ACCEPTED 03-14-00559-CR 4993457 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/22/2015 4:04:26 PM JEFFREY D. KYLE CLERK No. 03-14-00559-CR FILED IN ______________________________________________________ 3rd COURT OF APPEALS AUSTIN, TEXAS 4/22/2015 4:04:26 PM In The Court of Appeals JEFFREY D. KYLE For The Third Court of Appeals District Clerk Austin, Texas ______________________________________________________
Zane Lynn Barton, Appellant, v. The State of Texas, Appellee. ______________________________________________________
ON APPEAL FROM THE 274th DISTRICT COURT, HAYS COUNTY, TEXAS TRIAL COURT CAUSE NO. CR-13-0614 ______________________________________________________
BRIEF FOR APPELLANT ORAL ARGUMENT REQUESTED ______________________________________________________ Amanda Erwin State Bar No. 24042936 109 East Hopkins Street, Suite 200 San Marcos, Texas 78666 Telephone: (512) 938-1800 Telecopier: (512) 938-1804 amanda@theerwinlawfirm.com Counsel for Zane Lynn Barton Identity of Parties and Counsel
Appellant:
Zane Lynn Barton
Appellate Counsel:
Amanda Erwin The Erwin Law Firm, L.L.P. 109 East Hopkins Street, Suite 200 San Marcos, Texas 78666 Telephone: (512) 938-1800 Telecopier: (512) 938-1804
Trial Counsel:
Jesus “Gabriel” Hernandez 507th West 10th Street Austin, Texas 78701 Telephone: (512) 964-9424
Tracy Reyes Franklin Behr law Firm 1920 Corporate Drive, Suite 108A San Marcos, Texas 786666 Telephone: (512) 353-5555
Appellee:
The State of Texas
Laura Garcia and Brian Erskine Hays County District Attorney’s Office 712 Stagecoach Trail, Suite 2057 San Marcos, Texas 78666 Telephone: (512) 393-7600
ii
Laura Garcia and Brian Erskine Hays County District Attorney’s Office 712 Stagecoach Trail, Suite 2057 San Marcos, Texas 78666 Telephone: (512) 393-7600
Trial Judge:
Hon. Gary L. Steel
iii
Table of Contents
Page
Identity of Parties and Counsel…………………..…………………..ii
Table of Contents………………………………...…………………..iv
Index of Authorities…………………………………………………..v
Statement of Case……………………………………………………..1
Statement of Issues ……………………………….…………………..1
Oral Argument Requested………………………...…………………..2
Statement of Facts………………………………...…………………..2
Summary of the Argument………………………..………………….11
Pint of Error One……………………………………………………..11
Standard of Review ……………………………….………………….11
Acts of Deficient Performance…………………...…………………..15
Prejudice……………………………………………………………...20
Prayer……………………………………………..…………………..23
Certificate of Service……………………………..…………………..25
Certificate of Word Limit Compliance………………...……………..26
iv
Index of Authorities
Cases Page
Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App. 2005)……………20
Bell v. Cone, 535 U.S. 685 (2000)…………………………………...13
Bird v. State, 527 S.W.2d 891, 893 (Tex.Crim.App. 1975)………….20
Burnett v. State, 88 S.W.3d 633 (Tex.Crim.App. 2002)………..........22
Collier v. Turpin, 155 F.3d 1277 (11th Cir. 1998)…………………....13
Ex parte Argent, 393 S.W.3d 781 (Tex.Crim.App. 2013)…………...18
Ex parte Martinez, 195 S.W. 3d 713 (Tex.Crim.App. 2006)………..15
Hardwick v. Crosby, 320 F.3d 1127 (11th Cir. 2003)………………..14
Jackson v. State, 766 S.W.2d 504 (Tex.Crim.App. 1985)…………...15
Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984)………………...14
McMann v. Richardson, 397 U.S. 759 (1970)……………………….12
Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999)…………………......14
O’Neal v. McAninch, 513 U.S. 432 (1995).………………………….22
Profitt v. Waldron, 831 F.2d 124 (5th Cir. 1987)…………………….14
Strickland v. Washington, 466 U.S. 668 (1984)………………..........12
United States v. Dominguez Benitez, 542 U.S. 74 (2004)……….......13
Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000)………….......14
Wiggins v. Smith, 539 U.S. 510 (2003)………………………………13
v
Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986)……….12
Statutes
TEX. R. APP. 21.4…………………………………………………..18
vi
Statement of the Case
This is an appeal from a criminal proceeding. The Appellant, Zane
Barton, is currently incarcerated. On August 7, 2013, a Hays County grand
jury returned an indictment charging Mr. Barton with Aggravated Assault
Serious Bodily Injury, enhanced to a first-degree felony for using a deadly
weapon during the commission of the assault, and for committing family
violence. (1 CR 12). On August 19, 2014, after being duly selected, a jury
was sworn. (3 RR 26). Mr. Barton entered a plea of not guilty to the
offense as alleged in the indictment. (3 RR 32). The jury subsequently
found Mr. Barton guilty of the offense as alleged in the indictment. (1 CR
88). The jury assessed punishment at life in the Institutional Division of the
Texas Department of Criminal Justice, and further assessed a ten thousand
(10,000.00) dollar fine. (1 CR 101). Mr. Barton was sentenced in opened
court on August 21, 2014. (1 CR 102). The trial court certified Mr.
