THE COURT OF CRIMINAL APPEALS OF TEXAS

ERIK WHITE, §

APPELLANT §

§

v. § No. ________________

§

THE STATE OF TEXAS, §

APPELLEE §

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW OF THE 

DECISION OF THE COURT OF APPEALS FOR THE SECOND DISTRICT OF 

TEXAS IN CAUSE NUMBERS 02-14-00320-CR, 02-14-00321-CR, 02-14-

00322-CR AND 02-14-00323-CR AFFIRMING THE DECISION IN CAUSE 

NUMBERS 1316391D, 1330277D, 1330414D AND 1331423D IN THE 371ST

JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS THE 

HONORABLE MOLLEE WESTFALL, PRESIDING.

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

Barry J. Alford

State Bar No. 00783534

1319 Ballinger Street

Ft. Worth, Texas 76102

Telephone: (817) 335-5229

Facsimile: (817) 335-4944

E-mail: barryalford13@gmail.com

Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL

1. Mr. Erik White, Defendant in the trial court, Appellant in this appeal, 

TDC #01948718, 3899 Highway 98, Barry B. Telford Unit, New Boston, Texas 

75570.

2. Hon. Mollee Westfall, presiding Judge in the trial court, 371st Judicial 

District Court of Tarrant County, Texas, 401 West Belknap Street, Fort Worth, 

Texas 76196.

3. Hon. Christy Jack, Hon. Kelly Loftus and Hon. Katie A. Woods, 

Assistant Criminal District Attorneys, Counsel for the State in the trial court, 401 

West Belknap Street, Fort Worth, Texas 76196.

4. Hon. David L. Richards, Counsel for Appellant at trial, 3001 W. 5th

Street, Suite 800, Fort Worth, Texas 76107. 

5. Hon. Barry Alford, Counsel for the Appellant on appeal, 1319 Ballinger

Street, Fort Worth, Texas 76102.

6. Hon. Debra Windsor, Assistant Criminal District Attorney, Counsel for 

the State on appeal, 401 West Belknap Street, Fort Worth, Texas 76196.

i
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...........................................................i

TABLE OF CONTENTS ........................................................................................ ii

INDEX OF AUTHORITIES .................................................................................. iii

STATEMENT REGARDING ORAL ARGUMENT .............................................iv

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

STATEMENT OF THE PROCEDURAL HISTORY .............................................2

QUESTION PRESENTED FOR REVIEW .............................................................4

I. DID THE COURT OF APPEALS PROPERLY DETERMINE THAT 

APPELLANT’S TRIAL COUNSEL WAS NOT INEFFECTIVE BY FAILING

TO REQUEST THAT THE TRIALS OF THE CO DEFENDANTS BE 

SEVERED AND THAT APPELLANT BE GIVEN A SEPARATE TRIAL 

PURSUANT TO TEX. CODE CRIM PROC. 36.09 AND WAS ALSO NOT 

INEFFECTIVE BY FAILING TO INQUIRE FURTHER AS TO THE TRIAL 

COURT’S RELATION TO A COMPLAINING WITNESS AND WHETHER 

THE TRIAL COURT JUDGE SHOULD BE RECUSED.

REASONS FOR REVIEW AND ARGUMENTS AND AUTHORITIES .............5

PRAYER FOR RELIEF .........................................................................................15

CERTIFICATE OF SERVICE ..............................................................................16

OPINION OF THE COURT OF APPEALS .........................................EXHIBIT A

ii
INDEX OF AUTHORITIES

Bone v. State, 

77 S.W.3d 828, 833 (Tex. Crim. App. 2002)............................................7, 8, 12, 13

Garcia v. State,

57 S.W.3d 436 (Tex. Crim. App. 2001)..............................................................7, 12

Goodspeed v. State,

187 S.W.3d 390 (Tex. Crim. App. 2005) .......................................6, 8, 9, 11, 13, 14

Jaynes v. State,

216 S.W.3d 839 (Tex. App. – Corpus Christi 2006, no pet.) ...................8, 9, 13, 14

McMann v. Richardson,

397 U.S. 759, 90 S.Ct 1441, 25 L.Ed.2d 763 (1970)..........................................7, 12

Rylander v. State,

101 S.W.3d 107 (Tex. Crim. App. 2003)............................................................7, 12

Strickland v. Washington, 

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ..................6, 8, 9, 11, 13, 14

