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 WIL LIAMS, 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

CLERKii IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. R. 68. 4(a), the following is a list o f all parties to the trial court’s judgment as we ll as the names and addresses o f trial and appellate

counsel. Appellant: Dennis Anthony Williams TDCJ Number 02095920 Huntsv ille Unit 815 12th Street Huntsv ille, 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 Couns el: 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 77002iii STATEMENT REGARDING ORAL ARGUMENT Pursuant to TEX. R. APP. PROC. 68.4(c), appellant does not req uest oral argument.iv TABLE OF CONTENTS Identity Of Parties And Counsel ............................... ................................................ ii Statement Regarding Oral Argument ............................. ......................................... iii Index Of Aut horities .......................................... ........................................................ v Statement Of The Case ......................................... ..................................................... 1 Statement Of Pro cedural 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 ...................................................... ............................................................ 11v 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. PRO C. 66.3(c) .................................... .......................................... 9 TEX. R. APP. PRO C. 68.4(c) .................................... ........................................ iii TEX. R. APP. PRO C. 78.1(d ..................................... .......................................... 9 TEX. R. APP. R . 68.4(a ........................................ .............................................. ii U.S. C ONST . amends. VI and XIV .......................................... ............................. 61 TO THE COURT OF CRI MINAL APPEALS:

STATEMENT OF THE CASE Appellant was charged and ultimat ely convicted of penetrating his stepdaughter’s sexual organ with his finger. (C.R. 10). After set ting his case for trial and after wavering while a jury was in the hallway, Appellant a greed to plead guilty to the court in exchange for a pre-sentence investigatio n with an open punishment range capped at twent y-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 hi s plea. (State Ex. 2). He also filed a pro se motion to withdraw his plea and rem ove 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 p rior to beginning Appellant’s punishment h earing, claiming it was “virt ually impossible” to continue to represent Appellant. (State Ex. 3 at 6). Tennan t’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 Appe llant’s and Tennant’s motions t o withdraw from2 the case as well as Appellant’s motion to withdraw his guilty p lea. (State Ex. 3 at 11). Proceeding immediately into Appellant’s punishment hearing, nei ther side presented any witnesses or offered any evidence besides the PSI report. (State Ex. 3 at 13). Tennant then request ed and made a “brief argument.” (State Ex. 3 at 13). In this argument Tennant suggested Appellant deserved a sentenc e where he could work in the community, even thoug h community supervision was no t a part of the punishment range. (State Ex. 3 at 15). Further, Tennant strang ely asserted Appellant deserved a lenient se ntence because, despite Appellan t’s motion to withdraw his guilty plea, despite Appellant’s claim of innocenc e in the PSI report, and despite there being no indication in the record of an accep tance of responsibility, Appellant had “owned up” and “taken ownership” of the crime. (State Ex. 3 at 14). Further undermining any acceptance of res ponsibility was Tennant’s additional argument that Appellant’s actions were rea lly the result of the child complainant who “manipulated” Appellant into “petting and foreplay.” (State Ex. 3 at 14-16). After skeptic al questioning from the court, T ennant 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” b ecause Appellant “wasn’t equipped to deal” with a 10-12 year old girl’s sexual a dvances. (State Ex. 3 at 16). The trial court respon ded flatly that it “doesn’t sou nd like. . . he’s taken3 any responsibility whatsoever for his actions.” (State Ex. 3 at 16). The trial court then sentenced Appellant to the maximum sentence of 25 years an d 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 h e 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, sev eral witnesses testified to Appellant’s good char acter and claimed that, if th ey had only been informed, they would have appeared to testify at Appellant’s pu nishment hearing. (R.R. Vol. 1 at 11-91). These w itnesses included Appellant’s s isters, his brotherin-law, his ex-wife, and his former step-daughter. Tennant also testified at Appellant’s hearing on his Motion fo r New Trial and acknowledged severa l fundamental failu res. 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 n ot attending, Appellant’s PSI interview in which Appellant denied committing the charged offense. (R.R. Vol. 1 at 107). Tennant acknowledged not makin g any contribution to the PSI report—other than, cu riously, “the defendant’s minds et.” (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 wi th no criminal4 history who was ready to take responsibility for his actions. (R.R. Vol. 1 at 107). Tennant claimed to have “prepar ed” 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 jai l 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 Tenn ant was unsure whether he read the PSI report be fore arriving to court on the day of Appellant’s punishment hearing. (R. R. Vol. 1 at 111). Tennant explained he had no lega l strategy for most of these fa ilures and did