Barton’s right to appeal. (1 CR 104). The Appellant’s notice of appeal
was timely filed. (1 CR 106).
Statement of the Issues
Point of Error One:
The Appellant was denied the effective assistance of counsel as a result of the Appellant’s trial counsel’s multiple acts of deficient performance.
Oral Argument Requested
The Appellant respectfully request that oral argument be granted in this
case.
Statement of Facts
On August 19, 2014, after being duly selected, a jury was sworn. (3
RR 26). Mr. Barton entered a plea of not guilty to the offense as alleged in
the indictment. (3 RR 32). The State made an opening statement to the
jury, as did the Appellant’s trial counsel. (3 RR 32-36).
The State called Matthew Daenzer, a police officer with the San
Marcos Police Department, as its first witness. (3 RR 37-38). Officer
Daenzer testified that on April 23, 2013, he was dispatched to the Central
Texas Medical Center for a possible robbery. (3 RR 39-41). While at the
Hospital, Officer Daenzer spoke with the alleged victim in the case, Stefanie
Hunt. (3 RR 20). Officer Daenzer testified that he observed multiple
bruises on Ms. Hunt’s body, cuts on Ms. Hunt’s cheeks, and a large
laceration across Ms. Hunt’s throat. (3 RR 42). The State admitted
photographs that Officer Daenzer took of Ms. Hunt’s injuries. (3 RR 42-43).
Officer Daenzer further testified that Ms. Hunt relayed to him that she
received the injuries from a black male mugging her. (3 RR 53).
The State then called Rich Mizanin, a patrol sergeant with the San
Marcos Police Department, who was the lead detective on the case against
Mr. Barton. (3 RR 36-37). Sergeant Mizanin testified that detectives with
the Hays County Sheriff’s office conducted an investigation at the Wal-Mart
where Ms. Hunt claimed she was attacked. (3 RR 80-81). While conducting
the investigation, the detectives were approached by Mr. Barton, who stated
that his wife was missing. (3 RR 80-81). Mr. Barton was transported to the
San Marcos Police Department so he could be interviewed. (3 RR 83).
Detective Mizanin testified that during the interview, Mr. Barton was
extremely fidgety and uncomfortable, and that he was mumbling things to
himself while he was alone. (3 RR 85). Detective Mizanin further stated
that Mr. Barton asked if he was going to be arrested, and that when an
officer who walked by with a ticket book, Mr. Barton questioned him, “is
that for me?” (3 RR 85). Mr. Barton relayed to officers that he was
working construction from 9:30 in the evening to 5:30 in the morning the
evening in question. (3 RR 67). Mr. Barton further relayed that he and Ms.
Hunt had been living under a bridge in San Marcos, and described the area.
(3 RR 69).
Sergeant Mizanin went to Brackenridge Hospital, and met with Ms.
Hunt, who told Sergeant Mizanin that a black male assaulted her. (3 RR 76).
Sergeant Mizanin testified that it appeared to him that the word “ZANE” had
been cut into the Ms. Hunt’s skin on her back and leg. (3 RR 79).
Sergeant Mizanin spoke with a black male, who was staying at a
Budget Inn in New Braunfels, Texas, and eliminated him as a suspect in the
case. (3 RR 83-84). Next, Sergeant Mizanin reviewed all of the Wal-Mart
surveillance tapes, and was unable to find any footage showing Ms. Hunt
being assaulted. (3 RR 85-86).
