No. 14-14-00774-CR

In the Court of Appeals for the 

Fourteenth District of Texas at Houston 

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No. 1415457 

In the 248th District Court 

Of Harris County, Texas 

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JOSEPH LEE FIEDOR

Appellant 

v.

THE STATE OF TEXAS

Appellee

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APPELLANT’S BRIEF ON DIRECT APPEAL

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ADAM BANKS BROWN 

300 MAIN SUITE 200 

HOUSTON, TEXAS 77002 

TEL: 713-223-0051 

FAX : 713-223-0877 

SBOT: 24003775

Counsel for Appellant 

ACCEPTED

14-14-00774-cr

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

4/20/2015 1:56:19 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 4/20/2015 1:56:19 PM CHRISTOPHER A. PRINE Clerk
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STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, appellant requests oral 

argument only if requested by the State.

PARTY IDENTIFICATION

Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all interested 

parties is provided below:

Counsel for Appellant:

Adam B. Brown  Counsel on appeal

Richard F. Burgess  Counsel at trial

Appellant (Criminal Defendant):

Joseph Lee Fiedor—Appellant

Counsel for the State:

Devon Anderson  Harris County District Attorney (interim)

Alan Curry  Assistant District Attorney on appeal

Allison Bambridge  Assistant District Attorney at trial

Trial Judge:

Hon. Katherine Cabaniss  Presiding Judge
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TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT......................................................................2

PARTY IDENTIFICATION ...........................................................................................................2

INDEX OF AUTHORITIES............................................................................................................5

STATEMENT OF THE CASE........................................................................................................7

STATEMENT OF FACTS ..............................................................................................................7

SUMMARY OF THE ARGUMENT ..............................................................................................8

POINT OF ERROR .........................................................................................................................9

POINT OF ERROR ONE — FAILURE TO OBJECT TO DESCRIPTION OF PRIOR FELONY

OFFENSE IN THE PRE-SENTENCE INVESTIGATION RESULTED IN INEFFECTIVE

ASSISTANCE OF COUNSEL

A. Standard of Review and Applicable Law .........................................................................9

B. Argument ........................................................................................................................10

POINT OF ERROR TWO — FAILURE TO OBJECT TO UNSWORN TESTIMONY IN THE PRESENTENCE INVESTIGATION RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review and Applicable Law .......................................................................11

B. Argument ........................................................................................................................12

POINT OF ERROR THREE — FAILURE TO PROVIDE FURTHER MITIGATION TESTIMONY

RESULED IN INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review and Applicable Law .......................................................................13
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B. Argument ........................................................................................................................13

CONCLUSION ........................................................................................................................15

CERTIFICATE OF SERVICE .........................................................................................15
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INDEX OF AUTHORITIES

CASES

Strickland v. Washington , 

466 U.S. 668 ............................................................................................................................... 7

Hernandez v. State, 

988 S.W.2d 770 (Tex. Crim. App. 1999), .................................................................................. 7

Kemp v. State, 

892 S.W.2d 112 (Tex.App.Houston [1st Dist.] 1994, pet. ref‘d).............................................. 8

Ex Parte Duffy, 

607 S.W.2d 507 .......................................................................................................................... 7

McFarland v. State, 

928 S.W.2d 482 (Tex. Crim. App. 1996), .................................................................................. 8

Glover v. United States, 

531 U.S. 198 (2001) .................................................................................................................. 8

Wyatt v. State, 

23 S.W.3d 18 (Tex. Crim. App. 2000), ...................................................................................... 8

Gifford v. State, 

980 S.W.2d 791 (Tex.App.Houston [1st Dist.] 1998, pet. ref‘d).............................................. 8

Delrio v. State , 

840 S.W. 2d 443 ....................................................................................................................... 12

Jackson v. State , 

877 S.W. 2d 768 ....................................................................................................................... 12
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RULES

TEX. R. APP. P. 39.1 ........................................................................................................................ 1

TEX. R. APP. P. 9.4(g)...................................................................................................................... 1

TEX. R.EVID. 403 ........................................................................................................................... 8
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TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The State charged Appellant with Intoxication Assault. Appellant pled guilty to the charge 

and a Pre-Sentence Investigation was ordered. The Court, after a hearing, found Appellant guilty 

as charged, and assessed his punishment at the maximum confinement of 20 years in the Texas 

Department of Criminal Justice, Institutional Division. Appellant filed a timely and written 

notice of appeal.

