1 NO. 24442

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS DANNY CALAMACO , PETITIONER
V. THE STATE OF TEXAS , RESPONDENT

PETITION FOR DISCRETIONARY REVIEW

NO. 11

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- CR COURT OF APPEALS FOR THE 11TH DISTRICT OF TEXAS

AT EASTLAND

On appeal fro m Cause Number 24442

- A In the 42nd District Court of Taylor County, Texas Honorable John W. Weeks, Judge Presiding

_______________________________________________________ Paul W. Hanneman James Eidson Attorney for Petitioner District Attorne y Taylor County SBN: 08925500 300 Oak Street 1305 Lamar Street Abilene, Texas 79602 Sweetwater, Texas 79556 325

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- Fax 325

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– Fax pwhlawoffice@gmail.com2

Lisa McMinn 11 th Court of Appeals Clerk State Prosecuting Attorney Sherry Williamson P.O. Box 13046 P.O. Box 271 Austin, Texas 78711 Eastland, Texas 76448

ORAL ARGUMENT REQUES TED TABLE OF CONTENTS
PAGE INDEX OF AUTHORITIES .................................................... 3 STATEMENT REGARDING ORAL ARGUMENT ....................... 4 STATEMENT OF THE CASE ................................................ 4 STATEMENT OF PROCEDURAL HISTORY ............................ 5 GROUND S FOR REVIEW ...................................................... 5,6 STATEMENT OF FACTS ...................................................... 7 ARGUMEN TS AND AUTHORITIES ....................................

. 9,14,16 PRAYER FOR RELIEF ......................................................... 23 CERTIFICATE OF SERVICE ...

............................................... 24
APPENDIX

......... ................................................... .............. 263 INDEX OF AUTHORITIES CASES Davis v. State of Alaska ; 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (Feb. 27, 1974 Supreme Court of United States ) ......

.... ........................... 19 United States v. Gonzales

- Lopez ; 548 U.S. 14 0, 126 S. Ct. 2557, 165 L.Ed.2d 409 (June 26, 2006 Supreme Court of United States)

............... 22 Faretta v. State of California ; 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (June 30, 1975)......................................................

...... 9,10,12,14,20 Gobert v. Court of Criminal Appeals o f Texas ; 717 S.W.2d 21 ( Tex.Crim.App. 1986

)

............................................................ ... 20,21 Davis v. State of Texas ; 228 S.W.3d 917 ( Tex.Crim.App.2007 )

........... .... 22 Williams v. State of Texas ; 252 S.W.3d 353 (Tex.Crim.App.2008)

.. 10,14,22 Johnson v. United States ; 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (May 12, 1997 Supreme Court of United State)........................

.... . . 19,13 Cronic v. United States ; 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (Supreme Court of the United States May 1984).....................

.......... . 19 Medley v. The State of T exas ; 47 S.W.3 d 17 (Tex.App.

– Amarillo 2000). 19 Arizona v. Fulminante ;499 U.S. 279, 111 S.Ct.1246, 113 L.Ed.2d 302

. 19,22 Adams v. United States ex rel. McCann ; 317 U.S. at 279, 63 S.Ct., at 242

. 9 Powell v. State ; 632 S.W.2d 354, 355 (Tex. Crim. App 1582)

...... . ... . 10,20 Lewis v. State ; 2014 WL 491746 (Tex. App.

– Fort Worth Feb. 6, 2014) (mem. Op., not designated for publication), pet. granted, (Tex. Crim App. Sept. 17, 2014) (No. PD

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- 14)

...... ............................................. 16 Calamaco v. State , No. 11

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- CR (Tex. Ap p. Eastland 2015)

................................................................... 5,6,8,13,16,18,21 Johnson v. Zerbst

, 304 U.S. at 464

- 465. 58 S.Ct., at 1023

... ................. 9 Vasquez v. Hillery

, 474 U.S. 254 106 S.Ct. 617, 818 L.Ed.2d 598 (1986)

. 19 Mckaskle v. Wiggins , 465 U.S. 168, 183

- 84, 104 S.Ct. 9 44, 953

- 54, 79 L.Ed.2d 122 (1984)

...................................................................... 19 Heredia v. State , 528 S.W.2d 847 (Tex. Crim. App. 1975)

............... 20,21 Sullivan v. Louisiana, 508 U.S. 275, 282

.......................................... 22

RULES AND STATUTORY PROVISIONS TEX.R.App.Pro.66, et seq.