Approximately a week later, Sergeant Mizanin received a telephone
message from Mr. Barton, questioning what was going on with the case, as
well as a telephone message from Ms. Hunt’s father, Keith Hackenburg. (3
RR 88-89). Sergeant Mizanin made contact with Mr. Hackenberg, who
advised that Ms. Hunt wanted to tell law enforcement the truth about what
had happened to her. (3 RR 89). Ms. Hunt provided a written statement, as
well as an oral statement over the telephone, describing Mr. Barton as the
offender. (3 RR 89).
After speaking with Ms. Hunt, Sergeant Mizanin went out to the scene
where Ms. Hunt described the assault to have occurred, and took
photographs. (3 RR 90-100). Sergeant Mizanin attempted to make contact
with the man who found Ms. Hunt on the side of the road and took her to the
Central Texas Medical Center, but was unable to locate the subject. (3 RR
104-105).
The State then called Keith Hackenburg, Ms. Hunt’s Father, as a
witness. (3 RR 129). Mr. Hackenberg testified that he and his wife went to
pick Ms. Hunt up from the Hospital in Austin and brought Ms. Hunt back to
their home in Hockley, Texas. (3 RR 130-131). Mr. Hackenburg testified
that several days after bringing his daughter home, she opened up and told
him that Mr. Barton assaulted her. (3 RR 133-134).
The State then called Ms. Stefanie Hunt, the alleged victim in the case.
(3 RR 143). Ms. Hunt testified that she and Mr. Barton first dated back in
high school. (3 RR 143). Ms. Hunt testified that she reconnected with Mr.
Barton on Facebook sometime in 2012. (3 RR 144). Sometime after
reconnecting, Ms. Hunt left her home in Hockley, Texas with Mr. Barton to
go to Llano, Texas. (3 RR 146). The two used Ms. Hunt’s parent’s truck to
travel, which eventually ran out of gas and was abandoned by them in
Austin, Texas. (3 RR 146). The two made their way to New Braunfels,
Texas on foot, staying under bridges or anywhere they could find. (3 RR
147). At this time neither Ms. Hunt nor Mr. Barton were employed. (3 RR
147).
Ms. Hunt and Mr. Barton eventually ended up in San Marcos, Texas,
after a police officer in New Braunfels dropped them off in the city limits.
(3 RR 148). During their time in San Marcos, the two lived under a bridge
with big white rocks. (3 RR 150). Ms. Hunt testified that her injuries were
sustained form Mr. Barton assaulting her over a period of time. (3 RR 151).
The alleged assault began after the two went to eat pizza at a Little
Caesars, and Mr. Barton accused Ms. Hunt of looking at someone while
inside of the restaurant. (3 RR 151-152). Mr. Barton first threw rocks at
Ms. Hunt’s head, and then told Ms. Hunt to stand with her hands on the wall
while Mr. Barton hit Ms. Hunt on her back and legs with a belt. (3 RR 153).
Mr. Barton then hit Ms. Hunt with rocks again. (3 RR 155). Ms. Hunt
managed to run off, and a police officer stopped on the side of the road, but
instead of going with the police officer, Ms. Hunt went back to Mr. Barton.
(3 RR 155). Mr. Barton then hit Ms. Hunt with is belt buckle all over Ms.
Hunt’s body, including Ms. Hunt’s face and eyes. (3 RR 156, 159). Ms.
Hunt sustained a gash to the top of her head from Mr. Barton throwing a
rock at Ms. Hunt’s head. (3 RR 158-159). Mr. Barton cut Ms. Hunt’s hand
with a box cutter, and told her that, “this is what it’s going to feel like.”
(3 RR 161). Mr. Barton then cut X marks on Ms. Hunt’s cheeks with a box
cutter, and stated, “do you think anybody is going to think you’re pretty
now, do you think anybody is going to want you?” (3 RR 163). Mr. Barton
then instructed Ms. Hunt to get on her hands and knees, and Mr. Barton cut
Ms. Hunt’s neck. (3 RR 164). Mr. Barton handed Ms. Hunt his sweater to
wrap around her neck so she wouldn’t lose too much blood. (3 RR 165).
