i 

PD NO. ________ 

IN THE TEXAS COURT OF CRIMINAL APPEALS 

AT AUSTIN 

................................................................................................... 

NO. 14-16-00843-CR 

IN THE COURT OF APPEALS FOR THE 

FOURTEENTH DISTRICT OF TEXAS 

AT HOUSTON 

................................................................................................... 

TRIAL COURT NO. 1462169 

IN THE 248TH DISTRICT COURT 

OF HARRIS COUNTY, TEXAS 

................................................................................................... 

DENNIS ANTHONY WILLIAMS, APPELLANT 

V. 

THE STATE OF TEXAS, APPELLEE 

................................................................................................... 

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW 

................................................................................................... 

 NICOLE DEBORDE 

Attorney for Appellant 

TBA No. 00787344 

712 Main St, Suite 2400 

Houston, Texas 77002 

Telephone: (713) 526-6300 

Fax: (713) 228-0034 

Email: Nicole@debordelawfirm.com 

PD-0268-18

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 3/9/2018 3:39 PM

Accepted 3/9/2018 4:14 PM

DEANA WILLIAMSON

CLERK

 FILED COURT OF CRIMINAL APPEALS 3/9/2018 DEANA WILLIAMSON, CLERK 
ii 

IDENTITY OF PARTIES AND COUNSEL 

 Pursuant to TEX. R. APP. R. 68.4(a), the following is a list of all parties to 

the trial court’s judgment as well as the names and addresses of trial and appellate 

counsel. 

Appellant: Dennis Anthony Williams 

 TDCJ Number 02095920 

 Huntsville Unit 

 815 12th Street 

 Huntsville, TX 77348 

Presiding Judge: Hon. Regan Clark 

 248th Judicial District Court 

 Houston, TX 77002 

Trial Prosecutor Mr. Patrick Stayton 

 Mrs. Katie Warren 

 Assistant District Attorneys 

 Harris County District Attorney’s Office 

1201 Franklin, Suite 600 

 Houston, Texas 77002 

Defense Counsel: Mr. George Tennant 

Attorney at Law 

723 Main Street 

Houston, Texas 77002 

State’s Appellate Counsel: Travis Dunlap 

 Harris County District Attorney 

 1201 Franklin 

 Houston, Texas 77002 

Appellant’s Counsel: Nicole DeBorde 

 Bires, Schaffer and DeBorde 

712 Main St., Suite 2400 

Houston, Texas 77002 
iii 

STATEMENT REGARDING ORAL ARGUMENT 

 Pursuant to TEX. R. APP. PROC. 68.4(c), appellant does not request oral 

argument. 
iv 

TABLE OF CONTENTS 

Identity Of Parties And Counsel ............................................................................... ii

Statement Regarding Oral Argument ...................................................................... iii

Index Of Authorities .................................................................................................. v

Statement Of The Case .............................................................................................. 1

Statement Of Procedural History ............................................................................... 5

Question For Review Number One: .......................................................................... 6

If A Lawyer In Advance Of A Punishment Hearing Fails 

To Contact Any Witnesses, Fails To Provide Any 

Information To The Court And, Besides Making A 

Obviously False Argument, Provides No Other Form Of 

Advocacy, Is The Deficient Representation 

“Presumptively Unreliable”? ................................................................. 6

Argument.................................................................................................................... 6

Prayer For Relief ........................................................................................................ 8

Certificate Of Compliance ....................................................................................... 10

Certificate Of Service............................................................................................... 10

Appendix .................................................................................................................. 11
v 

INDEX OF AUTHORITIES 

Cases

Florida v. Nixon, 

 542 U.S. 175 (2004) .......................................................................................... 7 

Head v. State, 

 299 S.W.3d 414 (Tex.App.—Houston [14th Dist.] 2009, pet. ref’d) ............... 8 

Hernandez v. State, 

 726 S.W.2d 53 (Tex. Crim. App. 1986). ......................................................... 7 

Medina v. State, 

 2017 WL 4410269 (Tex. Crim. App. 2017) ..................................................8, 9 

Powell v. Alabama, 

 287 U.S. 45 (1932) ........................................................................................... 6 

State v. Frias, 

 511 S.W.3d 797 (Tex.App—El Paso 2016, pet. ref’d) ..................................... 8 

Strickland v. Washington, 

 446 U.S. 668 (1984) ......................................................................................5, 7 

United States v. Cronic, 

 466 U.S. 648 (1984)......................................................................................... 7 

Statutes

TEX. CONST. ART. I, §10 ................................................................................. 6 

TEX. R. APP. PROC. 66.3(c) .............................................................................. 9 

TEX. R. APP. PROC. 68.4(c) ............................................................................ iii 

