No. 03-14-00528-CR

In the 

Court of Appeals for the Third District of Texas 

at Austin 

___________________________

No. 12-0465-K277 

In the 368th Judicial District Court 

Williamson County, Texas 

____________________________

JAMES ALAN WEATHERFORD 

Appellant 

v.

THE STATE OF TEXAS 

Appellee 

_____________________________

STATE’S BRIEF IN RESPONSE TO APPELLANT’S PRO SE BRIEF

_____________________________

Jana Duty 

District Attorney 

Williamson County, Texas 

John C. Prezas 

State Bar No: 24041722 

Assistant District Attorney 

405 Martin Luther King, Box 1 

 Georgetown, Texas 78626 

 (512) 943-1234 

 (512) 943-1255 (fax) 

 jprezas@wilco.org

ACCEPTED

03-14-00528-CR

6327823

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/3/2015 12:24:00 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/3/2015 12:24:00 PM JEFFREY D. KYLE Clerk
ii

IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list 

of the names of all interested parties follows:

Presiding Judge at Trial

 The Honorable Rick Kennon, 368th Judicial District Court, Williamson 

County, Texas.

Attorneys for the State

 Ms. Jana Duty, District Attorney for Williamson County, 405 Martin Luther 

King, Georgetown, Texas 78626.

 Ms. Elizabeth Whited (pretrial/trial), Former Assistant District Attorney for 

Williamson County, 405 Martin Luther King, Georgetown, Texas 78626.

 Mr. Danny Smith (pretrial/trial), Assistant District Attorney for Williamson 

County, 405 Martin Luther King, Georgetown, Texas 78626.

 Mr. John C. Prezas (appeal), Assistant District Attorney for Williamson 

County, 405 Martin Luther King, Georgetown, Texas 78626.

 Mr. Daniel Sakaida (appeal), Intern/Special Prosecutor/Postgraduate Fellow

for the Williamson County District Attorney, 405 Martin Luther King, 

Georgetown, Texas 78626.

Attorneys for the Defendant

 Mr. Daniel Wannamaker (trial), Wannamaker & Assosiates, P.O. Box 2271, 

Austin, Texas, 787681.

 Mr. Dal Ruggles (appeal), Law Offices of Dal R. Ruggles, 1103 Nueces, 

Austin, Texas, 78701.

Defendant/Appellant Pro Se

 Mr. James Weatherford, TDCJ # 01953853, Middleton Unit, 13055 F.M. 

3422, Abilene, Texas 79601.
iii

TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES .................................................................. ii

TABLE OF CONTENTS......................................................................................... iii

INDEX OF AUTHORITIES.................................................................................... iv

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ........................................................................3

REPLY TO ISSUE FOR REVIEW ONE..................................................................3

PRAYER....................................................................................................................6

CERTIFICATE OF COMPLIANCE.........................................................................7

CERTIFICATE OF SERVICE ..................................................................................7
iv

INDEX OF AUTHORITIES

State Cases

Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992).....................................4, 6

Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980).........................................5

Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997).....................................4 

Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).......................................5

Ex parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987).........................................3

Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) .................................4

Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999)..................................3

Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998).......................................5

Kober v. State, 988 S.W.2d 230 (Tex. Crim. App. 1999)......................................... 4 

Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003).....................................5

Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) ..........................................4

Strickland v. Washington, 466 U.S. 668 (1984) ................................................3, 4, 6

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).......................................4
1

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

Appellant pleaded guilty in an open plea to numerous counts of Possession 

of Child Pornography in two different cause numbers. Appellant appealed this 

conviction, and his appellate counsel has since filed an Anders brief in this case 

No. 12-0465-K368 asserting that there are no meritorious grounds for this appeal. 

Appellant himself filed a Pro Se brief on July 14, 2015 alleging that his trial 

counsel was constitutionally ineffective. This brief is a response to Appellant’s Pro 

Se filing. 