Ms. Hunt then went to sleep and woke up the next morning. (3 RR
166). Mr. Barton asked Ms. Hunt if she needed to go the hospital, and she
responded yes. (3 RR 168). Mr. Barton was crying, because he couldn’t go
to the hospital with Ms. Hunt. (3 RR 168). Ms. Hunt told Mr. Barton that
she would make something up about how she sustained her injuries,
specifically, that a black man by the Wal-Mart mugged her. (3 RR 169).
Ms. Hunt started walking down the road, and a man stopped in his
vehicle and drove Ms. Hunt to the hospital. (3 RR 171). While at the
hospital, Ms. Hunt allegedly told officers a fabricated story of how she
sustained her injuries. (3 RR 171). Ms. Hunt’s family came and picked her
up and brought her back to their home in Hockley, Texas. (3 RR 173).
Eventually, Ms. Hunt told her family that Mr. Barton had assaulted her. (3
RR 174). Ms. Hunt testified that she still has scars on her hand, her face,
and her neck from the assault. (3 RR 175-176).
On cross examination, Ms. Hunt testified that during the time she
reconnected with Mr. Barton on Facebook that she was still married, but that
her husband was in prison. (3 RR 179). After reconnecting, Ms. Hunt went
to visit Mr. Barton in Whitesboro, Texas. (3 RR 182). Mr. Barton then
came to Hockley, and met with Ms. Hunt’s parents to get permission for the
two to leave together. (3 RR 183). Ms. Hunt’s husband was upset that Mr.
Barton was with his wife in Hockley. (3 RR 185).
Ms. Hunt testified that Mr. Barton and her self used drugs while they
were staying in Llano, Texas. (3 RR 192). Ms. Hunt testified that she and
Mr. Barton also drank together. (3 RR 194). Ms. Hunt further testified that
she and Mr. Barton took meth together in a hotel in New Braunfels, Texas,
with two other people. (3 RR 194).
Ms. Hunt agreed that at some point during the assault she ran away and
made contact with an officer, but went back to Mr. Barton instead of getting
help. (3 RR 203-204).
The State then called Laurie Townsend, a nurse at the Central Texas
Medical Center. (3 RR 208-209). Ms. Townsend testified that on April 23,
2013, Ms. Hunt was her patient. (3 RR 210). Ms. Townsend testified that
she considered Ms. Hunt’s injuries to be very dangerous. (3 RR 214). Ms.
Townsend further testified that the injury on Ms. Hunt’s neck could create a
substantial risk of death for Ms. Hunt, as well as disfigurement. (3 RR 214,
215). On cross-examination, Ms. Townsend testified that Ms. Hunt listed
the Appellant, Zane Barton, as her spouse and emergency contact. (3 RR
231).
The State then called Dr. Nicholas Nunez, an emergency medicine
physician at The University Medical Center at Brackenridge. (4 RR 8). On
April 23, 2013, Ms. Hunt was Dr. Nunez’s patient. (4 RR 9-10). Dr. Nunez
testified that Ms. Hunt’s laceration on her neck created a substantial risk of
causing death. (4 RR 12). Dr. Nunez further testified that a tool of some
sort could only inflict Ms. Hunt’s laceration on her neck. (4 RR 17).
The State and the Appellant’s trial counsel both rested their cases, and
the State and the Defense then both closed their cases. (4 RR 31). The jury
charge was read aloud in open court, and the State and Defense made
closing arguments. (4 RR 34-68). The jury found the Appellant guilty as
charged. (4 RR 70).
The punishment phase commenced, and Mr. Barton pled true to the
enhancement paragraph in front of the jury, which then enhanced the
punishment range in the case to 15 to 99 years. (4 RR 74). The State made
an opening statement. (4 RR 74-76).
The State then called Ms. Hunt, the alleged victim. (4 RR 77). Ms.
Hunt detailed to the jury the first time Mr. Barton hit her, which was when
they were dating in high school. (4 RR 79). Ms. Hunt dropped out of high
school and Mr. Barton and her moved out of Hockley, Texas. (4 RR 81).
During this time period the two were living in Ms. Hunt’s vehicle. (4 RR
81). Ms. Hunt testified that Mr. Barton would burn Ms. Hunt’s arms with
cigarettes and hit Ms. Hunt’s knees with five or ten pound barbells. (4 RR
82). While Mr. Barton was at work, Mr. Barton made Ms. Hunt stay inside
of her vehicle’s trunk. (4 RR 83). At some point, Mr. Barton got arrested,
and Ms. Hunt went back to live with her family in Hockley, Texas. (4 RR
85).
