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

CLERKii 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 Honorabl e Rick Kennon
, 368 th Judicial District Court
, Williamson County, Texas.
Attorneys for the State

 M s. 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 C ounty, 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

................................ ................................ .................. 7iv 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 2 30 (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)

................................ ....... 41

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 as serting that there are no meritorious grounds for this appeal

. Appellant himself filed a Pro Se brief on July 14, 2015 alleging t hat 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 testif y 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 recor d

which is now before the court. The motion for new trial, f iled August 21, 20 14 by
appellant only claimed that the verdict was contrary to the law and the evidence

. C.R. vol. 1 pp. 10 4

- 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 y ou're going to enter a plea and then we're going to hav e a sentencing hearing in front of me? THE DEFENDANT: Yes, sir, Your Honor. THE COURT: Is that what you wan t to do? THE DEFENDANT: Yes, sir, Your Honor. THE CO URT: Okay. So we're going to go through all these this

m orning. And you understand that if you enter your ple a 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 w ant 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 wai ving 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 differen t 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 stand ard 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 , 9884

S.W.2d 230, 232 (Tex. Crim. App. 1999); Ex par te 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 r easonable 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
preponde rance 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, t he Court of
Criminal Appeals has repeatedly held that the appropriate or most preferred means
by which a defenda nt should raise a claim of ineffective assistance of counsel is by5

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 adequat ely reflect the failings of
trial counsel”).
In this case, Appellant has pointed to no evidence in t he 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 f iled August 21, 20 14 does not allege
ineffective assistance of counsel, and no facts to that end were developed. See C.R.
vol. 1 pp. 104

- 106. Further, t he facts that are in the record indicate that Appe llant
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 p leading guilty6

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 pe rmit Dal Ruggles
to withdraw as ap pellate 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

C ERTIFICATE 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