No. 03-14-00559-CR

______________________________________________________

 

In The Court of Appeals 

For The Third Court of Appeals District 

Austin, Texas

______________________________________________________

Zane Lynn Barton,

Appellant,

v. 

The State of Texas,

Appellee.

______________________________________________________

ON APPEAL FROM THE 274th DISTRICT COURT, HAYS

COUNTY, TEXAS TRIAL COURT CAUSE NO. CR-13-0614

______________________________________________________

BRIEF FOR APPELLANT

ORAL ARGUMENT REQUESTED

______________________________________________________

Amanda Erwin

State Bar No. 24042936

109 East Hopkins Street, Suite 200

San Marcos, Texas 78666

Telephone: (512) 938-1800

Telecopier: (512) 938-1804

amanda@theerwinlawfirm.com

Counsel for Zane Lynn Barton

ACCEPTED

03-14-00559-CR

4993457

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/22/2015 4:04:26 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/22/2015 4:04:26 PM JEFFREY D. KYLE Clerk
ii

Identity of Parties and Counsel

Appellant:

Zane Lynn Barton

Appellate Counsel: 

Amanda Erwin

The Erwin Law Firm, L.L.P.

109 East Hopkins Street, Suite 200

San Marcos, Texas 78666

Telephone: (512) 938-1800

Telecopier: (512) 938-1804

Trial Counsel:

Jesus “Gabriel” Hernandez

507th West 10th Street

Austin, Texas 78701

Telephone: (512) 964-9424

Tracy Reyes Franklin

Behr law Firm

1920 Corporate Drive, Suite 108A

San Marcos, Texas 786666

Telephone: (512) 353-5555

Appellee:

The State of Texas

Appellate Counsel:

Laura Garcia and Brian Erskine

Hays County District Attorney’s Office

712 Stagecoach Trail, Suite 2057

San Marcos, Texas 78666

Telephone: (512) 393-7600
iii

Trial Counsel:

Laura Garcia and Brian Erskine

Hays County District Attorney’s Office

712 Stagecoach Trail, Suite 2057

San Marcos, Texas 78666

Telephone: (512) 393-7600

Trial Judge:

Hon. Gary L. Steel
iv

Table of Contents

 Page

Identity of Parties and Counsel..............................................ii

Table of Contents..............................................................iv

Index of Authorities...........................................................v

Statement of Case..............................................................1

Statement of Issues ............................................................1

Oral Argument Requested.....................................................2

Statement of Facts..............................................................2

Summary of the Argument...................................................11

Pint of Error One..............................................................11

Standard of Review...........................................................11

Acts of Deficient Performance...............................................15

Prejudice........................................................................20

Prayer............................................................................23

Certificate of Service..........................................................25

Certificate of Word Limit Compliance......................................26
v

Index of Authorities

Cases Page

Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App. 2005)...............20

Bell v. Cone, 535 U.S. 685 (2000)..........................................13

Bird v. State, 527 S.W.2d 891, 893 (Tex.Crim.App. 1975).............20

Burnett v. State, 88 S.W.3d 633 (Tex.Crim.App. 2002)...................22

Collier v. Turpin, 155 F.3d 1277 (11th Cir. 1998).........................13

Ex parte Argent, 393 S.W.3d 781 (Tex.Crim.App. 2013)...............18 

Ex parte Martinez, 195 S.W. 3d 713 (Tex.Crim.App. 2006)...........15 

Hardwick v. Crosby, 320 F.3d 1127 (11th Cir. 2003)....................14

Jackson v. State, 766 S.W.2d 504 (Tex.Crim.App. 1985)...............15

Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984).....................14

McMann v. Richardson, 397 U.S. 759 (1970)............................12

Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999)...........................14