Ms. Hunt then reconnected with Mr. Barton many years later through
Facebook. (4 RR 86). Mr. Barton began getting physical with Ms. Hunt
again, (4 RR 87). Ms. Hunt testified that at some point, Mr. Barton
allegedly talked about killing someone to get his or her vehicle. (4 RR 99).
The State then called Mr. Hackenberg, Ms. Hunt’s father. (4 RR 101).
The State rested, and the Defense announced to the jury and the trial
court that Mr. Barton was going to testify, but questioned the trial court if
they should proceed now or break for the day. (4 RR 113). The trial court
instructed the jury that they would break for the day and resume the
punishment hearing in the morning. (4 RR 113-114). The next morning,
the Defense stated that Mr. Barton was no longer going to testify to the jury,
and rested its case. (5 RR 4, 9).
The trial court read the charge of the court regarding punishment. (5
RR 10). The State and the Defense made closing statements, and the jury
subsequently sentenced the Appellant to life in the Texas Department of
Criminal Justice, Institutional Division, and further assessed a ten thousand
(10,000) dollar fine. (5 RR 13-35).
Summary of the Argument
The Appellant, Mr. Barton, contends that he was denied the effective
assistance of counsel, as a result of his trial counsel’s multiple acts of
deficient performance. Furthermore, the Appellant asserts that this denial of
effective assistance of counsel resulted in prejudice. Mr. Barton seeks this
Honorable Court to reverse the judgment of conviction and/ or punishment
below, or in the alternative, remand the case to the trial court to determine
Mr. Barton's competency and/or sanity at the time of the commission of the
offense, and/ or to determine whether trial counsel conveyed the plea offer to
Mr. Barton.
Point of Error One
The Appellant was denied the effective assistance of counsel, as a result of the Appellant’s trial counsel’s multiple acts of deficient performance.
The Standard of Review
A defendant in a criminal case is entitled to effective assistance of
counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).
Furthermore, counsel must act within the range of competence demanded of
counsel in criminal cases. McMann v. Richardson, 397 U.S. 759 (1970).
In Strickland v. Washington, the United States Supreme Court
established the federal constitutional standard for determining whether
counsel rendered reasonably effective assistance. Strickland v. Washington,
466 U.S. 668 (1984). The defendant first must show that counsel’s
performance was deficient; that counsel made errors so serious that he was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Id. at 687. Second, the defendant must show that the deficient
performance prejudiced the defense; that counsel’s errors were so serious as
to deprive the defendant of a fair trial with a reliable result. Id. at 692. The
defendant must identify specific acts or omissions of counsel that are alleged
not to have been the result of reasonable professional judgment. Id. at 690.
The reviewing court must then determine whether, in light of all the
circumstances, the identified acts or omissions were outside the range of
professionally competent assistance. Id. Ultimately, the defendant must
show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. Id. at 694. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
Counsel’s performance is measured against an “objective standard of
reasonableness under prevailing professional norms.” Wiggins v. Smith, 539
U.S. 510, 527 (2003). The prejudice an applicant must show is by less than
a preponderance of the evidence because “[t] he reasonable-probability
standard is not the same as, and should not be confused with, a requirement
that a defendant prove by a preponderance of the evidence that but for error
things would have been different.” United States v. Dominguez Benitez, 542
U.S. 74, 82 n. 9 (2004).
While the Appellant must overcome the “strong presumption” that
counsel’s challenged conduct “might be considered sound trial strategy,”
counsel may not insulate challenged conduct from review by claiming it was
“strategic.” Bell v. Cone, 535 U.S. 685, 698 (2000). Whether counsel’s
conduct was strategic is a question of fact, but whether it was objectively
reasonable is a question of law, to which no deference is owed. Collier v.
Turpin, 155 F.3d 1277, 1290 (11th Cir. 1998). As explained in Strickland,
the issue of ineffective assistance of counsel is not a question of “basic,
primary, or historical fact,” and “both the performance and prejudice
components of the ineffectiveness inquiry are mixed questions of law and
fact.” Strickland, 466 U.S. at 698. Moreover, strategic choices are entitled
to deference only to the extent they are based on informed decisions. Id. at
690-691.