.................. .................................... ...... 4 TEX.CODE.CRIM.PROC.Art 1.051 ..........................................

...... 44 STATEMENT REGARDING ORAL ARGUMENT
In the event this petition is g ranted, the Petitioner requests oral argument. Argument would assist the Court because resolution of the grounds f or review depends upon a detailed exploration of the facts of the case. Further, oral argument would provide this Court with an opportunity to question the parties regarding their positions. Appellant has raised important questions of first impression in this Court and believes that oral argument would help clarify the issues presented in his petition for discretionary review. Therefore, he respectfully requests oral argument.

TO THE HONORABLE JUSTICES OF T HE COURT OF CRIMINAL APPEALS:

COMES NOW , DAN NY CALAMACO , Appellant in this cause, by and through his attorney of record, Paul W. Hanneman , and , pursuant to the provisions of TEX.R.App.Pro.66 , et seq. , moves this Court to grant discretionary review, and in support will show as follows.

STATEMENT OF THE CASE5

Appellant was indicted in Cause No. 24,442

- A for Murder, with a deadly weapon allegation and enhanced in a second paragraph with three prior felony convictions (CR, Vol. 1, 7; 8). On January 24, 2013 the jury found Appellant guilty (CR, Vol. 1, p. 177) and the Court assessed punishment at Life confinement in the State penitentiary (CR Vol. 1, p 184; RR vol. 11, p. 9). Appellant gave timely notice of appeal on February 22, 2013 (CR Vol. 1, p. 194) and also filed a Motion for New Trial (CR Vol. 1, p. 189

- 193) which, after a hearing was overruled on April 05, 2013 (CR Vol. 1, p. 204; RR Vol. 12, p. 45).

STATEMENT OF PROCEDURAL HISTORY

The conviction was affirmed in an opinion designated for publication by the 11th District Court of Appeal

. Calamac o v. State , No. 11

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- CR (Tex. App. Eastland 2015), delivered April 09, 2015. Appellant requested an extension of time to file a PDR, which was granted. This petition is due on June 10, 2015, and therefore, it is timely filed.

GROUND FOR REVIEW ONE6

The Court of Appeals e rred when it found that Appellant was properly admonished regarding his waiver of counsel and granted Appellant’s waiver of counsel . RR Vol. 7 , pp. 8

- 16, 60

. Calamaco v. State No. 11

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- CR, 11th Court of Appeals April 9, 2015, at page 7.

GROUND FOR REVIEW TWO

The Court of Appeals e rred when it found that Appellant entered a knowing , intelligent waiver of counsel. RR Vol. 7, pp. 8

- 16, 60. Calamaco v. State No. 11

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- CR, 11th Court of Appeals April 9, 2015, at page 7.

G ROUND FOR REVIEW THREE

The Co urt of Appeals e rred when, although it correctly found that the trial court erred by depriving Appellant of counsel during voir dire , it then incorrectly found the error to be non

- structural error and further erred by applyin g a harm analysis to the error. RR Vol. 7, pp. 8

- 16, 60. Calamaco v. State No. 11

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- CR, 11th Court of Appeals April 9, 2015, at page 9.