TEX. R. APP. PROC. 78.1(d ............................................................................... 9 

TEX. R. APP. R. 68.4(a ...................................................................................... ii 

U.S. CONST. amends. VI and XIV ....................................................................... 6 
1 

TO THE COURT OF CRIMINAL APPEALS: 

STATEMENT OF THE CASE 

 Appellant was charged and ultimately convicted of penetrating his stepdaughter’s sexual organ with his finger. (C.R. 10). After setting his case for trial 

and after wavering while a jury was in the hallway, Appellant agreed to plead 

guilty to the court in exchange for a pre-sentence investigation with an open 

punishment range capped at twenty-five years. (C.R. 221; R.R. Vol. 1 at 114-15). 

Almost immediately after entering his plea, Appellant regretted his decision. He 

told the PSI writer he was not guilty and wanted to withdraw his plea. (State Ex. 

2). He also filed a pro se motion to withdraw his plea and remove his attorney, 

George Tennant, from the case. (R.R. Vol. 1 at 154-5; C.R. 208-12). 

Tennant likewise moved to withdraw himself from the case just prior to 

beginning Appellant’s punishment hearing, claiming it was “virtually impossible” 

to continue to represent Appellant. (State Ex. 3 at 6). Tennant’s co-counsel, Dana 

Bradberry, concurred telling the court, “. . .it’s in no one’s best interest for us to 

continue on this case.” (State Ex. 3 at 6-7). 

During the same hearing, however, Appellant stated he no longer wished to 

withdraw his plea and instead wanted to continue his punishment hearing with 

Tennant and Bradberry as his attorneys. (State Ex. 3 at 10). As a result, the trial 

court summarily denied both Appellant’s and Tennant’s motions to withdraw from 
2 

the case as well as Appellant’s motion to withdraw his guilty plea. (State Ex. 3 at 

11). 

Proceeding immediately into Appellant’s punishment hearing, neither side 

presented any witnesses or offered any evidence besides the PSI report. (State Ex. 

3 at 13). Tennant then requested and made a “brief argument.” (State Ex. 3 at 13). 

In this argument Tennant suggested Appellant deserved a sentence where he could 

work in the community, even though community supervision was not a part of the 

punishment range. (State Ex. 3 at 15). Further, Tennant strangely asserted 

Appellant deserved a lenient sentence because, despite Appellant’s motion to 

withdraw his guilty plea, despite Appellant’s claim of innocence in the PSI report, 

and despite there being no indication in the record of an acceptance of 

responsibility, Appellant had “owned up” and “taken ownership” of the crime. 

(State Ex. 3 at 14). Further undermining any acceptance of responsibility was 

Tennant’s additional argument that Appellant’s actions were really the result of the 

child complainant who “manipulated” Appellant into “petting and foreplay.” (State 

Ex. 3 at 14-16). After skeptical questioning from the court, Tennant explained 

Appellant, a fifty year old man, “should have been warned about the potential 

powder keg he was walking into by the (complainant’s) family” because Appellant 

“wasn’t equipped to deal” with a 10-12 year old girl’s sexual advances. (State Ex. 

3 at 16). The trial court responded flatly that it “doesn’t sound like. . . he’s taken 
3 

any responsibility whatsoever for his actions.” (State Ex. 3 at 16). The trial court 

then sentenced Appellant to the maximum sentence of 25 years and explained, 

“what I read in this Presentence Investigation Report is a man that still has a very 

defiant attitude, which belies the argument from counsel that he has some remorse 

for what he did.” (State Ex. 3 at 20). 

 Appellant timely gave notice of intent to appeal and filed a Motion for New 

Trial. In Appellant’s hearing on the Motion for New Trial, several witnesses 

testified to Appellant’s good character and claimed that, if they had only been 

informed, they would have appeared to testify at Appellant’s punishment hearing. 

(R.R. Vol. 1 at 11-91). These witnesses included Appellant’s sisters, his brotherin-law, his ex-wife, and his former step-daughter. 

 Tennant also testified at Appellant’s hearing on his Motion for New Trial 

and acknowledged several fundamental failures. He acknowledged he failed to 

contact any of Appellant’s potential punishment witnesses. (R.R. Vol. 1 at 109). 

