft Word 2012, and that, according to that program’s word-count function, the sections covered by TRAP 9.4(i)(1) contain 1005 words.
Sincerely,
/S/_JOSEPH T O’NEILL
JOSEPH T. O’NEILL Assistant County Attorney of Hunt County State Bar Number – 24076953 Hunt County Courthouse P.O. Box 1097 Greenville, Texas 75403-324 (903) 408-4112 (903) 408-4297 Fax