STATEMENT OF FACTS

Appellant’s Pro Se brief outlines a claim for ineffective assistance of 

counsel, and attempts to bolster that argument with allegations regarding acts and 

statements attributable to Appellant’s trial counsel. Specifically, Appellant alleges 

that his attorney bullied him into entering an open guilty plea, partly by relaying to 

Appellant that his daughter may be called to testify and “humiliated” at a trial. 

Appellant also claims he was under the impression that, even after pleading guilty, 

the trial court judge would determine his guilt or innocence, and that he was not 

informed the trial would only be a punishment phase. 
2

However, none of the facts asserted by Appellant have proof in the record 

which is now before the court. The motion for new trial, filed August 21, 2014 by 

appellant only claimed that the verdict was contrary to the law and the evidence.

C.R. vol. 1 pp. 104-106.

Before pleading guilty, the trial court and Appellant had the following 

exchange:

THE COURT: Okay. And I understand that you have decided to 

waive your right to a jury trial; is that right?

THE DEFENDANT: Yes, sir, Your Honor.

THE COURT: Okay. And, understand, I have paperwork in front of

me, as well, and both of these cases indicates that you're going 

to enter a plea and then we're going to have a sentencing 

hearing in front of me?

THE DEFENDANT: Yes, sir, Your Honor.

THE COURT: Is that what you want to do?

THE DEFENDANT: Yes, sir, Your Honor.

THE COURT: Okay. So we're going to go through all these this 

morning. And you understand that if you enter your plea today 

and I accept that plea, that you can't take that back; you can't 

later say, "Oh, I changed my mind and I want to go to a jury 

trial now." Do you understand that?

THE DEFENDANT: Yes, sir, Your Honor.

R.R. vol. 4 p. 5-6. Following this, Appellant twice in this cause number

acknowledged that he understood that by pleading guilty he was waiving his right 

to a trial by jury, and instead moving to a punishment hearing. R.R. vol. 4 pp. 9, 

11. Appellant also affirmed that he was not coerced or threatened into entering his 

plea of guilty. R.R. vol. 4 pp. 10, 12.
3

SUMMARY OF THE ARGUMENT

Because Appellant’s claim of ineffective assistance of trial counsel has no 

basis in the record on appeal, this Court should permit Dal Ruggles to withdraw as 

counsel and find that the appeal is indeed frivolous.

REPLY TO INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Texas has adopted the Strickland standard for cases involving allegations of 

constitutionally ineffective assistance of counsel. See Ex parte Wilson, 724 S.W.2d 

72, 73 (Tex. Crim. App. 1987); Strickland v. Washington, 466 U.S. 668 (1984).

This standard requires that Appellant prove both i) that counsel’s conduct was 

deficient as falling below an objective standard of reasonableness, and ii) 

prejudice, that there is a “reasonable probability” the result of the trial would have 

been different but for counsel’s deficient performance. Hernandez v. State, 988 

S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999). Specifically, when a defendant is 

claiming ineffective assistance of counsel that has induced him to enter a plea of 

guilty, the Strickland standard requires the defendant to show a reasonable 

probability that “but for defense counsel’s errors,” the defendant “would not have 

pleaded guilty and would have insisted on going to trial.” Kober v. State, 988 
4

S.W.2d 230, 232 (Tex. Crim. App. 1999); Ex parte Morrow, 952 S.W.2d 530, 536 

(Tex. Crim. App. 1997).

An appellate court should review the totality of an attorney’s representation, 

and the particular circumstances of each case in evaluating such claims. Thompson 

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Judicial scrutiny of trial 

counsel’s decisions is “highly deferential,” and must include a strong presumption 

that trial counsel made all significant decisions in the exercise of a reasonable trial 

strategy, and the Appellant must overcome this presumption to establish a claim of 

ineffective assistance of counsel. See Delrio v. State, 840 S.W.2d 443, 445 (Tex. 

Crim. App. 1992); Strickland, 466 U.S. at 689. A court should generally decline to 

find trial counsel ineffective absent an opportunity to explain his actions. 

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). 