This Court is “not required to condone unreasonable decisions
parading under the umbrella of strategy, or to fabricate tactical decisions on
behalf of counsel when it appears on the face of the record that counsel
made no strategic decision at all.” Moore v. Johnson, 194 F.3d 586, 604 (5th
Cir. 1999). See also Hardwick v. Crosby, 320 F.3d 1127, 1186 (11th Cir.
2003) (“The mere incantation of ‘strategy’ does not insulate attorney
behavior from review.”); Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir.
1984) (“even deliberate trial tactics may constitute ineffective assistance of
counsel if they fall outside the wide range of professionally competent
assistance”); Washington v. Hofbauer, 228 F.3d 689, 704 (6th Cir. 2000)
(“the label ‘strategy’ is not a blanket justification for conduct which
otherwise amounts to ineffective assistance of counsel”); Profitt v. Waldron,
831 F.2d 1245, 1248 (5th Cir. 1987) (“This measure of deference [to a claim
of trial strategy] must not be watered down into a disguised form of
acquiescence.”).
Lastly, it is possible that a single egregious error of omission or
commission by appellant’s counsel constitutes ineffective assistance of
counsel. Jackson v. State, 766 S.W.2d 504, 508 (Tex.Crim.App. 1985).
Acts of Deficient Performance
The first act of deficient performance is that Mr. Barton’s trial counsel
failed to investigate Mr. Barton’s mental health in regards to his competency
and/or sanity to stand trial.
One necessary facet of effective assistance of counsel is the
investigation of the facts and law as applicable to the case; counsel has the
duty in every case to make a reasonable investigation or a reasonable
decision that an investigation is necessary. Strickland v. Washington, 466
U.S. 668, 691 (1984). As the Texas Court of Criminal Appeals explained in
Ex parte Martinez, “When assessing the reasonableness of an attorney’s
investigation, a reviewing court must consider the quantum of evidence
already known to counsel and whether the known evidence would lead a
reasonable attorney to investigate further.” Ex parte Martinez, 195 S.W. 3d
713, 721 (Tex.Crim.App. 2006). Here, trial counsel was deficient when he
made an unreasonable decision to not investigate Mr. Barton’s mental
health, because there was considerable evidence known to trial counsel that
would lead a reasonable attorney to investigate further. Id. at 721.
The Appellant had court appointed trial counsel prior to Mr. Hernandez
being retained. (1 CR 18). The court appointed trial counsel had filed a
motion for Mr. Barton to be evaluated for competency and sanity because
there was evidence that would lead a reasonable attorney to investigate
further into Mr. Barton’s mental health. (1 CR 15). Specifically, in the said
motion, the court appointed trial counsel states that there was good cause for
the filing the said motion, because Mr. Barton was prescribed psychotropic
medications, and further that it was evident from a review of the evidence
that there existed valid questions regarding Mr. Barton’s mental health. (1
CR 15). This motion was never ruled upon, because there is no order in the
trial court’s file. (1 CR 15).
The record below further reflects that Detective Mizanin testified that
during his interview of Mr. Barton, Mr. Barton was extremely fidgety and
uncomfortable, and that Mr. Barton was mumbling things to himself while
he was alone. (3 RR 85). Detective Mizanin further stated that Mr. Barton
asked if he was going to be arrested, and that when an officer who walked
by with a ticket book, Mr. Barton questioned him, “is that for me?” (3 RR
85). Detective Mizanin’s testimony indicates that Mr. Barton could be
suffering from possible schizophrenia, because he was talking to himself,
and could also be suffering from a paranoid personality disorder or another
mental health issue because of the paranoid behavior Mr. Barton was
exhibiting. (3 RR 85).
Lastly, the fact that Mr. Barton and Ms. Hunt were living under a
bridge in San Marcos, and were homeless during the time frame of the
assault, is also a red flag that Mr. Barton may have mental health issues that
need to be investigated. (3 RR 69).
The record reflects that Mr. Barton received ineffective assistance of
counsel below, when Mr. Barton’s trial counsel made the unreasonable
decision to not assess Mr. Barton’s mental health, because there was
considerable evidence that would lead a reasonable attorney to investigate
further, including a previously filed motion that was never ruled upon
requesting that Mr. Barton’s mental health be evaluated. Id. at 721.
