Court ofAppeals Cause Numbers 01-15-00484—CR, 01-15—00485-CR

TrialCourt Cause Numbers 1432555, 1432805

IN THE COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXASAT HOUSTON

Christian AveryNorris

Defendant,Appellant

VS.

State of Texas

Petitioner,Appellee

ON APPEAL FROM THE DISTRICT COURT

HARRIS COUNTY,TEXAS

230"‘ JUDICIAL DISTRICT

BRIEF OF APPELLANT

Syngman Stevens Jr

200 HWY 90-A Ste B

Richmond, Texas 77469

SBOT: 24043219

281-630-9421

281-344-0105

ORAL ARGUMENT WAIVED

ACCEPTED

01-15-00484-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

9/8/2015 3:30:00 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 9/8/2015 3:30:00 PM CHRISTOPHER A. PRINE Clerk
DESIGNATION OF PARTIES

APPELLANT..................................

..CHRISTIAN AVERYNORRIS

APPELLEE........................................

..THE STATEOF TEXAS

APPELLANT’S TRIALATTORNEY............TERRANCEGAISER

STATE’STRIALATTORNEY................

..ALAN OTTO

STATE’SATTORNEYON APPEAL........

..ALAN CURRY

DISTRICTATTORNEY........................

..DEVONANDERSON

APPELLANT’S ATTORNEYON APPEAL...SYNGMANSTEVENSJR

200 HWY 90-A STE B

RICHMOND, TEXAS 77469
TABLEOF CONTENTS

DESIGNATION OF PARTIES...........................................

..i

TABLEOF CONTENTS..................................................

..ii

TABLEOF AUTHORITIES.............................................

..iii

STATEMENTOF JURISDICTION.....................................

..Vi

STATEMENTOF ISSUES PRESENTEDFOR REVIEW..........

..Vi

STATEMENTOF CASE.................................................

..1

SUMMARY OF ARGUMENT...........................................

..4

ARGUMENT...............................................................

..4

PRAYERFOR RELIEF..................................................

14

CERTIFICATEOF SERVICE..........................................

..15
TABLEOF AUTHORITIES

ConstitutionalProvisions

U.S. Const. amend. VI

Tex. Const. art. 1 § 6

Tex. Const. art. 1 § 14

Statutes

TX. CRIM. PRO. Art 42.12

Cases

Boyd V. State, 811 S.W.2d 105 (Tex. Cri. App. 1991)

Craig V. State, 847 S.W.2d 434 (Tex.App.———E1 Paso 1993, no pet.)

Ex Parte Felton, 815 s.W.2d 733 (Tex.Crim. App. 1991)

Ex Parte Gallegos. 511 S.W.2d 510 (Tex.Cr.App.1974).

Ex Parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.. 1980)

Duffy, 607 S.W.2d at 513-516, 527

Glover V. United States, 531 US 198

Gonzalez V. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000)

Hernandez, V. State 988 S.W.2d 770 (1999)

MilburnV. State 16 S.W.3d 267 (2000)

Moore V. State 983 S.W.2D 15, 2 (TEX.APP. 1998)

iii
Pickens V. Lockhart, 714 F.2d 1455, 1467 (8th Cir. 1983)

Recer V. State 815 s.W.2d 730 (1991)

Robinsonv. State 16 S.W.3d 808 (Tex. Crim. App-2000)

Shanklin V. State 190 S.W.3d 154 (Tex.App.-Hoston[1stDist.] 2005)

Spriggs V. Collins, 993 F.2d 85 (5th Cir. 1993)

StricklandV. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984)

Thomas V. State, 550 S.W.2d 64, 68 (Tex.Cr.App.1977)

Ware V. State, 875 S.W.2d 432 (Tex.App.—Waco1194, pet. Refd).

WilliamsV. Taylor, 529 US 362 — Supreme Court 2000

Vela V. Estelle, 708 F.2d at 954

iv
STATEMENTOF JURISDICTION

This court has jurisdictionofthis appeal pursuant to Tex. Const. art. V

§6 as an appeal from the decision ofthe 23 0”‘ District Court, Harris County,

Texas.

