Shockley, John David

Opinion

WR-49,642-02 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/28/2015 3:43:46 PM Accepted 10/28/2015 3:54:30 PM WR-49,642-02 ABEL ACOSTA CLERK W11-51734-T(A) RECEIVED EX PARTE § IN THE COURT COURT OF APPEALS OF CRIMINAL § 10/28/2015 ABEL ACOSTA, CLERK § CRIMINAL APPEALS § JOHN SHOCKLEY § OF TEXAS

OBJECTIONS TO THE TRIAL COURT’S ORDER ON SHOCKLEY’S APPLICATION FOR A WRIT OF HABEAS CORPUS

In Shockley’s Application for a Writ of Habeas Corpus, he argued that his

counsel was ineffective in advising him not to testify at the guilt phase of his trial for

aggravated robbery because he was the only person who could have provided evidence

that the “gun” used in the robbery was in fact a toy. See TEX. PEN. CODE § 29.03 (a

person commits the offense of aggravated robbery if, among other alternatives, he

commits robbery and uses or exhibits a deadly weapon). The trial court agreed that

counsel’s performance was deficient. The court determined that Shockley was not

prejudiced by his counsel’s deficient representation, though, because, in light of

Shockley’s criminal history, he was subject to the same sentencing range regardless

of whether he was convicted of aggravated robbery or robbery. And because the court

did hear the toy-gun evidence, albeit at punishment, and ostensibly factored it into

its sentencing decision, the court reasoned counsel’s failure made no difference.

The court was wrong. Even if Shockley’s sentence would have been the same

number of years, had the evidence been admitted at the guilt phase of trial, and

Shockley been convicted only of robbery, he would be eligible for parole when his

actual calendar time served plus good conduct time equals one-fourth of the sentence

1 imposed. See TEX. GOV'T CODE § 508.145(f). Because the evidence was only presented

at punishment, however, Shockley is not eligible for release on parole until his actual

calendar time served, without consideration of good conduct time, equals one-half of

the sentence. See TEX. GOV'T CODE § 508.145(d)(1); TEX. CODE CRIM. PROC. art. 42.12

§3g(a)(1)(F). Thus, in this instance, where Shockley was sentenced to 35 years’

imprisonment, counsel’s deficient performance resulted in a delay in parole eligibility

of 8.75 years. Certainly, this was prejudicial. See, e.g., Ex parte Scott, 581 S.W.2d 181

(Tex. Crim. App. 1979) (where counsel’s failure raised the possible punishment from

twelve years to life imprisonment, counsel’s deficient performance was prejudicial);

cf. Ex Parte Moussazadeh, 361 S.W.3d 684, 692 (Tex. Crim. App. 2012) (counsel’s

failure to inform defendant that he would not be eligible for parole until one-half of

his sentence was served, rather than one-fourth, was deficient and prejudicial).

Accordingly, Shockley objects to the district court’s order concluding otherwise.

For these reasons, and all those urged in Shockley’s original memorandum in

support of his application for a writ of habeas corpus, Shockley respectfully requests

this Court to reject the district court’s recommendation, and to find that that his

conviction for aggravated robbery illegally confines and restrains him of his liberty.

His conviction was had only upon an involuntary plea and the ineffective assistance

of his counsel. This Court should thus issue the Writ of Habeas Corpus, set aside his

conviction, and remand the case for a new trial. See, e.g., Strickland v. Washington,

466 U.S. 668, 694, (1984).

Respectfully submitted,

2 /s/ Bruce Anton BRUCE ANTON Bar Card No. 01274700 ba@sualaw.com

/s/ Brett Ordiway BRETT ORDIWAY State Bar No. 24079086 bordiway@sualaw.com

SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road, Suite 250 Dallas, Texas 75201 (214)-468-8100 (office) (214)-468-8104 (fax)

Counsel for Applicant

Certificate of Service

I, the undersigned, hereby certify that a true and correct copy of the foregoing Objections to the Trial Court’s Order on Shockley’s Application for a Writ of Habeas Corpus was mailed to the Dallas County District Attorney’s Office and the 283rd Judicial District Court of Dallas County on October 28, 2015.

/s/ Bruce Anton Bruce Anton