not seem to understand his failur es rendered his representation deficient. The only semblance of a strategy Tennant could claim pertained to Tennan t’s failure to contact any witnesses on Appellant’s behalf. On this point Ten nant claimed Appellant instructed him not to contact any family members beca use Appellant believed they had “suffered enoug h.” (R.R. Vol. 1 at 110). Thi s claim, however, could not be verified through any documentation in Tennant’s tr ial file and Tennant refused to produce his file—despite Appellant’s repeate d requests. (R.R. Vol. 1 at 92-102). The trial court, after hearing from all the witnesses in the he aring on Appellant’s Motion for New Trial , seemed to assume Tennant’s re presentation was5 below the objective standard set forth in Strickland v. Washington. But the trial court did not make a specific finding that Tennant was objectiv ely 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 cou rt would still have sentenced Appellant to 25 years in prison regardless of any pur ported 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 wit h his finger on December 18, 2014. (C.R. 10). On August 15, 2016, Appellant e ntered a plea of guilty with a sentencing cap of twenty-five years. (C.R. 189-9 0). On October 14, 2016, the trial court conducted a pre-sentence investigation he aring and sentenced Appellant to twenty-five years i n prison. (C.R. 221). Appellan t 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 bo th the guilt/innocence phase and punishment phase of trial. (C.R. 246 -70). The trial court held a hearing and overrule d this motion on December 21, 2016. (R.R. Vol.

1 1 ). In that hearing, Appellant opt ed not to pursue any allegatio ns regarding his

1 The reporter’s record contains two different volumes entitled “Volume 1”. One is the plea colloquy, the other is the moti on for new trial hearing. In th is brief, “Volume 1” will refer exclusively to the record of A ppellant’s motion for new trial h earing held on December 21, 2016.6 trial counsel’s guilt/innocence ineffectiveness. (R.R. Vol. 1 a t 8). Instead, Appellant sought to exclusively ra ise his trial counsel’s ineff ectiveness during the punishment phase of trial. (R.R. Vol. 1 at 8). The trial cour t denied Appellant’s motion for new trial. (R.R. Vol. 1 at 190). Appellant gave ti mely notice of his intent to appeal and the trial court’s certification of Appella nt’s right of appeal certifies Appellant has received the trial court’s permission t o appeal even though Appellant received a plea ba rgain. (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 fo r 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 ri ght to the effective assistance of counsel. U.S.

C ONST . amends. VI and XIV; T EX

. C ONST . 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 United7 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 cou nsel did not “entirely fail to subject the prosecution’s case to any meaning ful 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 Appe als 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 St ate’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 omi ts mention

of Medina v. State , which reversed for a new punishment hearing and held the failure “to present any punishment phase case” deprived the acc used “of his right

to a fair trial.” 2017 WL 44102 69 (Tex. Crim. App. 2017). App ellant’s case, like Medina, involves a defense counsel who totally failed to “present any p unishment phase case.” Id. As a result, Medina, and not Frias or Head , should be controlling. This case is therefore appropriate for discretionary review be cause the Court of Appeals has decided an important question of state and feder al 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 tha t this Honorable Court grant app ellant’s petition for discretionary review; that this cause be set for s ubmission to the Court of Criminal Appeals; and that, after submission, this Court rev erse the judgment of the Court of Appeals, and remand the case to the trial court fo r a new punishment hearing. TEX. R. AP P. 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 WILLIAMS10 CERTIFICATE OF COMPLIANCE The word count of the countable portions of this computer-gener ated document specified by Rule of Appellate Procedure 9.4(i), as sh own by the representation provided by the word-processing program that was used to create the document, is 2420 words. This document complies with the ty peface 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 de livery through eFile.TXCourts.go v 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 DEBORDE11 APPENDIX

Opinion of February 8, 2018.