STATEMENTOF ISSUES PRESENTEDFOR REVIEW

1. Whether defendant was afforded reasonablyeffective assistance of

counsel as proscribedby the sixthamendmentofthe United States

Constitution?
STATEMENTOF THE CASE

a. Course ofProceeding

On December 1, 2014 in cause numbers 1432555 and 1432805 the

defendant waived trial by jury and plead guilty without an agreed

recommendationto the trial court. On April29, 2015 during the defendant’s

punishment hearing, defense counsel asks the trial court judge for a

significant amount ofjailtime, although defendant is eligible for deferred

probation. The Defendant was sentenced to four years in the Institutional

Division ofthe TexasDepartment of Criminal Justice.

On May 6, 2015, Defendant fileda Notice ofAppeal ofthe

convictions and sentence rendered against him in trial court cause numbers

1432555 and 1432805 respectively.

b. Statement of Facts

On June 20, 2014 Defendant, Christian Avery Norris was indicted in

cause number 1432555 for the felony charge ofAssaultFamilyViolence 2nd

Offender. The indictmentpresented thatbefore the commission alleged in

cause number 1432555, the Defendant, on July 26, 2015, in the County

Criminal Court at Law no. 12, ofHays County, Texas in Cause No. 13-
0347CR, was convicted ofAssault, which was committed against a member

of the defendant s family.On June 23, 2014, Defendant was appointed

counsel and the trial court judge issued a no contactorder, prohibiting

Christian Norris from communicatingdirectly or indirectlywiththe victim.

On August 8, 2014 the defendant, Christian Avery Norris was indicted in

cause number 1432805 for the felony charge ofViolationofProtective

Order. On November7, 2014 at the comprehensive pretrial conferencethe

parties agreed on a trial date of December 1, 2014. At the comprehensive

pretrial conferencethe final plea bargain recommendationwas four years in

the TexasDepartment of Corrections institutional division or plea to the

judge without an agreed recommendation.R.R. 14 In both cause numbers

1432555 and 1432805 the defendants range ofpunishment was any term not

more than 10 years or less than2 years in the Institutional Division of the

TexasDepartment of Criminal Justice and in addition, a fine not to exceed

$10,000. On November11”‘ the Assistant District Attorney fileda Notice of

Intention To Use Evidence ofPrior Convictions and Extraneous Offenses.

The known prior convictions listed inside of the states motion included two

misdemeanor convictions. One convictionfor theftin cause number

1834802 in County Criminal Court At Law 5 Harris county Texasand one
conviction for AssaultFamilyMemberin cause number l2—0347CR in

County Criminal Court At Law 12 Hays County Texas.On December 1,

2014 the defendant fileda sworn Motion for Community Supervision that

defendant has neverbeen convicted of a felony in this or any other state, and

neverbeen placed on community supervision for a felony offense in Texas

or any other State. The Motion for Community Supervision also requested

the presidingjudge placethe defendant on community supervision. On

December 1, 2014 in cause numbers 1432555 and 1432805, the defendant,

waived trial by jury and plead guilty without an agreed recommendationto

the trial court. The cause numbers were continued to April29, 2015, and

after a hearing, the Defendant was sentenced to four years in the Institutional

Division of the TexasDepartment of Criminal Justice. On May 6, 2015,

Defendant fileda Notice ofAppeal ofthe convictions and sentence rendered

against him in these causes.
SUMMARY OF ARGUMENT

Defendant’s convictions for AssaultFamilyMemberand Violationof

a Protective Order violate the Defendants right to effective assistance of

counsel. The Court should find thatdefense counsel’s performance and

resulting prejudice to the defendant was so egregious as to bring the

outcome oftheproceeding into question. The Court should find thatbut for

defense counsel’s unprofessional errors, the result ofthe proceeding would

have been different. Thus, the Court should reverse this case and remand this

case to the trial court for a new punishment hearing.