The second act of deficient performance is that Mr. Barton’s trial
counsel did not convey the plea offer to Mr. Barton. The record is void of
any oral record or written record that Mr. Barton was made aware of the plea
bargain in the case and the serious consequences of rejecting such plea
bargain.1 (1 CR 1-114).
Since the time period for a motion for new trial has lapsed, and it was
not possible to ascertain this issue before reviewing the full record below,
Appellant would respectfully request the Court to remand the case to the
trial court on this issue so that a full record can be developed. TEX. R. APP.
1 Appellate counsel spoke with trial counsel and was informed that there was a plea
offer of 25 years; Mr. Barton was never made aware of such offer until
correspondence with appellate counsel.
21.4. For, the Appellant contends that there is a reasonable probability that
Mr. Barton would have accepted the plea offer, if trial council had not given
ineffective assistance, the prosecution would not have withdrawn the offer,
and the trial court would not have refused to accept plea bargain. Ex parte
Argent, 393 S.W.3d 781, 784 (Tex.Crim.App. 2013). Mr. Barton contends
that he received ineffective assistance of counsel below, when trial counsel
failed to inform him of the plea offer. (1 CR 1-114).
The last act of deficient performance below is that Mr. Barton’s trial
counsel announced to the jury during the punishment phase of trial that Mr.
Barton would testify, and then the next day did not have Mr. Barton testify.
(4 RR 113). There is absolutely no possible trial strategy involved in this
action. Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999).
The record establishes that Mr. Barton’s trial counsel was calling Mr.
Barton to testify in that very instant in time, but that the trial court recessed
the case to the next day:
MS. GARCIA: No further witnesses. The State rests.
THE COURT: Is the Defense going to call any witnesses during
punishment?
MR. HERNANDEZ: It’s going to be Mr. Barton, Your Honor, So
we—I know we talked about the—we didn’t have a jury charge ready or a
jury pattern ready and we weren’t going to give it to the jury today. I didn’t
know if you want to break for the day and start again with my one witness in
the morning before we got it to them.
THE COURT: Okay. Ladies and gentlemen, I am going to ahead and
break for the day. (4 RR 113).
The above exchange reveals Mr. Barton’s trial counsels’ clear intention
that he was going to put Mr. Barton on the stand in that very moment in
time. (4 RR 113). The only reason that Mr. Barton did not testify before the
jury is that the trial court recessed the proceedings to the next day. (4 RR
113). The record does not contain any evidence that something had changed
between the moment in time that trial counsel was prepared to put Mr.
Barton on the stand and the next morning, when trial counsel did not put Mr.
Barton on the stand; therefore there cannot be any strategy behind this
action. (4 RR 113-118); (5 RR 9). The Appellant would contend that he
was not provided effective assistance of counsel in the punishment phase
due to trial counsel’s actions. Strickland v. Washington, 466 U.S. 668, 691
(1984). For, as the Texas Court of Criminal Appeals articulated in Andrews
v. State, “When no reasonable trial strategy could justify the trial counsel’s
conduct, counsel’s performance falls below an objective standard of
reasonableness as a matter of law, regardless of whether the record
adequately reflects the trial counsel’s subjective reason for acting as she
did.” Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App. 2005). It is
basic black letter law that the trial judge and the prosecutor are not allowed
to call attention to a defendant’s failure to testify, therefore, it must follow
that a defendant’s own trial counsel should in turn not clumsily highlight the
defendant’s failure to testify. Bird v. State, 527 S.W.2d 891, 893
(Tex.Crim.App. 1975).
Prejudice
The “prejudice” prong of Strickland requires this Court to determine
whether counsel’s objectively deficient conduct highlighted above was
sufficient to undermine its confidence in the verdict, that is, whether there is
a reasonable probability that, but for this objectively deficient conduct, the
result of the proceedings would have been different. Strickland v.
Washington, 466 U.S. 668, 694 (1984); Kyles v. Whitley, 514 U.S. 419, 430
(1995). The prejudice the Appellant must show is by less than a
preponderance of the evidence because “[t]he reasonable-probability
standard is not the same as, and should not be confused with, a requirement
that the Appellant prove by a preponderance of the evidence that but for
error things would have been different.” United States v. Dominguez
Benitez, 542 U.S. 74, 82 n. 9 (2004). In assessing prejudice, this Court is
obligated to consider the cumulative effect of the multiplicity of counsel’s
errors demonstrated in the record below. Strickland v. Washington, 466 U.S.