STATEMENT OF FACTS7

Prior to Voir Dire in his trial on the charge of Murder in this cause , immediately after his plea of “Not Guilty” was entered, Appellant , who at the time was represented by court

- appointed counsel, Monte Sherrod, requested that he be allowed to represent himself. (RR, Vol. 7, p. 8). The Trial Judge examined Appellant regarding his qualifications. T he Court informed Appellant that if Appellant waived his right to counsel and represent himself instead, that Appellant could change his mind . The Court told Appellant “You understand that you can change your mind?” (RR, Vol. 7, p. 13). The trial court j udge went further to say; “I mean, if you were to start to represent yourself you could say, well, this is going not like I thought it would. It’s harder than I thought it would be. I want to change my mind and tell the Judge and let Mr. Sherrod start repr esenting me. You understand that?” (RR, Vol. 7, P. 13). The trial court j udge further admonished Appellant, before the waiver: “Now listen, I told you you could change your mind. So
be sure and tell me. Don’t just sit there and suffer. It’s not

n ecessary. Okay? Because you’re going to be missing a lot of things. And you’ve never done a voir dire and you don’t even know what to say to them.” (RR, Vol. 7, p. 16)8

The Trial Judge granted Appellant’s motion to let Appellant represent himself a nd brought the jury in. (RR, Vol. 7, p. 18). During his presentation of the defense’s portion of voir dire, Appellant did in fact change his mind and asked the Court to “remove my motion to represent myself and ask for Mr. Sherrod’s representation.” (RR, V ol. 7, p. 60). Appellant stated that he wanted his attorney to do the voir dire. (RR, Vol. 7, p. 60). The Trial Judge refused Appellant’s request , and did not let Mr. Sherrod start representing Appellant but instead required Appellant to complete voir dire before the Court would allow Appellant to have counsel represent him before the jury. Mr. Sherrod did not take part in voir dire due to the Trial Judge’s failure to rule consistently with the admonishment he gave Appellant except that he was present on “s tandby”

.

GROUND FOR REVIEW ONE RESTATED

The Court of Appeals Erred when it found that Appellant was properly admonished regarding his waiver of counsel and granted Appellant’s waiver of counsel

. RR Vol. 7, pp. 8

- 16, 60. Calamaco v. State , No. 11

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- CR, 11th Court of Appeals April 9, 2015, at page 7.9 ARGUMENT

Review of Ground For Review One is proper because the Court of Appeals decision has decided an important question of state and federal law that has not been, but should be settled by the C ourt of Criminal Appeals. Review of Ground For Review One is proper because the Court of Appeals has decided an important question of state and federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals and the Supr eme Court of the United States. The C ourt of Appeals found that the trial court adequately admonished the Appellant regarding the possible consequences of the waver of counsel so that Appellant could enter a knowing and intelligent
waiver. In Faretta v. California the U.S. Supreme Court ruled that to waive the right to counsel the accused must “knowingly and intelligently” forgo that right, citing, Johnson v. Zerbst , 304 U.S. at 464

- 465. 58 S.Ct., at 1023.
To that end , the trial court must make the defend ant “aware of the dangers and disadvantages of self

- representation, so that he knows what he is doing and hi s choice is made with eyes open”, citing Adams v. United States ex rel. McCann , 317 U.S. at 279, 63 S.Ct., at 242

. Faretta v.10

California 422 U.S. 80 6 at 835, 95 S.Ct. 2525, 45 L.Ed.2d 562

. Farett a established that part of making the record establish that the defendant knows what he is doing and his choice is made with eyes open is admonishing the defendant that he would be required to follow all the