O’Neal v. McAninch, 513 U.S. 432 (1995)................................22

Profitt v. Waldron, 831 F.2d 124 (5th Cir. 1987).........................14

Strickland v. Washington, 466 U.S. 668 (1984)............................12

United States v. Dominguez Benitez, 542 U.S. 74 (2004)................13

Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000)...................14

Wiggins v. Smith, 539 U.S. 510 (2003)....................................13
vi

Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986)..........12

Statutes

TEX. R. APP. 21.4...........................................................18
1

Statement of the Case

This is an appeal from a criminal proceeding. The Appellant, Zane 

Barton, is currently incarcerated. On August 7, 2013, a Hays County grand 

jury returned an indictment charging Mr. Barton with Aggravated Assault 

Serious Bodily Injury, enhanced to a first-degree felony for using a deadly 

weapon during the commission of the assault, and for committing family 

violence. (1 CR 12). On August 19, 2014, after being duly selected, a jury 

was sworn. (3 RR 26). Mr. Barton entered a plea of not guilty to the 

offense as alleged in the indictment. (3 RR 32). The jury subsequently 

found Mr. Barton guilty of the offense as alleged in the indictment. (1 CR

88). The jury assessed punishment at life in the Institutional Division of the 

Texas Department of Criminal Justice, and further assessed a ten thousand 

(10,000.00) dollar fine. (1 CR 101). Mr. Barton was sentenced in opened 

court on August 21, 2014. (1 CR 102). The trial court certified Mr. 

Barton’s right to appeal. (1 CR 104). The Appellant’s notice of appeal 

was timely filed. (1 CR 106). 

Statement of the Issues

Point of Error One:

The Appellant was denied the effective assistance of counsel as a 

result of the Appellant’s trial counsel’s multiple acts of deficient 

performance.
2

Oral Argument Requested

The Appellant respectfully request that oral argument be granted in this 

case. 

Statement of Facts

On August 19, 2014, after being duly selected, a jury was sworn. (3 

RR 26). Mr. Barton entered a plea of not guilty to the offense as alleged in 

the indictment. (3 RR 32). The State made an opening statement to the 

jury, as did the Appellant’s trial counsel. (3 RR 32-36). 

The State called Matthew Daenzer, a police officer with the San 

Marcos Police Department, as its first witness. (3 RR 37-38). Officer 

Daenzer testified that on April 23, 2013, he was dispatched to the Central 

Texas Medical Center for a possible robbery. (3 RR 39-41). While at the 

Hospital, Officer Daenzer spoke with the alleged victim in the case, Stefanie 

Hunt. (3 RR 20). Officer Daenzer testified that he observed multiple 

bruises on Ms. Hunt’s body, cuts on Ms. Hunt’s cheeks, and a large 

laceration across Ms. Hunt’s throat. (3 RR 42). The State admitted 

photographs that Officer Daenzer took of Ms. Hunt’s injuries. (3 RR 42-43). 

Officer Daenzer further testified that Ms. Hunt relayed to him that she 

received the injuries from a black male mugging her. (3 RR 53). 

The State then called Rich Mizanin, a patrol sergeant with the San 
3

Marcos Police Department, who was the lead detective on the case against 

Mr. Barton. (3 RR 36-37). Sergeant Mizanin testified that detectives with 

the Hays County Sheriff’s office conducted an investigation at the Wal-Mart

where Ms. Hunt claimed she was attacked. (3 RR 80-81). While conducting 

the investigation, the detectives were approached by Mr. Barton, who stated 

that his wife was missing. (3 RR 80-81). Mr. Barton was transported to the 

San Marcos Police Department so he could be interviewed. (3 RR 83). 

Detective Mizanin testified that during the interview, Mr. Barton was 

extremely fidgety and uncomfortable, and that he was mumbling things to 

himself while he was alone. (3 RR 85). Detective Mizanin further stated 

that Mr. Barton asked if he was going to be arrested, and that when an 

officer who walked by with a ticket book, Mr. Barton questioned him, “is 

that for me?” (3 RR 85). Mr. Barton relayed to officers that he was 

working construction from 9:30 in the evening to 5:30 in the morning the 

evening in question. (3 RR 67). Mr. Barton further relayed that he and Ms. 

Hunt had been living under a bridge in San Marcos, and described the area. 

(3 RR 69). 

Sergeant Mizanin went to Brackenridge Hospital, and met with Ms. 

Hunt, who told Sergeant Mizanin that a black male assaulted her. (3 RR 76). 

Sergeant Mizanin testified that it appeared to him that the word “ZANE” had 
4

been cut into the Ms. Hunt’s skin on her back and leg. (3 RR 79). 

Sergeant Mizanin spoke with a black male, who was staying at a 

Budget Inn in New Braunfels, Texas, and eliminated him as a suspect in the 

case. (3 RR 83-84). Next, Sergeant Mizanin reviewed all of the Wal-Mart

surveillance tapes, and was unable to find any footage showing Ms. Hunt 

being assaulted. (3 RR 85-86).