668, 690 (1984).
Regarding trial counsel’s failure to investigate Mr. Barton’s mental
health, there is a reasonable probability that if Mr. Barton’s mental health
was assessed, that the case would never have gone to trial, that Mr. Barton
could have raised the defense of insanity, or that Mr. Barton could have
properly assisted trial counsel with defending the case after regaining
competency; thus the result of the proceedings below would have been
different. Strickland v. Washington, 466 U.S. 668, 694 (1984).
With regard to trial counsel’s failure to convey the plea offer to Mr.
Barton, there is clearly a reasonable probability that the result of the
proceedings below would have been different, because Mr. Barton would
have entered into the plea agreement, and therefore would not have gone to
trial and received a life sentence. Id. at 694.
Lastly, regarding the fact that the jury was told that they were going to
hear from Mr. Barton during the punishment phase of trial, and then did not,
there is a reasonable probability that the result of the punishment
proceedings would have been different if this had not occurred. Id. at 694.
For, it cannot reasonably be argued that this action could be cured simply
from the instruction given by the trial court in the punishment charge; trial
counsel admitted to Mr. Barton’s egregious behavior in the cross
examination of the victim, and in closing statements, and the fact that the
jury anticipated during an entire overnight recess that they would hear some
sort of remorse or explanation from Mr. Barton the next morning, and then
did not, clearly only served to fuel the jury’s loathing of Mr. Barton. (4 RR
94); (5 RR 20); Id. at 694.
The present case presents in compelling terms “a breakdown in the
adversarial process that our system counts on to produce just results.” Id. at
696. “When a [reviewing] court is in grave doubt as to the harmlessness of
an error that affects substantial rights, it should grant relief.” O’Neal v.
McAninch, 513 U.S. 432, 445 (1995); see also Burnett v. State, 88 S.W.3d
633, 638 (Tex.Crim.App. 2002). (“In cases of grave doubt as to
harmlessness the [Appellant] must win.”). Because this Court must have
such grave doubt about whether the Appellant’s trial counsels’ multiple
instances of objectively deficient conduct contributed to Mr. Barton’s
conviction and punishment, it must grant Mr. Barton a new trial. O’Neal v.
McAninch, 513 U.S. 432, 445 (1995).
For these reasons Mr. Barton would respectfully request the Court to
hold that the cumulative effect of his trial counsel’s errors caused “a
breakdown in the adversarial process that our system counts on to produce
just results” sufficient “to undermine this Court’s confidence in the
outcome” of the Appellant’s trial. Strickland v. Washington, 466 U.S. 668,
696 (1984). Mr. Barton contends that if his trial counsel had discharged his
duty below, there is a reasonable probability the result of the proceedings
would have been different. Id. at 694.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Zane Barton, prays this
Honorable Court will reverse the judgment of conviction and or punishment
below, or in the alternative, remand the case to the trial court to determine
Mr. Barton's competency and/or sanity at the time of the commission of the
offense, and/ or to determine whether trial counsel conveyed the plea offer to
Mr. Barton. Further, Zane Barton prays that this Honorable Court will enter
any other relief appropriate under the facts and the law.
Respectfully Submitted,
/s/ Amanda Erwin __________________________________ Amanda Erwin The Erwin Law Firm, L.L.P.
109 East Hopkins Street, Suite 200 San Marcos, Texas 78666 Telephone: (512) 938-1800 Telecopier: (512) 938-1804 amanda@theerwinlawfirm.com Attorney for Appellant Zane Barton State Bar Number 24042936
CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 9.5, I certify that of April 22, 2015, a copy
of this motion was mailed via first class U.S. mail, to the following: Hays
County District Attorney’s Office, 712 Stagecoach Trail, Suite 2057, San
Marcos, Texas 78666.
/s/ Amanda Erwin _________________________________ Amanda Erwin
CERTIFICATE OF COMPLIANCE STATING NUMBER OF WORDS IN BRIEF
Pursuant to Tex. R. App. P. 9.4(i), Appellant certifies that this
Appellate Brief contains only 5,749 words, and is therefore compliant with
the maximum word limitation allowed by the Honorable Court.
/s/ Amanda Erwin _________________________________ Amanda Erwin