“ ground rules” of trial procedure. The Texas Code of Criminal Procedure provides , in part , that in such circumstances the trial court shall “advise” the defendant of the “dangers and disadvantages of self representation”. Tex. Code Crim. Proc. Art. 1.051(g ). When the record does not affirmatively show that the defendan t was sufficiently admonished before defendant’s waiver of counsel is allowed as
is required by Faretta , it is reversible error not subject to harm analysis. Williams v. State , 252 S.W.3d 353 , Powell v. State , 632 S.W.2d 354, 355 (Tex. Crim. App 1582) At Appellant’s trial the judge advised Appellant , before allowing him to represent himself , that Appellant could change his mind even if he were to start representing himself, that he could tel l the judge and “let Mr. Sherrod start representing” Appellant. The Court ’s advise referred to Appellant changing his mind during the voir dire process when he told Appellant:11 “Now listen, I told you you could change your mind. So be
sure and tell me. Don’t just sit there and suffer. It’s not necessary. Okay? Because you’re going to be missing a lot of things. And you’ve never done a voir dire and you don’t even know what to say to them.” (RR, Vol. 7, p. 16)
But when , following the procedure t he judge outlined, Appellant attempted voir dire on his own and changed his mind, the judge would not let him have his lawyer back to do voir dire. It is clear from the record that Appellant believed that th e judge would let Mr. Sherrod finished the voir
d ire. “THE DEFENDANT: That’s fine. At this time I would like to

move the court to remove my motion to represent myself and ask Mr. Sherrod’s representation. “THE COURT: Do you want him to do the voir dire? “THE DEFENDANT: Yes, sir.” (RR Vol. 7, p. 60) The judge erroneously told Appellant “I can’t” allow Appellant to have his attorney address the jury on voir dire. (RR Vol. 7, p. 60).
It was not until voir dire was completed , that the judge allowed Mr. Sherrod to actively participate in the tr ial by agreeing to excase some12

potential jurors, then , a jury was sworn and the court recessed for lunch.
When the court re

- convened, Appellant once again requested that he be allowed to “withdraw my motion for self

- representation”

. The mixed signals
and e rroneous instructions to Appellant evidentially confused him about his right. Mr. Sherrod represented Appellant to the conclusion of the trial.
The issue to be before the Court of Criminal Appeals is that when the trial court gives such misleading advise (intentionally or not) does that advise fulfill the requirements of Faretta ? The Court did not advise or admonish Appellant of the danger and disadvantage that the court could, under some circumstances, deprive Appellant of counsel to prevent the disruptio n of the orderly progress of the trial, or perhaps; as the State has argued; to disallow hybred representation. The court did not advise or
admonish that the Appellant would have to follow the ground rules of procedure but that the judge might make an erro r that would deprive Appellant of counsel during a critical phase of trial and that the court, in effect did not have to follow the rules of procedure because the judge’s error might be deemed to be “harmless.” In short, the trial court told Appellant the law was one thing and then , after being approached by the Assistant District Attorney , the court decided the law was another thing and erroneously deprived Appellant of counsel.13

Appellant was led to believe that the law was that he did not “have to suffer ” without an attorney, that he could change his mind “ ...and tell the Judge and let Mr. Sherrod start...” RR Vol. 7, p.13. The Appellate court did not apply the Faretta standard that a defendant must be advised or
admonished in such a way that if he enters a w aiver of counsel so that he
do es so having been told of the disadvantages and dangers of self

representation and that he make a choice with eyes open.
If Faretta is to be modified to allow the trial court to advise a defendant erroneously on the law or to advise a defendant that the law protects the defendant in a certain way and then in the same trial to deprive the same defendant of that protection, then it should be the Court of Criminal Appeals that delineates standards and limitations on this practice to guide the courts and the public in the future.

GROUND FOR REVIEW TWO

The Eleventh Cour t of Appeals Erred when it found that Appellant entered a knowing, intelligent waiver of counsel. RR Vol. 7, pp. 8

- 16, 60. Calamaco v. State No. 11

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- CR, 1 1th Court of Appeals April 9, 2015, at page 7.14 ARGUMENT
Review of Ground For Review Two is proper because the Court of Appeals decision has decided an important question of state and federal law that has not been, but should be settled by the Court of Criminal Appeals. Review of Ground For Review Two is proper because the Court of Appeals has decided an important question of state and federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals and the Supreme Cour t of the United States. In order for Appellant’s waiver of counsel which was entered before voir dire commenced at trial herein to have been valid, it must have been given competently, knowingly, intelligently and voluntarily; it is his
constitutional ri ght to elect to do so and to represent himself. (U.S. Const., amend. VI; Tex.Const.Art. 1, Sec 10; Faretta v. California , 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Williams v. State , 252 S.W.3d 353, 356 (Tex.Crim.App. 2008) The Appellate Co urt in this case found that Appellant knowingly and intelligently waived his right to counsel prior to voir dire. However, the record reflects that Appellant could not have given a knowing, intelligent nor voluntary relinquishment of his right to counsel a t this critical phase of15