Approximately a week later, Sergeant Mizanin received a telephone 

message from Mr. Barton, questioning what was going on with the case, as

well as a telephone message from Ms. Hunt’s father, Keith Hackenburg. (3 

RR 88-89). Sergeant Mizanin made contact with Mr. Hackenberg, who 

advised that Ms. Hunt wanted to tell law enforcement the truth about what 

had happened to her. (3 RR 89). Ms. Hunt provided a written statement, as 

well as an oral statement over the telephone, describing Mr. Barton as the 

offender. (3 RR 89). 

After speaking with Ms. Hunt, Sergeant Mizanin went out to the scene 

where Ms. Hunt described the assault to have occurred, and took 

photographs. (3 RR 90-100). Sergeant Mizanin attempted to make contact 

with the man who found Ms. Hunt on the side of the road and took her to the 

Central Texas Medical Center, but was unable to locate the subject. (3 RR 

104-105). 
5

The State then called Keith Hackenburg, Ms. Hunt’s Father, as a 

witness. (3 RR 129). Mr. Hackenberg testified that he and his wife went to 

pick Ms. Hunt up from the Hospital in Austin and brought Ms. Hunt back to 

their home in Hockley, Texas. (3 RR 130-131). Mr. Hackenburg testified 

that several days after bringing his daughter home, she opened up and told 

him that Mr. Barton assaulted her. (3 RR 133-134).

The State then called Ms. Stefanie Hunt, the alleged victim in the case. 

(3 RR 143). Ms. Hunt testified that she and Mr. Barton first dated back in 

high school. (3 RR 143). Ms. Hunt testified that she reconnected with Mr. 

Barton on Facebook sometime in 2012. (3 RR 144). Sometime after 

reconnecting, Ms. Hunt left her home in Hockley, Texas with Mr. Barton to 

go to Llano, Texas. (3 RR 146). The two used Ms. Hunt’s parent’s truck to 

travel, which eventually ran out of gas and was abandoned by them in 

Austin, Texas. (3 RR 146). The two made their way to New Braunfels, 

Texas on foot, staying under bridges or anywhere they could find. (3 RR 

147). At this time neither Ms. Hunt nor Mr. Barton were employed. (3 RR 

147). 

Ms. Hunt and Mr. Barton eventually ended up in San Marcos, Texas, 

after a police officer in New Braunfels dropped them off in the city limits. 

(3 RR 148). During their time in San Marcos, the two lived under a bridge 
6

with big white rocks. (3 RR 150). Ms. Hunt testified that her injuries were 

sustained form Mr. Barton assaulting her over a period of time. (3 RR 151). 

The alleged assault began after the two went to eat pizza at a Little 

Caesars, and Mr. Barton accused Ms. Hunt of looking at someone while 

inside of the restaurant. (3 RR 151-152). Mr. Barton first threw rocks at 

Ms. Hunt’s head, and then told Ms. Hunt to stand with her hands on the wall 

while Mr. Barton hit Ms. Hunt on her back and legs with a belt. (3 RR 153). 

Mr. Barton then hit Ms. Hunt with rocks again. (3 RR 155). Ms. Hunt 

managed to run off, and a police officer stopped on the side of the road, but 

instead of going with the police officer, Ms. Hunt went back to Mr. Barton. 

(3 RR 155). Mr. Barton then hit Ms. Hunt with is belt buckle all over Ms. 

Hunt’s body, including Ms. Hunt’s face and eyes. (3 RR 156, 159). Ms. 

Hunt sustained a gash to the top of her head from Mr. Barton throwing a 

rock at Ms. Hunt’s head. (3 RR 158-159). Mr. Barton cut Ms. Hunt’s hand 

with a box cutter, and told her that, “this is what it’s going to feel like.” 

(3 RR 161). Mr. Barton then cut X marks on Ms. Hunt’s cheeks with a box 

cutter, and stated, “do you think anybody is going to think you’re pretty 

now, do you think anybody is going to want you?” (3 RR 163). Mr. Barton 

then instructed Ms. Hunt to get on her hands and knees, and Mr. Barton cut 

Ms. Hunt’s neck. (3 RR 164). Mr. Barton handed Ms. Hunt his sweater to 
7

wrap around her neck so she wouldn’t lose too much blood. (3 RR 165). 

Ms. Hunt then went to sleep and woke up the next morning. (3 RR 

166). Mr. Barton asked Ms. Hunt if she needed to go the hospital, and she 

responded yes. (3 RR 168). Mr. Barton was crying, because he couldn’t go 

to the hospital with Ms. Hunt. (3 RR 168). Ms. Hunt told Mr. Barton that 

she would make something up about how she sustained her injuries, 

specifically, that a black man by the Wal-Mart mugged her. (3 RR 169). 