The burden for proving an ineffective assistance of counsel claim by a 

preponderance of the evidence rests on the Appellant, and failure to show either 

prong will defeat a claim. Thompson, 9 S.W.3d at 813; Smith v. State, 286 S.W.3d 

333, 340 (Tex. Crim. App. 2009). Naturally then, ineffective assistance of counsel 

is difficult to prove on direct appeal absent a hearing, such as on a Motion for New 

Trial, which would provide the reviewing court with a record. Indeed, the Court of 

Criminal Appeals has repeatedly held that the appropriate or most preferred means 

by which a defendant should raise a claim of ineffective assistance of counsel is by 
5

way of a post-conviction writ of habeas corpus. See, e.g., Rylander v. State, 101 

S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Jackson v. State, 973 S.W.2d 954, 

957 (Tex. Crim. App. 1998); Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. 

App. 1997) (“in most ineffective assistance claims, a writ of habeas corpus is 

essential to gathering the facts necessary to adequately evaluate such claims”); Ex 

parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980) (“Experience has taught 

us that in most instances where the claim of ineffective assistance of counsel is 

raised, the record on direct appeal is simply not in a shape, perhaps because of the 

very alleged ineffectiveness below, that would adequately reflect the failings of 

trial counsel”). 

In this case, Appellant has pointed to no evidence in the record to support his 

claims that he was coerced into pleading and did not understand the consequences.

Even the Motion for New Trial filed on filed August 21, 2014 does not allege 

ineffective assistance of counsel, and no facts to that end were developed. See C.R. 

vol. 1 pp. 104-106. Further, the facts that are in the record indicate that Appellant 

was properly admonished, and that he was not being coerced into pleading.

Appellant was properly admonished of the consequences of his plea of guilty on 

the record, and affirmed that he understood what rights he was waiving. R.R. vol. 4

p. 5-12. Contrary to Appellant’s claims that he was not aware pleading guilty 
6

would put the trial in a punishment phase, the Court did directly admonish 

Appellant multiple times to that effect prior to his plea. R.R. vol. 4 p. 5-6.

Because the record in this case does not support Appellant’s claims, and the 

facts in the record as it currently stands would in fact tend to show the opposite, he 

has not disrupted the “highly deferential” strong presumption that his trial counsel 

acted made all significant decisions in the exercise of a reasonable trial strategy. 

See Delrio, 840 S.W.2d at 445; Strickland, 466 U.S. at 689. Therefore, Appellant

has not met his burden to show ineffective assistance of counsel, and his claims

must fail on direct appeal.

PRAYER

Wherefore, the State respectfully requests that this Court permit Dal Ruggles 

to withdraw as appellate counsel in this case and find that the appeal in this cause 

is indeed frivolous.
7

Respectfully submitted,

Jana Duty

District Attorney

Williamson County, Texas

 /s/ John C. Prezas 

John C. Prezas

State Bar No: 24041722

Assistant District Attorney

405 Martin Luther King, Box 1

Georgetown, Texas 78626

(512) 943-1234

(512) 943-1255 (fax)

jprezas@wilco.org

CERTIFICATE OF COMPLIANCE

I certify that, after allowable exclusions, the State’s brief contains 1,304

words in compliance with Rule 9.4 of the Texas rules of Appellate Procedure.

__/s/ John C. Prezas______________

John C. Prezas

CERTIFICATE OF SERVICE

I hereby certify that on August 8, 2013, I electronically filed the foregoing 

document with the clerk of the court for the Texas Court of Criminal Appeals, 

using the efile.txcourts.gov system. Via that system, a “Notice of Electronic 

Filing” was sent to Appellee’s appellate attorney of record, Dal Ruggles at 

dal@ruggleslaw.com. A copy was also sent by certified mail directly to Appellant,

James Weatherford, TDCJ # 01953853, Middleton Unit, 13055 F.M. 3422, 

Abilene, Texas 79601.

_/s/ John C. Prezas_______________

JOHN C. PREZAS