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STATEMENT OF FACTS

The following synopsis describes the testimony given by the relevant witnesses. It should 

not be construed as Appellant’s acceptance of any fact asserted. Some witness testimony was not 

mentioned nor referred to for the sake of judicial economy. However, Appellant requests the 

Court to consider and review the entire record of the hearing on the merits when rendering their 

decision. 

Appellant was arrested and charged with the offense of Intoxication Assault on January 24, 

2014. He plead guilty to the charge on July 1, 2014 and requested a punishment hearing along 

with a Pre-sentence Investigation Report (hereinafter PSI). On August 18, 2014, a punishment 

hearing was presented to the 248th District Court. At the hearing, the PSI was produced by the 

probation department. The results of the PSI report and testimony from the Appellant’s foster 

mother were the only evidence presented by Appellant at that hearing. Upon the State’s motion 

to enter the PSI, Appellant’s trial attorney failed to make any objections to its admission.

Included in the PSI report were highly prejudicial and improper pieces of key evidence, 

including but not limited to lengthy descriptions of the facts of a juvenile sexual assault of a child 
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case which was used as an enhancement and letters from Victims family and coworkers which 

requested the maximum sentence. Very little mitigation testimony was given 

Appellant would argue trial counsel’s failure to object to this improper evidence proves 

said trial counsel was ineffective in his representation of Appellant under the Strictland review.

Additionally, at the hearing, trial counsel failed to present proper evidence of Appellant’s 

mental health and childhood history for mitigation purposes. This failure to provide such 

evidence proves said trial counsel was ineffective in his representation of Appellant under the 

Strickland review.

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SUMMARY OF THE ARGUMENT

In Appellant’s first point of error, Appellant argues that he received ineffective assistance 

of counsel at his hearing on punishment. Specifically, Appellant argues that his trial counsel was 

ineffective in that he failed to timely object to descriptions of a prior felony offense in the Presentence Investigation Report.

In Appellant’s second point of error, Appellant argues that he received ineffective 

assistance of counsel at his hearing on punishment. Specifically, Appellant argues that his trial 

counsel was ineffective in that he failed to object to unsworn testimony presented in the PSI report.

In Appellant’s third point of error, Appellant argues that he received ineffective assistance 

of counsel at his hearing on punishment. Specifically, Appellant argues that his trial counsel was 

ineffective in that he presented only limited mitigation evidence during the hearing. 

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POINT OF ERROR

POINT OF ERROR ONE — FAILURE TO OBJECT TO DESCRIPTION OF PRIOR FELONY OFFENSE IN THE 

PRE-SENTENCE INVESTIGATION RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review and Applicable Law

Ineffective assistance of counsel is evaluated using a two step process. Strickland v. 

Washington 466 U.S. 668. The first is the trial counsel’s representation fell below the objective 

standard of reasonableness (Id. 688). To prove this step, the Appellant must identify the specific 

acts or omissions of counsel alleged to be ineffective and prove they were ineffective. Hernandez 

v. State, 988 S.W.2d. 770 (Tex.Crim.App. 1999). The second is the Appellant must show a 

prejudice as a result of counsel’s performance See Strickland, 466 U.S. at 694. A record that 

focuses on the conduct of trial counsel is necessary for a proper evaluation Kemp v. State, 892 

S.W.2d 112 (Tex.App.Houston [1st Dist.] 1994, pet. ref’d). To show prejudice, Appellant must 

show that but for the ineffective actions of the trial attorney, the result of the proceeding would 

have been different. See Strickland at 694, 104 S.Ct. at 2068.