Ms. Hunt started walking down the road, and a man stopped in his 

vehicle and drove Ms. Hunt to the hospital. (3 RR 171). While at the 

hospital, Ms. Hunt allegedly told officers a fabricated story of how she 

sustained her injuries. (3 RR 171). Ms. Hunt’s family came and picked her 

up and brought her back to their home in Hockley, Texas. (3 RR 173). 

Eventually, Ms. Hunt told her family that Mr. Barton had assaulted her. (3 

RR 174). Ms. Hunt testified that she still has scars on her hand, her face, 

and her neck from the assault. (3 RR 175-176). 

On cross examination, Ms. Hunt testified that during the time she 

reconnected with Mr. Barton on Facebook that she was still married, but that 

her husband was in prison. (3 RR 179). After reconnecting, Ms. Hunt went 

to visit Mr. Barton in Whitesboro, Texas. (3 RR 182). Mr. Barton then 

came to Hockley, and met with Ms. Hunt’s parents to get permission for the 
8

two to leave together. (3 RR 183). Ms. Hunt’s husband was upset that Mr. 

Barton was with his wife in Hockley. (3 RR 185). 

Ms. Hunt testified that Mr. Barton and her self used drugs while they 

were staying in Llano, Texas. (3 RR 192). Ms. Hunt testified that she and 

Mr. Barton also drank together. (3 RR 194). Ms. Hunt further testified that 

she and Mr. Barton took meth together in a hotel in New Braunfels, Texas,

with two other people. (3 RR 194). 

Ms. Hunt agreed that at some point during the assault she ran away and 

made contact with an officer, but went back to Mr. Barton instead of getting 

help. (3 RR 203-204). 

The State then called Laurie Townsend, a nurse at the Central Texas 

Medical Center. (3 RR 208-209). Ms. Townsend testified that on April 23, 

2013, Ms. Hunt was her patient. (3 RR 210). Ms. Townsend testified that 

she considered Ms. Hunt’s injuries to be very dangerous. (3 RR 214). Ms. 

Townsend further testified that the injury on Ms. Hunt’s neck could create a 

substantial risk of death for Ms. Hunt, as well as disfigurement. (3 RR 214, 

215). On cross-examination, Ms. Townsend testified that Ms. Hunt listed 

the Appellant, Zane Barton, as her spouse and emergency contact. (3 RR 

231). 

The State then called Dr. Nicholas Nunez, an emergency medicine 
9

physician at The University Medical Center at Brackenridge. (4 RR 8). On 

April 23, 2013, Ms. Hunt was Dr. Nunez’s patient. (4 RR 9-10). Dr. Nunez 

testified that Ms. Hunt’s laceration on her neck created a substantial risk of 

causing death. (4 RR 12). Dr. Nunez further testified that a tool of some 

sort could only inflict Ms. Hunt’s laceration on her neck. (4 RR 17). 

The State and the Appellant’s trial counsel both rested their cases, and 

the State and the Defense then both closed their cases. (4 RR 31). The jury 

charge was read aloud in open court, and the State and Defense made 

closing arguments. (4 RR 34-68). The jury found the Appellant guilty as 

charged. (4 RR 70).

The punishment phase commenced, and Mr. Barton pled true to the 

enhancement paragraph in front of the jury, which then enhanced the 

punishment range in the case to 15 to 99 years. (4 RR 74). The State made 

an opening statement. (4 RR 74-76). 

The State then called Ms. Hunt, the alleged victim. (4 RR 77). Ms. 

Hunt detailed to the jury the first time Mr. Barton hit her, which was when 

they were dating in high school. (4 RR 79). Ms. Hunt dropped out of high 

school and Mr. Barton and her moved out of Hockley, Texas. (4 RR 81). 

During this time period the two were living in Ms. Hunt’s vehicle. (4 RR 

81). Ms. Hunt testified that Mr. Barton would burn Ms. Hunt’s arms with 
10

cigarettes and hit Ms. Hunt’s knees with five or ten pound barbells. (4 RR 

82). While Mr. Barton was at work, Mr. Barton made Ms. Hunt stay inside 

of her vehicle’s trunk. (4 RR 83). At some point, Mr. Barton got arrested, 

and Ms. Hunt went back to live with her family in Hockley, Texas. (4 RR 

85). 