trial because he was misinstructed by the Trial C ourt as to what could and
would happen and was misinformed as to how the law would eventually be carried out regarding his waiver of right to counsel and further, Appellant
relied on that misinformation to his detriment in waiving his right to counsel. Because the Court undertook to inform Appellant of the law pertinent to his decision to have counsel withdrawn and to represent himself and that informat ion was substantially incorrect and erroneously applied, the Appellant cannot be said to have given knowing, intelligent, and voluntary waiver. A defendant should be able to rely on the Court’s advice and here , Ap pellant did so to his detriment, his eyes closed by the advice of the tria l
court. Appellant relied on the trial court’s representation that the court would not commit the error of depr iving Appellant of Counsel if Appellant waived his right to counsel. The trial court then committed the error , depriving Appellant of counsel during a critical phase of the trial; voir dire. Only if the trial court had advised Appellant that the court could deprive him of counsel regardless of the court’s representation that it would not deprive him of
counsel and further that, if the court depr ived him of counsel , Appellant might have no remedy at law because it might be harmless error and then Appellant decided to go ahead and waive the right to counsel could the16

waiver have been said to have been entered by Appellate with his eyes
open, aware of the dangers and disadvantages, knowing, intelligently and voluntarily . If Texas courts are to modify Faretta and it’s progeny, then it should be the Court of Criminal Appeals that delineates these standards and which sets limitations on this practice, r esolving any conflicts.

GROUND FOR REVIEW THREE
The Court of Appeals e rred when , although it correctly found that the trial court erred by depriving Appellant of counsel during voir dire , it then incorrectly found the error to be no n - structural error an d further erred by applying a harm analysis to the error. RR Vol. 7, pp. 8

- 16, 60. Calamaco v. State No. 11

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- CR, 11th Court of Appeals April 9, 2015, at page 7.

ARGUMENT

Review of Ground For Review Three is proper because this Court
has recentl y granted review of a PDR with a similar issue Lewis v. State , No. 02

- 12

- 00246

- CR, 2014 WL 491746 (Tex. App.

– Fort Worth Feb. 6, 2014) (mem. Op., not designated for publication), pet. granted, (Tex. Crim App. Sept. 17, 2014) (No. PD

- 0307

- 14). The issue pr esented in the parties’ briefs to the Court of Criminal Appeals in Lewis is whether the proper17

standard of review on appeal was de novo or abuse of discretion. In Lewis the trial court denied the defendant’s request for court appointed counsel to represent him during voir dire and subsequently, throughout trial when he attempted to withdraw his waiver of court appointed counsel.
Review of Ground For Review Three is proper because the Court of Appeals ’ decision has decided an important question of state and federal law that has not been, but should be settled by the Court of Criminal Appeals. Review of Ground For Review Three is proper because the Court of Appeals has decided an important question of state and federal law in a way that conflicts with the ap plicable decisions of the Court of Criminal Appeals and the Supreme Court of the United States.
Review of Ground For Review Three is also proper because the question of whether a partial denial by the trial judge of counsel for a defendant during voir di re in a criminal trial can ever be “structural error” is a novel question of law which has not been, but should be , decided by the Court of Criminal Appeals. The 11th Court of Appeals found that the trial court erred when it refused to allow Appellant w ithdraw his waiver of counsel and allow appointed counsel to complete the defense portion of voir dire. RR Vol. 7,18

pp. 8

- 16, 60. Calamaco v. State No. 11

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- CR, 11th Court of Appeals April 9, 2015, p 7. The Court of Appeals then ruled: “Because A ppellant was not totally deprived of counsel during voir dire, we hold that the error was not a structural one but, rather, one subject to a harm analysis.” RR Vol. 7, pp. 8