The Strickland test now applies to the punishment phase of a non-capital trial. See

Hernandez v. State, 988 S.W.2d 53 (Tex. Crim. App.1999), overruling Ex parte Duffy, 607

S.W.2d 507, 516 (Tex.Crim.App.1980) (establishing test for ineffective assistance of

counsel in punishment phase of non-capital trial). We now apply the same two-prong

Strickland standard of review for ineffective assistance of counsel claims in both the

guilt/innocence phase of trial and the punishment phase of trial. Hernandez v. State, 726

S.W.2d 53, 55 (Tex. Crim. App. 1986). To show ineffective assistance of counsel at 

punishment, the appellant must first demonstrate counsel's representation fell below an

objective standard of reasonableness under prevailing professional norms. See Strickland v. 
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Washington, 466 U.S. 668, 104S.Ct. 2052, 80 L.Ed.2d 674 (1984); McFarland v. State, 928 

S.W.2d 482, 500 (Tex.Crim.App.1996). Counsel's competence is presumed, and the appellant 

must rebut this presumption by identifying the acts or omissions of counsel that are alleged as

ineffective and affirmatively prove that they fell below the professional norm of

reasonableness. See McFarland, 928 S.W.2d at 500. An ineffectiveness claim cannot be 

demonstrated isolating any portion of counsel's representation, but is judged on the totality of

the representation. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. The Supreme Court 

has held that counsel's deficient performance that resulted in a higher sentence under determinate 

sentencing guidelines constitutes prejudice. Glover v. United States, 531 U.S. 198 (2001).

The Rule 403 balancing test includes the following factors: 1) how compellingly the 

extraneous offense evidence serves to make a fact or consequence more or less probable a factor 

which is related to the strength of the evidence presented by the proponent to show the Defendant 

in fact committed the extraneous offense; 2) the potential the other offense evidence has to 

impress the jury in some irrational but nevertheless indelible way; 3) the time the proponent will 

need to develop the evidence, during which the jury will be distracted from consideration of the 

indicted offense; and 4) the force of the proponent’s need for this evidence to prove a fact of 

consequence Wyatt v. State, 23 SW3rd 18, 26 (Tex.Crim.App. 2000). Texas Rules of Evidence 

403 provides that relevant evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury 

TEX.R.EVID. 403.

B. Argument

At the punishment hearing, a major portion of the evidence presented both for and against 
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Appellant was the PSI report. Therefore, it must be assumed the Court took the report into great 

consideration prior to rendering the maximum sentence against the Appellant despite the lack of 

any real prior offenses other than those committed when the Appellant was very young. 

As to this prior offense, the Appellant’s trial attorney allowed into evidence very specific 

and highly prejudicial details. While descriptions of prior offenses are admissible, they are not 

allowed to cross the line of prejudicial under rule 403 of the Rules of Evidence. In this case, the 

PSI contained descriptions such as the Appellant, “leaping on another student in a sexual manner” 

and a medical exam which showed, “dried blood around the anal area.” This statement along with 

other descriptors in the PSI are highly prejudicial to Appellant and would have resulted in a 

different outcome in the sentencing. Trial counsel’s failure to object to this evidence cannot be 

considered trial strategy and falls below the standard of reasonableness under the Strickland

review.

POINT OF ERROR TWO — FAILURE TO OBJECT TO UNSWORN TESTIMONY IN THE PRE-SENTENCE 

INVESTIGATION RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review and Applicable Law

In Gifford v. State, 980 S.W.2d 791 (Tex. App. -Houston [1st Dist.] 1998,pet. ref d), the 

First Court of Appeals reversed and remanded for a new punishment hearing, where counsel for

the defense 1)failed to object to unsworn victim impact statements made beforesentencing and 

2) did not ask to conduct cross-examination. However, as previously mentioned, the Defense 

failed to object to their admission under Article 42.03 Sec. 1 (b) of the Texas Code of Criminal

Procedure. The Texas Code ofCriminal Procedure authorizes a court to receive victim impact

statements. See Tex.CodeCrim.Proc.Ann. Art. 42.03 Sec. 1 (b) (Vernon Supp.2013). But, as

shown below, thelegislature has severely limited the use and impact of the statement by
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requiring that it be made after punishment has been assessed:

(b) The court shall permit a victim, close relative of a deceased victim, or guardian of a

victim, as defined by Article 56.01 of this code, to appear inperson to present to the

court and to the defendant a statement of the person's views about the offense, the

defendant, and the effect of the offense on the victim. The victim, relative, or guardian 

may not direct questions to the defendant while making the statement. The court reporter 

may not transcribe the statement. The statement must be made:

(1) after punishment has been assessed and the court has determined whether or 

not to grant community supervision in the case;

(2) after the court has announced the terms and 

conditions of the sentence;

(3) after sentence is pronounced.