He acknowledged he did not attend, and had no explanation for not attending, 

Appellant’s PSI interview in which Appellant denied committing the charged 

offense. (R.R. Vol. 1 at 107). Tennant acknowledged not making any contribution 

to the PSI report—other than, curiously, “the defendant’s mindset.” (R.R. Vol. 1 at 

146, 152). The only information Tennant could claim credit for “preparing for the 

court” was that Appellant was a productive member of society with no criminal 
4 

history who was ready to take responsibility for his actions. (R.R. Vol. 1 at 107). 

Tennant claimed to have “prepared” this information by raising it through closing 

argument, though Tennant also agreed that Appellant himself had submitted all of 

this same information directly to the PSI writer. (R.R. Vol. 1 at 107, 110). 

Tennant conceded that, at most, he had visited Appellant in jail one time between 

Appellant’s plea and sentencing—though Tennant had no specific recollection of 

visiting Appellant at all. (R.R. Vol. 1 at 109-110). And Tennant was unsure 

whether he read the PSI report before arriving to court on the day of Appellant’s 

punishment hearing. (R.R. Vol. 1 at 111). 

Tennant explained he had no legal strategy for most of these failures and did 

not seem to understand his failures rendered his representation deficient. The only 

semblance of a strategy Tennant could claim pertained to Tennant’s failure to 

contact any witnesses on Appellant’s behalf. On this point Tennant claimed 

Appellant instructed him not to contact any family members because Appellant 

believed they had “suffered enough.” (R.R. Vol. 1 at 110). This claim, however, 

could not be verified through any documentation in Tennant’s trial file and 

Tennant refused to produce his file—despite Appellant’s repeated requests. (R.R. 

Vol. 1 at 92-102). 

The trial court, after hearing from all the witnesses in the hearing on 

Appellant’s Motion for New Trial, seemed to assume Tennant’s representation was 
5 

below the objective standard set forth in Strickland v. Washington. But the trial 

court did not make a specific finding that Tennant was objectively deficient in his 

performance. (R.R. Vol. 1 at 188-89). Rather, the court found Appellant’s 

outcome was not affected by Tennant’s failures and that the court would still have 

sentenced Appellant to 25 years in prison regardless of any purported 

ineffectiveness. (R.R. Vol. 1 at 189). 

STATEMENT OF PROCEDURAL HISTORY 

 On March 24, 2015, a warrant for Aggravated Sexual Assault of Child was 

issued for Appellant alleging he penetrated the complainant with his finger on 

December 18, 2014. (C.R. 10). On August 15, 2016, Appellant entered a plea of 

guilty with a sentencing cap of twenty-five years. (C.R. 189-90). On October 14, 

2016, the trial court conducted a pre-sentence investigation hearing and sentenced 

Appellant to twenty-five years in prison. (C.R. 221). Appellant timely filed a 

motion for new trial on November 11, 2016. (C.R. 246). In the motion, Appellant 

alleged he received ineffective assistance of counsel during both the 

guilt/innocence phase and punishment phase of trial. (C.R. 246-70). The trial 

court held a hearing and overruled this motion on December 21, 2016. (R.R. Vol. 

11

). In that hearing, Appellant opted not to pursue any allegations regarding his 

 

1

 The reporter’s record contains two different volumes entitled “Volume 1”. One is the plea 

colloquy, the other is the motion for new trial hearing. In this brief, “Volume 1” will refer 

exclusively to the record of Appellant’s motion for new trial hearing held on December 21, 2016. 
6 

trial counsel’s guilt/innocence ineffectiveness. (R.R. Vol. 1 at 8). Instead, 

Appellant sought to exclusively raise his trial counsel’s ineffectiveness during the 

punishment phase of trial. (R.R. Vol. 1 at 8). The trial court denied Appellant’s 

motion for new trial. (R.R. Vol. 1 at 190). Appellant gave timely notice of his 

intent to appeal and the trial court’s certification of Appellant’s right of appeal 

certifies Appellant has received the trial court’s permission to appeal even though 

Appellant received a plea bargain. (C.R. 224, 226). 

 On February 8, 2018, the Fourteenth Court of Appeals affirmed the trial 

court’s sentence. Appellant now timely brings this petition for discretionary 

review. 

QUESTION FOR REVIEW NUMBER ONE: 

If A Lawyer in Advance of a Punishment Hearing Fails 

to Contact Any Witnesses, Fails to Provide Any 

Information to the Court and, Besides Making a 

Obviously False Argument, Provides No Other Form of 

Advocacy, is the Deficient Representation 

“Presumptively Unreliable”? 