Thompson v. State,

9 S.W.3d 808 (Tex. Crim. App. 1999) ...............................................................7, 12

Tong v. State,

25 S.W.3d 707 (Tex. Crim. App. 1999)..............................................................8, 13

STATUTES, CODES, AND RULES

Tex. Code Crim. Proc. art. 36.09 .............................................................................5

Tex. Penal Code, § 29.03 .........................................................................................1

Tex. Penal Code § 30.02 (c) (2) ...............................................................................1

Tex. R. App. Proc. 66.3(f) .......................................................................................iv

U.S. Const. amend. VI ..................................................................................7, 12, 14

iii
STATEMENT REGARDING ORAL ARGUMENT

This case addresses important issues regarding whether the Court of 

Appeals has so far departed from the accepted and usual course of judicial 

proceedings as to call for an exercise of this Court’s power of supervision. Tex. R. 

App. P., Rule 66.3(f). Appellant argues that the Court of Appeals erred by holding 

that they cannot infer ineffective assistance of counsel and that counsel’s failure to 

object or request a severance was not so outrageous that no competent attorney 

would have engaged in it. Further, because the record does not offer an 

explanation for failing to seek a severance, the Court presumes that trial counsel 

made all significant decisions in the exercise of reasonable judgment. Also, they 

concluded that competent counsel could have reasonably credited and relied on the 

trial judge’s representations that her association with the complaining witness was 

limited and that her sentencing decision would not be impacted by that 

association. Therefore, trial counsel’s unexplained decision to not inquire further 

about the association was not so outrageous that no competent attorney would 

have made the same decision.

Because of these important issues, oral argument will greatly aid the Court 

and should be granted.

iv
THE COURT OF CRIMINAL APPEALS OF TEXAS

ERIK WHITE, §

APPELLANT §

§ No. ________________

v. §

§

THE STATE OF TEXAS, §

APPELLEE §

APPELLANT’S PETITION FOR DISCRETIONAR REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Appellant, through counsel, files this Petition for Discretionary Review 

pursuant to Tex. R. App. P., Rules 66 and 68 on behalf of Appellant urging that 

this Court grant his relief on appeal from the judgment of the Court of Appeals in 

the Second District of Texas in cause numbers 02-14-00320-CR, 02-14-00321-

CR, 02-14-00322-CR and 02-14-00323-CR from convictions obtained in the 371st

Judicial District Court of Tarrant County, Texas.

STATEMENT OF THE CASE

This case addresses whether Appellant is entitled to relief from his two 

convictions for Aggravated Robbery with a Deadly Weapon (Texas Penal Code §

29.03) and his two convictions for Burglary of a Habitation (Texas Penal Code §

30.02 (c) (2)). Specifically, Appellant contends that the Court of Appeals erred in 

finding that trial counsel was not ineffective in not seeking a severance in 

Appellant’s trial from that of his co-defendant and, further, that trial counsel was 

not ineffective in not seeking to have the trial court judge recused based on her 
2

relationship with one of the complaining witnesses against Appellant. It is for 

these reasons that Appellant seeks relief.

STATEMENT OF PROCEDURAL HISTORY

Appellant was charged with two Burglary of a Habitation charges, alleged 

to have been committed on or about February 25, 2013 and two charges of 

Aggravated Robbery with a Deadly Weapon, alleged to have been committed on 

or about June 9, 2013 and June 11, 2013. Through counsel, Appellant entered a 

plea of guilty to all four charges and had the Court assess punishment. After 

hearing the punishment evidence, the Court found him guilty and sentenced him to 

twenty (20) years in the Institutional Division of the Texas Department of 

Criminal Justice on the two Burglary of a Habitation charges and life in the 

Institutional Division of the Texas Department of Criminal Justice on the two 

Aggravated Robbery with a Deadly Weapon charges.

Appellant filed timely notice of appeal on all four charges on or about 

August 14, 2014 and the cases were sent to the Court of Appeals for the Second 

District of Texas. These cases were submitted without oral argument on or about 

June 2, 2015. On or about July 30, 2015, the Court of Appeals affirmed the 

judgment of the trial court, holding that: 

1. The Court of Appeals cannot infer ineffective assistance of counsel 

and that counsel’s failure to object or request a severance was not so outrageous 
3

that no competent attorney would have engaged in it. Further, because the record 

does not offer an explanation for failing to seek a severance, the Court presumes 

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

judgment; and

2. The Court of Appeals concluded that competent counsel could have 

reasonably credited and relied on the trial judge’s representations that her 

association with the complaining witness was limited and that her sentencing 

decision would not be impacted by that association. Therefore, trial counsel’s 

unexplained decision to not inquire further about the association was not so 

outrageous that no competent attorney would have made the same decision.
4

QUESTION PRESENTED FOR REVIEW

I.