Ms. Hunt then reconnected with Mr. Barton many years later through 

Facebook. (4 RR 86). Mr. Barton began getting physical with Ms. Hunt 

again, (4 RR 87). Ms. Hunt testified that at some point, Mr. Barton 

allegedly talked about killing someone to get his or her vehicle. (4 RR 99). 

The State then called Mr. Hackenberg, Ms. Hunt’s father. (4 RR 101).

The State rested, and the Defense announced to the jury and the trial 

court that Mr. Barton was going to testify, but questioned the trial court if 

they should proceed now or break for the day. (4 RR 113). The trial court 

instructed the jury that they would break for the day and resume the 

punishment hearing in the morning. (4 RR 113-114). The next morning, 

the Defense stated that Mr. Barton was no longer going to testify to the jury, 

and rested its case. (5 RR 4, 9). 

The trial court read the charge of the court regarding punishment. (5 

RR 10). The State and the Defense made closing statements, and the jury 

subsequently sentenced the Appellant to life in the Texas Department of 
11

Criminal Justice, Institutional Division, and further assessed a ten thousand 

(10,000) dollar fine. (5 RR 13-35).

Summary of the Argument

The Appellant, Mr. Barton, contends that he was denied the effective 

assistance of counsel, as a result of his trial counsel’s multiple acts of 

deficient performance. Furthermore, the Appellant asserts that this denial of 

effective assistance of counsel resulted in prejudice. Mr. Barton seeks this

Honorable Court to reverse the judgment of conviction and/ or punishment 

below, or in the alternative, remand the case to the trial court to determine 

Mr. Barton's competency and/or sanity at the time of the commission of the 

offense, and/ or to determine whether trial counsel conveyed the plea offer to 

Mr. Barton.

Point of Error One

The Appellant was denied the effective assistance of counsel, as a 

result of the Appellant’s trial counsel’s multiple acts of deficient 

performance.

The Standard of Review

A defendant in a criminal case is entitled to effective assistance of 

counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). 

Furthermore, counsel must act within the range of competence demanded of 

counsel in criminal cases. McMann v. Richardson, 397 U.S. 759 (1970).
12

In Strickland v. Washington, the United States Supreme Court 

established the federal constitutional standard for determining whether 

counsel rendered reasonably effective assistance. Strickland v. Washington, 

466 U.S. 668 (1984). The defendant first must show that counsel’s 

performance was deficient; that counsel made errors so serious that he was 

not functioning as the “counsel” guaranteed the defendant by the Sixth 

Amendment. Id. at 687. Second, the defendant must show that the deficient 

performance prejudiced the defense; that counsel’s errors were so serious as 

to deprive the defendant of a fair trial with a reliable result. Id. at 692. The 

defendant must identify specific acts or omissions of counsel that are alleged 

not to have been the result of reasonable professional judgment. Id. at 690. 

The reviewing court must then determine whether, in light of all the 

circumstances, the identified acts or omissions were outside the range of 

professionally competent assistance. Id. Ultimately, the defendant must 

show that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been 

different. Id. at 694. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id.

Counsel’s performance is measured against an “objective standard of 

reasonableness under prevailing professional norms.” Wiggins v. Smith, 539 
13

U.S. 510, 527 (2003). The prejudice an applicant must show is by less than 

a preponderance of the evidence because “[t] he reasonable-probability 

standard is not the same as, and should not be confused with, a requirement 

that a defendant prove by a preponderance of the evidence that but for error 

things would have been different.” United States v. Dominguez Benitez, 542 

U.S. 74, 82 n. 9 (2004).

While the Appellant must overcome the “strong presumption” that 

counsel’s challenged conduct “might be considered sound trial strategy,” 

counsel may not insulate challenged conduct from review by claiming it was 

“strategic.” Bell v. Cone, 535 U.S. 685, 698 (2000). Whether counsel’s 

conduct was strategic is a question of fact, but whether it was objectively 

reasonable is a question of law, to which no deference is owed. Collier v. 

Turpin, 155 F.3d 1277, 1290 (11th Cir. 1998). As explained in Strickland, 

the issue of ineffective assistance of counsel is not a question of “basic, 

primary, or historical fact,” and “both the performance and prejudice 

components of the ineffectiveness inquiry are mixed questions of law and 

fact.” Strickland, 466 U.S. at 698. Moreover, strategic choices are entitled 

to deference only to the extent they are based on informed decisions. Id. at 

690-691. 
14

This Court is “not required to condone unreasonable decisions 

parading under the umbrella of strategy, or to fabricate tactical decisions on 

behalf of counsel when it appears on the face of the record that counsel 

made no strategic decision at all.” Moore v. Johnson, 194 F.3d 586, 604 (5th

Cir. 1999). See also Hardwick v. Crosby, 320 F.3d 1127, 1186 (11th Cir. 