B. Argument

Trial counsel failed to object to the portion of the PSI which allowed non-sworn testimony 

before the court in the form of letters written by family and friends of the victim requesting the 

maximum sentence be imposed. These letters number twenty seven. Two of the letters have 

additional signatures of thirty eight different people. All of the letters reflect their views about 

the offense, the Defendant, and the effect of the offense has had. This unsworn evidence was 

admitted prior to punishment being assessed. The witnesses were not present to testify, and 

therefore were unavailable for cross-examination.

The complained of unsworn victim impact statements contained within the letters were

entered into evidence 1)before punishment was assessed, 2) before the court announced the terms 

and conditions of the sentence and 3) before sentence was pronounced. Clearly, these unsworn
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victim impact statements, did not qualify as admissible statements under article 42.03. See id.. 

Consequently, Defense counsel should have objected to the State's introduction of the letters 

containing unsworn victim impact statements into evidence. Appellant argues that 

ineffective assistance of counsel in his case is the equivalent of denial of counsel and that he

should be granted another Pre-Sentence Investigation hearing.

POINT OF ERROR THREE — FAILURE TO PROVIDE FURTHER MITIGATION TESTIMONY 

RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review and Applicable Law

The benchmark for judging a claim of ineffective assistance is whether counsel's conduct

so undermined the proper functioning of the adversarial process that a trial could not be relied on

as having produced a just result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). To establish ineffective assistance of counsel at theguilt\innocence stage

of trial, the appellant must show that (I) his counsel's performancewas deficient, i.e., counsel's

errors were so serious that he was not functioning as the"counsel" guaranteed by the Sixth

Amendment, and (2) the deficient performance prejudiced the defense i.e., deprived him of a

fair trial. Id. at 687; see Hernandez v. State,726 S.W.2d 53, 55 (Tex. Crim. App. 1986). 

These errors demonstrate (1) that appellant's counsel's performance was undeniably

deficient, i.e. counsel's errors were so serious that he was not functioning as the "counsel"

guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense 

i.e., deprived him of a fair hearing. Id. at 687; see Hernandez v. State, 726 S.W.2d 53, 55 (Tex. 

Crim. App. 1986).

B. Argument

At the PSI hearing, the only live testimony presented by the Defense was from the 
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Appellant’s foster mother Anna L. Jones. Ms. Jones was able to merely provide a brief insight 

into the character of the Appellant. There was no testimony concerning Appellant’s mental health 

issues or brutal upbringing. As noted in the PSI report, Appellant had been treated in the past for 

Depression and for being Bipolar. Appellant was permanently sent to foster care at a very young 

age. He reported he was that beaten by both his step father and foster mother since the age of 5. 

An expert witness able to discuss these mental diseases and his traumatic childhood and their 

possible role in the actions of Appellant would have been critical to providing to the Court a better 

idea of what the proper sentence would be. Additionally, the record is also clear that should 

Appellant’s attorney have put on any mitigation evidence, the outcome would have been different 

since Appellant was sentenced to the maximum under the agreement. Therefore, the record shows 

that the mitigation evidence would have at least given the Court reason to give less than the 

maximum. 

As it applies to all points of error presented, Appellant is well aware of the case law 

regarding an ineffective argument on direct appeal with a “cold record” See Delrio v. State 840 

S.W. 2nd 443, 446. However, Appellant would argue a transcript of this nature is by no means 

required if the “cold record” shows enough evidence for the Appellate Court not to speculate to 

determine if the trial strategy was reasonable or not. See Jackson v. State 877 S.W.2d 768, 771. 

Despite the lack of a transcript of a Motion for New Trial hearing, there can be no explanation for 

the trial attorney not to put on more mitigating evidence or make proper objections. 
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CONCLUSION

For the reasons described above, Appellant’s three points of error should be sustained and 

his conviction reversed for a new punishment hearing.

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing instrument has been mailed or hand-delivered to the 

State’s attorney at the following address on April 20, 2015:

Mr. Alan Curry

Harris County District Attorney’s Office

1201 Franklin St., Ste. 600

Houston, Texas 77002

/s/ Adam Banks Brown

ADAM BANKS BROWN

300 MAIN SUITE 200

HOUSTON, TEXAS 77002

TEL: 713-223-0051

FAX : 713-223-0877

SBOT: 24003775

Counsel for Appellant

Date: April 20, 2015