DID THE COURT OF APPEALS PROPERLY DETERMINE THAT 

APPELLANT’S TRIAL COUNSEL WAS NOT INEFFECTIVE BY FAILING 

TO REQUEST THAT THE TRIALS OF THE CO DEFENDANTS BE 

SEVERED AND THAT APPELLANT BE GIVEN A SEPARATE TRIAL 

PURSUANT TO TEX. CODE CRIM PROC. 36.09 AND WAS ALSO NOT 

INEFFECTIVE BY FAILING TO INQUIRE FURTHER AS TO THE TRIAL 

COURT’S RELATION TO A COMPLAINING WITNESS AND WHETHER 

THE TRIAL COURT JUDGE SHOULD BE RECUSED?
5

REASONS FOR REVIEW AND ARGUMENT AND AUTHORITIES

DID THE COURT OF APPEALS PROPERLY DETERMINE THAT 

APPELLANT’S TRIAL COUNSEL WAS NOT INEFFECTIVE BY 

FAILING TO REQUEST THAT THE TRIALS OF THE CO DEFENDANTS 

BE SEVERED AND THAT APPELLANT BE GIVEN A SEPARATE TRIAL 

PURSUANT TO TEX. CODE CRIM PROC. 36.09 AND WAS ALSO NOT 

INEFFECTIVE BY FAILING TO INQUIRE FURTHER AS TO THE 

TRIAL COURT’S RELATION TO A COMPLAINING WITNESS AND 

WHETHER THE TRIAL COURT JUDGE SHOULD BE RECUSED?

a. Failure to ask for severance of co-defendants

The Court of Appeals held that they cannot infer ineffective assistance of 

counsel and that counsel’s failure to object or request a severance was not so 

outrageous that no competent attorney would have engaged in it. Further, because 

the record does not offer an explanation for failing to seek a severance, the Court 

presumes that trial counsel made all significant decisions in the exercise of 

reasonable judgment. 

Appellant contends that his trial counsel was ineffective because counsel 

failed to request that the Court sever the punishment hearings of Appellant and his 

co-defendant. Two or more co-defendants who are jointly or separately indicted 

or complained against for the same offense or any offense growing out of same 

transaction may be, in the discretion of the Court, tried jointly or separately as to 

one or more defendants. Tex. Code Crim. Proc. art. 36.09. However, it is 
6

incumbent upon trial counsel to request such a severance prior to trial in order to 

protect the rights of Appellant.

As a result, Appellant’s trial counsel was constitutionally ineffective and, 

but for his trial counsel’s actions, a reasonable probability existed that the result of 

the proceeding would have been different. To establish ineffective assistance of 

counsel, a defendant must show that: (1) his attorney’s representation fell below 

an objective standard of reasonableness; and (2) there is a reasonable probability 

that, but for his attorney’s error, the result of the proceeding would have been 

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

Strickland v. Washington, 466 U.S. 668, 684, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984).

A claim of ineffective assistance of counsel must be “firmly founded in the 

record” and “the record must affirmatively demonstrate” the meritorious nature of 

the claim. Goodspeed v. State, 187 S.W.3d at 392. Direct appeal is usually an 

inadequate vehicle for raising such a claim because the record is generally 

underdeveloped. Id. This is true with regard to the question of deficient 

performance in which counsel’s conduct is reviewed with great deference, without 

the distorting effects of hindsight where counsel’s reasons for failing to do 

something do not appear in the record. Id.
7

Trial counsel should ordinarily be afforded with an opportunity to explain 

his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 

107, 111 (Tex. Crim. App. 2003). Absent such an opportunity, an appellant court 

should not find deficient performance unless the challenged conduct was “so 

outrageous that no competent attorney would have engaged in it.” Garcia v. State, 

57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

The Sixth Amendment to the United States Constitution guarantees the 

right to reasonably effective assistance of counsel in criminal prosecutions. U.S. 

Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 777 n. 14, 90 S.Ct. 

1441, 25 L.Ed.2d 763 (1970). The standard of proof necessary to establish an 

ineffective assistance of counsel claim is based upon a preponderance of the 

evidence. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson 

v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A review of the record 

indicates that Appellant’s trial counsel’s failure to inquire of potential jurors as to 

this crucial element of the offense fell below the standard as set forth in 

Strickland.