ARGUMENT

1. AS A RESULT OF TRIAL COUNSEL’S PERFORMANCE,

DEFENDANT’S SENTENCESFOR ASSAULTFAMILY

MEMBER AND VIOLATION OF PROTECTIVEORDER ARE A

VIOLATION OF A THE DEFENDANT’S SIXTH AMENDMENT

RIGHT TO COUNSEL.

A. Standard ofreview

Althoughappellant did not raise his ineffective assistance of counsel

claim at trial, such claim may be raised for the first time on appeal when

there is a constitutional violation. The defendant need not object in the trial
to counsel’s ineffective representation to preserve the issue for appellate

review. Robinsonv. State 16 S.W.3d 808 (Tex. Crim. App—2000) Thus is

clearly apparent from the face ofthe record and no legitimate state interest is

served by the enforcement ofusual rules ofprocedural default. Gonzalez v.

State, 8 S.W.3d. 640, 643 (Tex.Crim.App 2000).

B. Defendant’s sentences were a violationof his SixthAmendmentRight to

Effective Assistance of Counsel

The SixthAmendmentRight to counsel includes a right to counsel at

sentencing. The right to effective assistance of counsel is an undisputed

feature ofthe SixthAmendmentright to counsel.

A defendant who wishes to prove thathe received ineffective assistance of

counsel must satisfy two requirements: first, the defendant must demonstrate

that counsels performance was unreasonableunder prevailingprofessional

norms and he must also demonstrate thatcounsels deficientperformance

resulted in prejudice. Stricklandv. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984)

Assuming Strickland left open the question ofwhether a defendant is

required to show prejudice from deficient attorney performance at noncapital

sentencing proceedings, we perceive no valid reasonwhy Stricklandcannot
apply, or why a different rule should apply,to noncapital sentencing

proceedings. Hernandez V. State 988 S.W. 2d 770 (1999) The Strickland

Standard applies in capital and non-capital cases. Boyd V. State, 811 S.W.2d

105 (Tex. Crim. App. 1991)

To determine whether counsels assistance was reasonably

effective during the punishment phase of the trial the representation must be

viewed in its totality. Ex Parte Duffy, 607 S.W.2d 507 (Tex.Cr.App..1980))

Each case must be reviewedbased upon its individual facts and

circumstances. Ex Parte Gallegos. 511 S.W.2d 510 (Tex.Cr.App.1974).

The defendant who is able to demonstrate that counsel’s performance

was deficientwill not prevail on an ineffective assistance claim unless he

can also demonstrate prejudice. The court in Strickland stated the defendant

must also show thatthere is a reasonableprobabilitythat, but for counsels

unprofessional errors, the result ofthe proceeding would have been

different. According to the court, a reasonableprobabilityis a probability

sufficient to undermine confidence in the outcome.

A judge, in the best interest ofjustice, the public, and the defendant,

after convictionor a plea of guilty or nolo contendere, may suspend the

imposition ofthe sentence and placethe defendant on community
supervision or impose a fine applicable to the offense and placethe

defendant on community supervision, this is often referred to as straight

probation. CCP Art. 42.12 § 3.

CCPP Art. 42.12 § 5(a) allows a judge following a plea ofguilty or

nolo contendere to find thatthe evidence substantiates the defendant’s guilt,

defer furtherproceedings withoutentering an adjudicationofguilty and

placethe defendant on community supervision. The purpose ofthe statute is

to allow the trial court the flexibilityto defer adjudicationfor deserving

defendants when in its opinion the best interest of society and the defend

willbe served. REED v. State, 644 S.W.2d 479 (Tex. Crim. App. 1983)

If we look to the proof offered at punishment to determine whether

Counsel failedto prove a defendant’s eligibility,the answer is in the

affirmative. Failureto offer evidence to prove eligibilityfor probation is

ineffective assistance of counsel San Roman V. State, 681 S.W.2d 872 (Tex.