ARGUMENT 

A criminal defendant has the right to the effective assistance of counsel. U.S. 

CONST. amends. VI and XIV; TEX. CONST. art. I, §10; Powell v. Alabama, 287 U.S. 45 

(1932). Counsel's assistance is ineffective if it falls below an objective standard of 

reasonableness and prejudices the defense. Strickland v. Washington, 466 U.S. 668, 687 

(1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The United 
7 

States Supreme Court, in Strickland, provided a two-part test for ineffectiveness by 

evaluating whether counsel’s performance: (I) was deficient and (2) caused 

prejudice. 466 U.S. 668, 687 (1984). 

However, in Florida v. Nixon, the U.S. Supreme Court described a narrow 

exception to Strickland's holding where the second prong requiring a showing of 

prejudice can be presumed. 542 U.S. 175 (2004); (citing United States v. Cronic, 

466 U.S. 648, 656-57 (1984); Strickland v. Washington, 466 U.S. 668, 686 

(1984)). "[I]f counsel entirely fails to subject the prosecution's case to 

meaningful adversarial testing, then there has been a denial of Sixth 

Amendment rights that makes the adversarial process itself presumptively 

unreliable." Nixon, 466 U.S. at 659. 

The Fourteenth Court of Appeals held that Appellant’s trial counsel did not 

“entirely fail to subject the prosecution’s case to any meaningful adversarial 

testing.” Williams v. State, page 14 (citing State v. Frias, 511 S.W.3d 797, 810 

(Tex. App—El Paso 2016, pet. ref’d); Head v. State, 299 S.W.3d 414, 443 (Tex. 

App.—Houston [14th Dist]. 2009, pet. ref’d)). The Court of Appeals concluded 

trial counsel’s negotiation for a sentencing cap and pursuit of a dismissal of an 

additional charge, along with the fact that counsel “advocated for appellant in his 

argument to the trial court and objected to a portion of the State’s argument” was 

sufficient to show counsel had not “entirely failed.” Williams v. State, page 14. 
8 

Appellant would note, however, the Court of Appeals opinion omits mention 

of Medina v. State, which reversed for a new punishment hearing and held the 

failure “to present any punishment phase case” deprived the accused “of his right 

to a fair trial.” 2017 WL 4410269 (Tex. Crim. App. 2017). Appellant’s case, like 

Medina, involves a defense counsel who totally failed to “present any punishment 

phase case.” Id. As a result, Medina, and not Frias or Head, should be controlling. 

 This case is therefore appropriate for discretionary review because the Court 

of Appeals has decided an important question of state and federal law in a way that 

conflicts with the applicable decision of the Court of Criminal Appeals. TEX. R. 

APP. PROC. 66.3(c). 

PRAYER FOR RELIEF 

 Wherefore, appellant prays that this Honorable Court grant appellant’s 

petition for discretionary review; that this cause be set for submission to the Court 

of Criminal Appeals; and that, after submission, this Court reverse the judgment of 

the Court of Appeals, and remand the case to the trial court for a new punishment 

hearing. TEX. R. APP. PROC. 78.1(d). 
9 

Respectfully submitted, 

/s/ Nicole DeBorde 

TBA No. 00787344 

712 Main St, Suite 2400 

Houston, Texas 77002 

Telephone: (713) 526-6300 

Fax: (713) 228-0034 

Email: Nicole@debordelawfirm.com 

 Counsel for Appellant, 

 DENNIS WILLIAMS 
10 

CERTIFICATE OF COMPLIANCE 

The word count of the countable portions of this computer-generated 

document specified by Rule of Appellate Procedure 9.4(i), as shown by the 

representation provided by the word-processing program that was used to create 

the document, is 2420 words. This document complies with the typeface 

requirements of rule 9.4(e), as it is printed in a conventional 14-point typeface with 

footnotes in 12-point typeface. 

 /s/ Nicole DeBorde 

 NICOLE DEBORDE 

CERTIFICATE OF SERVICE 

 I hereby certify that a true copy of Appellant’s petition for discretionary 

review was served via e-mail delivery through eFile.TXCourts.gov on March 9, 

2018 to the following persons: 

Kim Ogg 

District Attorney 

Appellate Division 

Harris County District Attorney’s Office 

1201 Franklin 

Houston, Texas 77002 

State Prosecuting Attorney 

P.O. Box 12405 

Austin, Texas 78711 

 /s/ Nicole DeBorde 

 NICOLE DEBORDE 
11 

APPENDIX 

Opinion of February 8, 2018.