No matter the strength of weakness of the State’s case or trial strategy, trial 

counsel’s decision to fail to request severance of the two co-defendant’s 

punishments hearings was devastating on a review of the record in this case.
8

As a result, the first prong of the Strickland test, under a preponderance of 

the evidence test has been met by a review of what appears “firmly within the 

record.” Goodspeed v. State, 187 S.W.3d at 392. Even under a highly deferential 

review of the defense counsel’s actions, the performance fell below an objective 

standard of reasonableness. Bone v. State, 77 S.W.3d at 833; Tong v. State, 25 

S.W.3d 707, 712 (Tex. Crim. App. 2000).

Moving on to the second prong of the Strickland test, a review of the record 

based on the trial counsel’s inaction therefore shows that, but for this failure to act, 

a probability exists that the result of the proceeding would be different. Strickland 

v. Washington, 466 U.S. at 684; Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App. 

– Corpus Christi 2006, no pet.). It is reasonable to believe that, given the 

participation of Appellant in the offense for which he was convicted as compared 

to his co-defendants, his strategy for defending himself at punishment would vary 

greatly with that of his co-defendants.

In fact, while testifying on his own behalf at punishment, Appellant made it 

clear how his role differed from that of his co-defendants:

MR. RICHARDS: In what respect is he [Mr. Burns] the 

reason that you got into this situation in the first place?

MR. WHITE: Because he was the – the main party, I 

would say.
9

MR. RICHARDS: Well then, that gets back to what I was 

originally asking you. As far as who was the leader and who were the 

follower, you’re now saying he was – he was the leader. He’s the one 

that thought this up?

MR. WHITE: Yes, sir.

R. III-199-200.

In sum, a review of the record in this case shows that each co-defendant had 

an entirely different level of involvement in the cases for which Appellant pled 

guilty and, at a minimum, trial counsel should have made a motion that each codefendant’s punishments hearings should be severed. A review of the record 

based on the inactions of trial counsel therefore shows that, but for his 

ineffectiveness, a probability does exist that the result of this proceeding would be 

different. Goodspeed v. State, 187 S.W.3d at 392; Strickland v. Washington, 466 

U.S. at 684; Jaynes v. State, 216 S.W.3d at 851. For these reasons, the Court 

should grant review on this issue.

b. Failure to request that the trial court judge be recused

The Court of Appeals further held that competent counsel could have 

reasonably credited and relied on the trial judge’s representation that her 

association with the complaining witness was limited and that her sentencing 

decision would not be impacted by that association. Therefore, trial counsel’s 
10

unexplained decision to not inquire further about the association was not so 

outrageous that no competent attorney would have made the same decision.

Prior to the punishment proceedings, the trial Court informed all parties 

involved that she was acquainted with one of the complaining witnesses in the 

cases over which she was about to preside. However, after receiving this 

information, counsel for Appellant failed to inquire further whether this could 

possibly impact the rights of Appellant by going further at this hearing. An 

excerpt of that hearing is as follows:

THE COURT: And as to both attorneys, the Court has also 

communicated with all parties, I believe it was yesterday, by e-mail, or 

maybe the day before, that the Court had received information that one 

of the injured parties who – in a burglary, who would be testifying 

today, was someone who was known to this Court, to the Judge 

personally, from church. Not known well or a person with whom the 

Court has – this Judge has socialized, but I do know this person from 

church. And both Mr. Richards and Mr. McKinney are aware of that 

fact and have decided to proceed with that fact known and understood.

MR. MCKINNEY: That is correct.

MR. RICHARDS: Yes, Your Honor.
11

THE COURT: And the Court will not be taking any 

personal association or knowledge of a person involved in this case 

into account to either increase or decrease the sentence, will not have 

an impact on this Court’s decision. 

R. III-12. 

However, despite the Court’s assurances, it is incumbent upon trial counsel 

to inquire further into this matter given the relationship that a complaining 

witnesses’ testimony can bear on the punishment assessed by the trial Court. As a 

result, Appellant’s trial counsel was constitutionally ineffective and, but for his 

trial counsel’s actions, a reasonable probability existed that the result of the 

proceeding would have been different. To establish ineffective assistance of 

counsel, a defendant must show that: (1) his attorney’s representation fell below 

an objective standard of reasonableness; and (2) there is a reasonable probability 

that, but for his attorney’s error, the result of the proceeding would have been 

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

Strickland v. Washington, 466 U.S. 668, 684, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984).