App.~—El Paso 1984, pet. ref’(1)

Defense counsel asks the defendant, “[w]hat would you like the

Judge to do?” R.R. 39 To wit theDefendantresponds, “I would just ask the

Judge to be lenient withme.” R.R. 40 Defense Counsel passes the witness at

thispoint and asks defendant no further questions during thehearing
regarding probation. Defense counsel failedto elicit testimony for the court

thatthe Defendant was not a convicted felon and had neverbeen on a

straight or deferred probation. There was no question asked ofthe

defendant’s knowledge ofprobation conditions or ifhe would be able to

abide by the courts restrictions ifplacedon probation. Neitherdoes the

record reflect defendant’s desire for community supervision, or how a felony

convictionwould affect his future chances at employment and education.

Testimonythat a defendant has never “beenconvicted of any felonies

in this or any other state” is sufficientto prove his eligibilityfor probation

becauseit encompasses the factthathe has neverbeen finallyconvicted of a

felony and thathe has never been placedon felony probation. Mansfield v.

State, 306 S.W.3d 773 (Tex. Crim. App. 2010) An attorney is ineffective

where he fails to prove a defendant’s eligibilityfor probation where the facts

show thatthe fact finder would have considered it. Ware v. State, 875

S.W.2d 432 (Tex.App.-Waco1194, pet. Refd) Here in the instant case,

there is a failureto establish probation eligibility.

There is a constitutionalright to counsel at sentencing. Glover v.

United States, 531 US 198,203 (2001) The prosecutor and defense counsel

function as advocates during the sentencing proceeding so thatthe
sentencing authoritywill engage in a balanced and thorougheffort to

determine the right sentence withinthe range ofprescribedpenalties. The

sentencing process consists ofweighing mitigating and aggravating factors,

and making adjustmentsin the severity of the sentence consistent withthis

calculus. Vela V. Estelle, 708 F.2d at 954

In this case, appellant’s trial counsel presented no mitigating factors

for thejudge to balance against the aggravating factorspresented by the

State. Appellant’s trial counsel offered no evidence ofmitigating factors,

despite the availabilityof such mitigation evidence filedwiththe clerk. We

can read from the record thatin attendance at the punishment hearing was

appellants mother, and appellants counsel never called any witness or asked

any question ofappellant thatwould rebut the states argument ofjailtime.

Any evidence would have provided some counterweight to evidence of bad

character, which was in factreceived by thejudge during the punishment

hearing. The judge had no characterevidence to consider thatmay have

humanizedthe defendant and offset the State’s recommendationof four

years in prison.

The court should find thatcounsel’s lackofmitigation would have in

fact favorably influencedthejudge in assessmentofpunishment. Counsel’s
lackof focus at the punishment phase deprived appellant ofthe possibilityof

bringing out even a single mitigating factor.Mitigating evidence would have

been admissible. The judge could have considered it and might have been

influencedby it.

It is also a well settled that an attorney has a professional duty to

present all availableevidence and arguments to support the defense of his

client. Thomas v. State, 550 S.W.2d 64, 68 (Tex.Cr.App.1977)Ineffective

assistance of counsel has been found when defense counsel summarizesthe

evidence in a manner favorable to the State. Craig V. State, 847 S.W.2d 434

(Tex.App.——El Paso 1993, no pet.) A defense lawyer's obligations in

connectionwithsentencing, is to do what is legally and ethicallypermissible

to achievefor the client the most lenient sentence possible. The advantage of

making an argument for deferred probation in making a plea for leniency for

a defendant withno prior felony convictions should not be difficult to

recognize as a valid plea to the court where the State has asked the court for

four years incarceration and that four years incarceration has already been

rejected while serving months in custody. The record here reflects that

defense counsels suggests the opposite of leniencytowards his client. In the

is case where the punishment range is a betweentwo and ten years

10
incarceration, a defense counsels objective should be to secure a deferred

probation at sentencing taking into considerationthe time already spent

incarcerated by his client. In this case the client was deferred and straight

probation eligible withmore than 90 days served in Harris County Jail yet

appellant’s counsel filrthersthe States interests, arguing to the court, inter

alia:

I’m going to suggest to the Court that some time in jail is necessary

for Mr. Norris in order to — for the Court to impress on him the fact

thatwhen this Court tells you something,it means it. And I’m not

talkingabout a short term of countyjail. R.R. 48

If defense counsel is not talking about a short term of county jail,

reason brings the inference of a long term in jail. The court in Strickland

stated the defendant must also show thatthere is a reasonableprobability

that,but for counsels unprofessional errors, the result of the proceeding

would have been different. The possibilityof a different result could have

been bolstered by counsel focusing on probation eligibilityand advocating

for deferred probation ratherthanjailtime. Directly after defense counsels

plea to the court forjailtime, the court addresses theDefendant, inter alia:

Now, you know thatyou’re facingme in this court withtwo

felony offenses. And regardless ofwho starts it, you know you’re not

supposed to have contactwiththisperson. And I wouldn’t have found

out about it, but for thishearing right now. Does thatmean I can trust

you to be on probation, to follow my orders to make sure not another

11
person — whileyou’re on my probation withmy name thatallows you

walk free — willbe hurt, injured, scared, afraid or whatever?

And the answer to the question is can I trust you to be on

probation, to follow my orders. Just based on thishistory alone and

you’re not following my order, mine, to not have any contactwiththat

person, the answer is no.

So, I’m going to find you guiltyof bothofthese offenses. And

I’m going to assess your punishment in each oftheses cases at four

years in the TexasDepartment of criminal Justice Institutional

Division. R.R 50-51

The circumstances ofthe plea and the goal of defense counsel should

be to achievethe best possible outcome considering the circumstances given.

This record glaringlyreflects thattrial counsel failedto advance any form of

mitigation during thispunishment hearing, or in any other way make use of

mitigation evidence availableto him or call any witness availableto him. As

is so often the case in those situations where any defense, or for thatmatter

any viable defense, has not been raised, the circumstances may reflectthat

the attorney may not have been familiarwiththe case or, ifhe is, has not

adequately investigated the facts ofthe matter. Here, there is also a lackof

advocacy and advancing the defendant’s best interests. Viewed as a whole

and cumulative ofmitigation evidence presented originally,raised a

reasonableprobabilitythatthe result of the sentencing proceeding would

have been different ifcompetent counsel had presented and explained the

12
significance of all the availableevidence and made the proper argument to

the court advocating for a probated sentence. Trialcounsel never inquired

into the defendant’s probation eligibilityor desire to be placed on deferred

probation. The record is void of any testimony elicited for the defendant or

any availablewitness present in the courtroom through counsel any

mitigating factors thatmay have weighted against the overwhelming amount

of aggravating factors introduced to the Court throughthe victims testimony.

The record is clear thatdefense counsel asks the court for a prison sentence,

as does the State.

13
PRAYERFOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant prays thatthis

Honorable Court rule in favor ofAppellant and reverse and remand this case

to the trial court to determine which case should be vacated as a result of

ineffective assistance of counsel. Appellant prays thathis Court reverse the

convictions and render a judgment ofacquittal and remand this case for a

new punishment hearing and approve the appeal. Appellant prays for general

relief, and any reliefthatmay be granted by law or in equity.

Respectfully Submitted,

/

yngman Stevens Jr

Attorney for Appellant

14
CERTIFICATEOF SERVICE

I, Syngman Stevens, Jr, do hereby certify that a true and correct copy

ofthe foregoing Appellant’s Briefwas delivered to opposing counsel at the

time of the filingon the 8”’ day ofSeptember2015, by e—file transmission

pursuant to local practice.Further, I certify that a copy ofthe foregoing

Appellant’s Briefwas, thisday mailedto Appellant.

RespectfilllySubmitted,

S

:-N.

.

yngman Stevens Jr

Attorney for Appellant

15
CERTIFICATEOF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4, I hereby certify thatthisAppellate

Briefcontains less than4,500 words. This is a computer-generated

document created in Microsoft Word, using 14-point typeface for all text,

except for footnotes, which are in 12-point typeface. In making this

certificate of compliance, I am relying on the word count provided by the

software used to prepare the document.

Respectfully Submitted,

”“f,;§I.'/

S man Stevens Jr

Attorney for Appellant