2003) (“The mere incantation of ‘strategy’ does not insulate attorney 

behavior from review.”); Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 

1984) (“even deliberate trial tactics may constitute ineffective assistance of 

counsel if they fall outside the wide range of professionally competent 

assistance”); Washington v. Hofbauer, 228 F.3d 689, 704 (6th Cir. 2000) 

(“the label ‘strategy’ is not a blanket justification for conduct which 

otherwise amounts to ineffective assistance of counsel”); Profitt v. Waldron,

831 F.2d 1245, 1248 (5th Cir. 1987) (“This measure of deference [to a claim 

of trial strategy] must not be watered down into a disguised form of 

acquiescence.”). 

Lastly, it is possible that a single egregious error of omission or 

commission by appellant’s counsel constitutes ineffective assistance of 

counsel. Jackson v. State, 766 S.W.2d 504, 508 (Tex.Crim.App. 1985).
15

Acts of Deficient Performance

The first act of deficient performance is that Mr. Barton’s trial counsel 

failed to investigate Mr. Barton’s mental health in regards to his competency

and/or sanity to stand trial. 

One necessary facet of effective assistance of counsel is the 

investigation of the facts and law as applicable to the case; counsel has the 

duty in every case to make a reasonable investigation or a reasonable 

decision that an investigation is necessary. Strickland v. Washington, 466 

U.S. 668, 691 (1984). As the Texas Court of Criminal Appeals explained in 

Ex parte Martinez, “When assessing the reasonableness of an attorney’s 

investigation, a reviewing court must consider the quantum of evidence 

already known to counsel and whether the known evidence would lead a 

reasonable attorney to investigate further.” Ex parte Martinez, 195 S.W. 3d 

713, 721 (Tex.Crim.App. 2006). Here, trial counsel was deficient when he 

made an unreasonable decision to not investigate Mr. Barton’s mental 

health, because there was considerable evidence known to trial counsel that 

would lead a reasonable attorney to investigate further. Id. at 721. 

The Appellant had court appointed trial counsel prior to Mr. Hernandez 

being retained. (1 CR 18). The court appointed trial counsel had filed a 

motion for Mr. Barton to be evaluated for competency and sanity because 
16

there was evidence that would lead a reasonable attorney to investigate 

further into Mr. Barton’s mental health. (1 CR 15). Specifically, in the said 

motion, the court appointed trial counsel states that there was good cause for 

the filing the said motion, because Mr. Barton was prescribed psychotropic

medications, and further that it was evident from a review of the evidence 

that there existed valid questions regarding Mr. Barton’s mental health. (1 

CR 15). This motion was never ruled upon, because there is no order in the 

trial court’s file. (1 CR 15). 

The record below further reflects that Detective Mizanin testified that 

during his interview of Mr. Barton, Mr. Barton was extremely fidgety and 

uncomfortable, and that Mr. Barton was mumbling things to himself while 

he was alone. (3 RR 85). Detective Mizanin further stated that Mr. Barton 

asked if he was going to be arrested, and that when an officer who walked 

by with a ticket book, Mr. Barton questioned him, “is that for me?” (3 RR 

85). Detective Mizanin’s testimony indicates that Mr. Barton could be 

suffering from possible schizophrenia, because he was talking to himself, 

and could also be suffering from a paranoid personality disorder or another 

mental health issue because of the paranoid behavior Mr. Barton was 

exhibiting. (3 RR 85). 

Lastly, the fact that Mr. Barton and Ms. Hunt were living under a 
17

bridge in San Marcos, and were homeless during the time frame of the 

assault, is also a red flag that Mr. Barton may have mental health issues that 

need to be investigated. (3 RR 69). 

The record reflects that Mr. Barton received ineffective assistance of 

counsel below, when Mr. Barton’s trial counsel made the unreasonable 

decision to not assess Mr. Barton’s mental health, because there was 

considerable evidence that would lead a reasonable attorney to investigate 

further, including a previously filed motion that was never ruled upon

requesting that Mr. Barton’s mental health be evaluated. Id. at 721. 

The second act of deficient performance is that Mr. Barton’s trial 

counsel did not convey the plea offer to Mr. Barton. The record is void of 

any oral record or written record that Mr. Barton was made aware of the plea 

bargain in the case and the serious consequences of rejecting such plea 

bargain.