A claim of ineffective assistance of counsel must be “firmly founded in the 

record” and “the record must affirmatively demonstrate” the meritorious nature of 

the claim. Goodspeed v. State, 187 S.W.3d at 392. Direct appeal is usually an 
12

inadequate vehicle for raising such a claim because the record is generally 

underdeveloped. Id. This is true with regard to the question of deficient 

performance in which counsel’s conduct is reviewed with great deference, without 

the distorting effects of hindsight where counsel’s reasons for failing to do 

something do not appear in the record. Id.

Trial counsel should ordinarily be afforded with an opportunity to explain 

his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 

107, 111 (Tex. Crim. App. 2003). Absent such an opportunity, an appellant court 

should not find deficient performance unless the challenged conduct was “so 

outrageous that no competent attorney would have engaged in it.” Garcia v. State, 

57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

The Sixth Amendment to the United States Constitution guarantees the 

right to reasonably effective assistance of counsel in criminal prosecutions. U.S. 

Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 777 n. 14, 90 S.Ct. 

1441, 25 L.Ed.2d 763 (1970). The standard of proof necessary to establish an 

ineffective assistance of counsel claim is based upon a preponderance of the 

evidence. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson 

v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A review of the record 

indicates that Appellant’s trial counsel’s failure to inquire of potential jurors as to 
13

this crucial element of the offense fell below the standard as set forth in 

Strickland.

No matter the strength of weakness of the State’s case or trial strategy, trial

counsel’s decision not to pursue a hearing into this matter was devastating on a 

review of the record in this case. At the very least, counsel should have called the 

complainant as a witness to inquire of her relationship with the trial Court.

As a result, the first prong of the Strickland test, under a preponderance of 

the evidence test has been met by a review of what appears “firmly within the 

record.” Goodspeed v. State, 187 S.W.3d at 392. Even under a highly deferential 

review of the defense counsel’s actions, the performance fell below an objective 

standard of reasonableness. Bone v. State, 77 S.W.3d at 833; Tong v. State, 25 

S.W.3d 707, 712 (Tex. Crim. App. 2000).

Moving on to the second prong of the Strickland test, a review of the record 

based on the trial counsel’s inaction therefore shows that, but for this failure to act, 

a probability exists that the result of the proceeding would be different. Strickland 

v. Washington, 466 U.S. at 684; Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App. 

– Corpus Christi 2006, no pet.). It is reasonable to believe that, given the Court’s 

familiarity with a key witness for the State and despite assurances to the contrary, 

it is possible that this previous knowledge by the Court could unfairly prejudice 

the Appellant.
14

In sum, counsel for Appellant, upon hearing that a relationship existed 

between the trial Court and a complainant, immediately requested a hearing and 

called the complainant as a witness to inquire further into this relationship. 

Counsel for Appellant should have also inquired further from the Court as to the

extent and duration of this relationship. A review of the record based on the 

inactions of trial counsel therefore shows that, but for his ineffectiveness, a 

probability does exist that the result of this proceeding would be different. U.S.

Const., amend VI, Goodspeed v. State, 187 S.W.3d at 392; Strickland v. 

Washington, 466 U.S. at 684; Jaynes v. State, 216 S.W.3d at 851. For these 

reasons, the Court should grant review on this issue.
15

PRAYER FOR RELIEF

Appellant prays that this Court grant Appellant’s petition for discretionary 

review and reverse the Court of Appeals and remand this cause of the appropriate 

proceedings and remedies offered under the law.

Respectfully submitted, 

____/s/ Barry J. Alford____ 

Barry J. Alford

State Bar No. 00783534

1319 Ballinger Street

Ft. Worth, Texas 76102

Telephone: (817) 335-5229

Facsimile: (817) 335-4944

E-mail: barryalford13@gmail.com
16

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing Petition for

Discretionary Review was this 18th day of August, 2015 delivered by e-mail to 

Hon. Debra Windsor, Assistant Criminal District Attorney, counsel for the State, 

401 W. Belknap Street, Tim Curry Justice Center, Fort Worth, Texas 76196.

_____/s/ Barry J. Alford_____ 

Barry J. Alford

Attorney for Appellant

CERTIFICATE OF TYPEFACE AND WORD COUNT COMPLIANCE

This document complies with the typeface requirements of Tex. R. App. 

Proc. 9.4(e) because it has been prepared in a conventional typeface no smaller 

than 14 point for text and 12 point for footnotes. This document also complies 

with the word count limitations of Tex. R. App. Proc. 9.4(i), if applicable, because 

it contains 2,054 words, excluding any parts exempted by Tex. R. App. Proc. 

9.4(i)(1).

_____/s/ Barry J. Alford_____ 

Barry J. Alford

Attorney for Appellant