- 16, 60. Calamaco v. State No. 11

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- CR, 11th Court of Appeal s April 9, 2015, at page 7. The Court of Appeals then went on to state: “We have not found a case in which a court specifically addresses whether the partial denial of counsel during voir dire is a structural error that is not subject to a har m analysis or is a constitutional error that is subject to a harm analysis.” This is an issue for the Court of Criminal Appeals because the converse is also true: undersigned counsel has not found a case that says partial denial of counsel during v oir dire is never a structural error; and in the case of Mr. Calamaco we contend that a th o rough review would show that the denial was certainly structural error. There are cases werein partial19

denial of a constitutional right were found to be structural e rrors. Davis v. State of Alaska ; 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (Feb. 27,
1974 Supreme Court of United States ) , (cross

- examination limited by trial court) Vasquez v. Hillery , 474 U.S. 254 106 S.Ct. 617, 818 L.Ed.2d 598 (1986) (unlawful exclusi on of only certain grand jurors based on race). A more extensive briefing may reveal other cases. The “erroneous denial of counsel bears directly on the framework within which the trial proceeds” United States v. Gonzales

- Lopez; 548 U.S. 140, 126 S. Ct. 2 557, 165 L.Ed.2d 409 (June 26, 2006 Supreme Court of United States) , citing Fulminante

. In it’s analysis of whether or not the denial of Mr. Calamaco’s right to
counsel was structural , the Court of Appeals also relied on the fact that the
trial court had given Mr. Calamaco a “standby counsel” to support it’s ruling. This reasoning conflicts with earlier rulings that “standby counsel ” does not equate to counsel for his defense to which a defendant is entitled by the Sixth Amendment ” , Medley v. The State of Texas ; 47 S.W.3d 17 (2000 ) , Mckaskle v. Wiggins , 465 U.S. 168, 183

- 84, 104 S.Ct. 944, 953

- 54, 79 L.Ed.2d 122 (1984)

. In it’s opinion in Cronic v. U.S. , the U.S. Supreme Court stated that “although counsel is available to assist the accused” that
there are occasions when a presumption of prejudice is appropriate without20

a harm analysis. Cronic v. United States ; 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) Powell v. Alabama 287 U.S. 45, 53, S.Ct 55 77 L.Ed 158 (1932). In it’s analysis of whether the error was structural error the Appellate Court “jumped the gun” and inquired into whether the Appellant was harmed by the error before fully examining the nature of the violation of the
6th Amendment

. The Court of Appeals did not fully analyze whether the error amounted to a structural defect affecting the framework in which trial proceeded, and cut short the examination of the error to which Appellant is
entitled Faretta v. California , 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) p. 310 , citing Gorbert v. State , 717 S.W.2d 21, 24 (Tex. Crim. App. 1986)

. Instead of fully examining the nature and effect of the error, the Court of Appeals took a shortcut, citing Gorbert

. I n Gorbert it is not clear how long the defense attorney was not present durin g voir dire, but only that his absence was “partial”. It is clear, however , that the absence of defense counsel in Gorbert was only during part of the State’s examination of the panel and not , as it was in Appellant’s trial, during the defense
examination. Gorbert at p. 23. In Gorbert the Court of Criminal Appeals
relied on Heredia which found no deprivation of right to counsel in a trial where defense counsel was absent for only “two or three minutes” of the21

State’s examination of a potential juror. Heredi a v. State , 528 S.W.2d 847 (Tex. Crim. App. 1975)
In both Gorbert and Heredia the Court of Criminal Appeals found there was no deprivation of the right to counsel. In Mr. Calamaco’s is distinguished because in this case we come to the Court of Criminal
A ppeal s with a finding from the 11th Court of Appeals that the 4 2nd District Court committed error by depriving the Appellant of his Right to Counsel in

v iolation of the Sixth Amendment to the United States Constitution. Calamaco v. State , No. 11