1

 (1 CR 1-114). 

Since the time period for a motion for new trial has lapsed, and it was 

not possible to ascertain this issue before reviewing the full record below, 

Appellant would respectfully request the Court to remand the case to the 

trial court on this issue so that a full record can be developed. TEX. R. APP. 

																																																							 1 Appellate	counsel	spoke	with	trial	counsel	and	was	informed	that	there	was	a	plea	

offer	of	25	years;	Mr.	Barton	was	never	made	aware	of	such	offer	until	

correspondence	with	appellate	counsel.
18

21.4. For, the Appellant contends that there is a reasonable probability that 

Mr. Barton would have accepted the plea offer, if trial council had not given 

ineffective assistance, the prosecution would not have withdrawn the offer, 

and the trial court would not have refused to accept plea bargain. Ex parte 

Argent, 393 S.W.3d 781, 784 (Tex.Crim.App. 2013). Mr. Barton contends 

that he received ineffective assistance of counsel below, when trial counsel 

failed to inform him of the plea offer. (1 CR 1-114). 

The last act of deficient performance below is that Mr. Barton’s trial 

counsel announced to the jury during the punishment phase of trial that Mr. 

Barton would testify, and then the next day did not have Mr. Barton testify. 

(4 RR 113). There is absolutely no possible trial strategy involved in this 

action. Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999). 

The record establishes that Mr. Barton’s trial counsel was calling Mr. 

Barton to testify in that very instant in time, but that the trial court recessed 

the case to the next day:

MS. GARCIA: No further witnesses. The State rests.

THE COURT: Is the Defense going to call any witnesses during 

punishment?

MR. HERNANDEZ: It’s going to be Mr. Barton, Your Honor, So 

we—I know we talked about the—we didn’t have a jury charge ready or a 
19

jury pattern ready and we weren’t going to give it to the jury today. I didn’t 

know if you want to break for the day and start again with my one witness in 

the morning before we got it to them.

THE COURT: Okay. Ladies and gentlemen, I am going to ahead and 

break for the day. (4 RR 113).

The above exchange reveals Mr. Barton’s trial counsels’ clear intention 

that he was going to put Mr. Barton on the stand in that very moment in 

time. (4 RR 113). The only reason that Mr. Barton did not testify before the 

jury is that the trial court recessed the proceedings to the next day. (4 RR 

113). The record does not contain any evidence that something had changed 

between the moment in time that trial counsel was prepared to put Mr. 

Barton on the stand and the next morning, when trial counsel did not put Mr. 

Barton on the stand; therefore there cannot be any strategy behind this 

action. (4 RR 113-118); (5 RR 9). The Appellant would contend that he 

was not provided effective assistance of counsel in the punishment phase 

due to trial counsel’s actions. Strickland v. Washington, 466 U.S. 668, 691

(1984). For, as the Texas Court of Criminal Appeals articulated in Andrews 

v. State, “When no reasonable trial strategy could justify the trial counsel’s 

conduct, counsel’s performance falls below an objective standard of 

reasonableness as a matter of law, regardless of whether the record 
20

adequately reflects the trial counsel’s subjective reason for acting as she 

did.” Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App. 2005). It is 

basic black letter law that the trial judge and the prosecutor are not allowed 

to call attention to a defendant’s failure to testify, therefore, it must follow 

that a defendant’s own trial counsel should in turn not clumsily highlight the 

defendant’s failure to testify. Bird v. State, 527 S.W.2d 891, 893 

(Tex.Crim.App. 1975).

Prejudice

The “prejudice” prong of Strickland requires this Court to determine 

whether counsel’s objectively deficient conduct highlighted above was 

sufficient to undermine its confidence in the verdict, that is, whether there is 

a reasonable probability that, but for this objectively deficient conduct, the 

result of the proceedings would have been different. Strickland v. 

Washington, 466 U.S. 668, 694 (1984); Kyles v. Whitley, 514 U.S. 419, 430 

(1995). The prejudice the Appellant must show is by less than a 

preponderance of the evidence because “[t]he reasonable-probability 

standard is not the same as, and should not be confused with, a requirement 

that the Appellant prove by a preponderance of the evidence that but for 

error things would have been different.” United States v. Dominguez 

Benitez, 542 U.S. 74, 82 n. 9 (2004). In assessing prejudice, this Court is 
21

obligated to consider the cumulative effect of the multiplicity of counsel’s 

errors demonstrated in the record below. Strickland v. Washington, 466 U.S. 