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- C R (Tex. App. Eastland 2015 ) p. 7 Calamaco is further distinguished from other par tial absence of
counsel cases in that Mr. Calamaco’s entire voir dire of the jury panel was very, very brief; it is so short that it consumes only about seven pages of the C ourt Reporter’s record. RR Vol. 7, pp. 54

- 61. The Court of Appeals ’ determination that the error was non

- structural ignored a standard for distinguishing structural errors from non - structural

errors. To apply a harm analysis to a structural error, the co urt’s have ruled, would be t o speculate as to any harm done, and the courts must not engage in such speculation. In cases of non

- structural error the effect of
the error is quantifiable. The Court of Appeals overlooked that important
distinction between st ructural and non

- structural error.22

The error found by the Court of Appeals of depriving Appellant of counsel affects the framework in which the trial proceeds and is not simply an error in the trial process itself. Arizona v. Fulminante , 499 U.S. 279, 111 S.Ct.1246, 113 L.Ed.2d 302

. In United States v. Gonzales

- Lopez the U.S. Supreme Court , ruling that a Sixth Amendment violation was n ot subjected
to harmless e rror analysis, said “errone ous deprivation of the right to counsel of choice with consequences th at are necessarily unquantifiable
and indetermina te unquestionably qualifies as “ structural error” Gonzales

Lopez , citing Sullivan v. Louisiana, 508 U.S. 275, 282

.

“ It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings.

... Harmless

- error analysis in such a context would be a speculative inquiry into what might have occurred in
an alternate universe. ” Gonzales

- Lopez at 150, se also Dav is v. State of Texas ; 228 S.W.3d 917 (Tex.Crim.App.2007), Williams v. State of Texas ; 252 S.W.3d 353 (Tex.Crim.App.2008) This ground should be more fully briefed so the Court of Appeals can make this decision important to the conduct of trials in the low er courts of
Texas.23 PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
prays that this Court grant discretionary review and, after full briefing on the merits, issue an opinion reversing the Court of Appeals’ judgment and remanding the cause to the trial court for a new trial. Appellant respectfully prays that this Court grant review and, after full briefing on the merits, issue an opinion resolving these important issue s so that the bench and bar of this state will know how to addr ess similar issues in the future. Appellant respectfully prays that this Court issue an opinion reversing the Court of Appeals’ judgment and remanding this cause to the Court of Appeals for full and complete consideration of the issue of whether the

erro r of denial of counsel found by the Court of Appeals was a structural

error

.24 Respectfully submitted,

_______________________ Paul W. Hanneman Attorney for Appellant 1305 Lamar Street Sweetwater, Texas 79556 State bar No. 00895500 pwhlawoffice@gmail.com (325) 235

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CERTIFICATE OF SERVICE

I hereby certify, by affixing my signature above, that a true and

cor rect copy of the foregoing Petition for Discretionary Review, was mailed through the U.S. Postal Service to James Edison, Office of the Taylor County District Attorney, 300 Oak Street, Abilene, Texas 79602, and was mailed to Lisa McMinn, State Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711, by U.S. Postal Service.25 Paul W. Hanneman Attorney At Law

1305 Lamar Street Telephone: (325) 235
- 4777 Sweetwater, Texas 79556 Fax: (325) 235
- 4777 pwhlawoffice@gmail.com

Certificate of Compliance

I certify that this Petition For Discretionary Review, a computer generated document, and according to the wor d count function, this document contains a total of 4, 7 52 words, 3,7 26 words that are contain ed in the body of the document, ( which does not include caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of au thorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certific ate of compliance, and appendix) pursuant Tex. R .App.Pro. 9.4 (i)(1), 9.4 (i)(2) (D) , this document is printed in a 14

- point font.

Paul W. Hanneman26

_____ _____________________ ___ ___ _________________________ __

_________________________ APPENDIX

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