668, 690 (1984).

Regarding trial counsel’s failure to investigate Mr. Barton’s mental

health, there is a reasonable probability that if Mr. Barton’s mental health 

was assessed, that the case would never have gone to trial, that Mr. Barton 

could have raised the defense of insanity, or that Mr. Barton could have 

properly assisted trial counsel with defending the case after regaining 

competency; thus the result of the proceedings below would have been 

different. Strickland v. Washington, 466 U.S. 668, 694 (1984).

With regard to trial counsel’s failure to convey the plea offer to Mr. 

Barton, there is clearly a reasonable probability that the result of the 

proceedings below would have been different, because Mr. Barton would 

have entered into the plea agreement, and therefore would not have gone to 

trial and received a life sentence. Id. at 694.

Lastly, regarding the fact that the jury was told that they were going to 

hear from Mr. Barton during the punishment phase of trial, and then did not,

there is a reasonable probability that the result of the punishment 

proceedings would have been different if this had not occurred. Id. at 694. 
22

For, it cannot reasonably be argued that this action could be cured simply 

from the instruction given by the trial court in the punishment charge; trial 

counsel admitted to Mr. Barton’s egregious behavior in the cross

examination of the victim, and in closing statements, and the fact that the 

jury anticipated during an entire overnight recess that they would hear some 

sort of remorse or explanation from Mr. Barton the next morning, and then 

did not, clearly only served to fuel the jury’s loathing of Mr. Barton. (4 RR 

94); (5 RR 20); Id. at 694.

The present case presents in compelling terms “a breakdown in the 

adversarial process that our system counts on to produce just results.” Id. at 

696. “When a [reviewing] court is in grave doubt as to the harmlessness of 

an error that affects substantial rights, it should grant relief.” O’Neal v. 

McAninch, 513 U.S. 432, 445 (1995); see also Burnett v. State, 88 S.W.3d 

633, 638 (Tex.Crim.App. 2002). (“In cases of grave doubt as to 

harmlessness the [Appellant] must win.”). Because this Court must have 

such grave doubt about whether the Appellant’s trial counsels’ multiple 

instances of objectively deficient conduct contributed to Mr. Barton’s 

conviction and punishment, it must grant Mr. Barton a new trial. O’Neal v. 

McAninch, 513 U.S. 432, 445 (1995).
23

For these reasons Mr. Barton would respectfully request the Court to 

hold that the cumulative effect of his trial counsel’s errors caused “a 

breakdown in the adversarial process that our system counts on to produce 

just results” sufficient “to undermine this Court’s confidence in the 

outcome” of the Appellant’s trial. Strickland v. Washington, 466 U.S. 668, 

696 (1984). Mr. Barton contends that if his trial counsel had discharged his 

duty below, there is a reasonable probability the result of the proceedings

would have been different. Id. at 694.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Zane Barton, prays this 

Honorable Court will reverse the judgment of conviction and or punishment 

below, or in the alternative, remand the case to the trial court to determine 

Mr. Barton's competency and/or sanity at the time of the commission of the 

offense, and/ or to determine whether trial counsel conveyed the plea offer to 

Mr. Barton. Further, Zane Barton prays that this Honorable Court will enter 

any other relief appropriate under the facts and the law.

Respectfully Submitted,

/s/ Amanda Erwin

__________________________________

Amanda Erwin

The Erwin Law Firm, L.L.P.
24

109 East Hopkins Street, Suite 200

San Marcos, Texas 78666

Telephone: (512) 938-1800

Telecopier: (512) 938-1804

amanda@theerwinlawfirm.com

Attorney for Appellant

Zane Barton

State Bar Number 24042936
25

CERTIFICATE OF SERVICE

Pursuant to TEX. R. APP. P. 9.5, I certify that of April 22, 2015, a copy 

of this motion was mailed via first class U.S. mail, to the following: Hays 

County District Attorney’s Office, 712 Stagecoach Trail, Suite 2057, San 

Marcos, Texas 78666.

/s/ Amanda Erwin

_________________________________

Amanda Erwin
26

CERTIFICATE OF COMPLIANCE STATING NUMBER OF 

WORDS IN BRIEF

Pursuant to Tex. R. App. P. 9.4(i), Appellant certifies that this 

Appellate Brief contains only 5,749 words, and is therefore compliant with

the maximum word limitation allowed by the Honorable Court.

/s/ Amanda Erwin

_________________________________

Amanda Erwin