### No. 03

- 14

- 00 559

- CR

______________________________________________________ In The Court o f Appeals For The Third Court o f Appeals District Austin, Texas

______________________________________________________ Zane Lynn Barton , Appellant, v . The State of Texas, Appellee.

______________________________________________________ ON APPEAL FROM THE 2 74th DISTRICT COURT, HAYS COUNTY, TEXAS TRIAL COURT CAUSE NO. CR

- 13

- 0614

______________________________________________________ BRIEF FOR APPE LLAN T 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

CLERKii 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 Telec opier: (512) 938

- 1804
Trial Counsel: Jesus “Gabriel” Hernandez 507 th West 10 th 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
A ppellee : 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

- 7600iii 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. Steeliv Table of Contents Page Ide ntity of Part ies 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

..................... ................. 26v 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 (11 th 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 (11 th Cir. 2003)...............

..... 14 Jackson v. State , 766 S.W.2d 50 4 (Tex.Crim.App. 1985).........

.... . . 15
Martin v. Rose , 744 F.2d 1245, 1249 (6 th Cir. 1984)...............

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

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

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

....... ..................... ... . 22 Profitt v. Waldron , 831 F.2d 124 (5 th 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 (6 th Cir. 2000)...

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

... ... 13vi Wilkerson v. State , 726 S.W.2d 542 (Tex. Crim. App. 1986)

... ... ....12

Statutes
TEX. R. APP. 21.4...

....................................... ... ............ .. 181 Statement of the Case This is an appeal from a criminal p roceeding . The Appellant , Zane Barton, is currently incarcerated . On August 7, 2013 , a Hays County grand jury returned an indict ment charging Mr. Barton with Aggravated Assault Serious Bodily Injury, enhanced to a first

- degree felony for using a deadly

w eapon during the commission of the assault, a nd 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 ( 1 0 ,000.00 ) dollar fine

. ( 1 CR 101 ). Mr. Barton was sentenced in opened

court on August 21, 2 0 1 4

. ( 1 C R 102 ). The trial court certified Mr.
Barton ’ s right to appeal

. ( 1 CR 104 ). The Appellant’s n o tice of appeal was timely filed

. ( 1 CR 10 6 ).
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 re quest 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 pl ea of not guilty to the offense as alleged in the indictment. ( 3 RR 32 ). The St ate 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 tha t 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 cheek s , and a large laceration across Ms. Hunt’s throat. (3 RR 42). The State admitted phot o graphs that Officer Daenzer took of Ms. Hunt’ s injuries . (3 RR 42

- 43). Officer Daenzer furt her t estified 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 San3 Marcos Police Department, who was the lead detective on the case aga inst 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 de tectives were approached by Mr. Barton, who stated that his wife was missing. (3 RR 80

- 81). Mr. B arton was transported to the
San Marcos Po lic e 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 Mi zanin further stated that Mr. Ba rton 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 Mi zanin testified that it appeared to him that the wor d “ZAN E” had4 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 tel ephone
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 te ll 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 M izanin 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 Texa s 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 f r o m 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 bring ing his daughter home, she opened up and told
him that Mr. Barton assaulted her. (3 RR 133

- 134). The State then ca lled 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 n or 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 Mar cos, the two lived under a bridge6 with big white rocks. (3 RR 150). Ms. Hunt testified that her injuries were

sust ained 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. H unt 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 w ent 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 s ustained 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 goi ng 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 instructe d Ms. Hunt to g et on her hands and knees, and Mr. Barton cut Ms. Hunt’s neck. (3 RR 164). Mr. Barton handed Ms. Hunt his sweater to7 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 ne x t morning. (3 RR 166). Mr. B arton asked Ms. Hunt if she needed to go the hospital, and she responded yes. (3 RR 1 68). Mr. Barton was crying, because he couldn’t go to the hospital with Ms. Hunt. (3 RR 168). Ms. Hunt t old Mr. Barton that she would m ake 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). Whi le 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 th at 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 pa rents to get permission for the8 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. Bart on and her self used drugs while they were staying in Llano, Tex as. (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 agree d 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

- 2 09). Ms. Townsend testified that on April 23, 2013, Ms. Hunt w as her patient. (3 RR 210). Ms. Townsend testified that she considered Ms. Hunt’s injuries to be very da ngerous. (3 RR 214). Ms.
Towns end fu rther testified that the in j ury on Ms. Hunt’s ne ck 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 M s . Hunt listed the A ppellant, Zane Barton , as her spouse and emergency contact. (3 RR 231). The S tate then called Dr. Nicholas Nunez, an emergency medicine9 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 ne ck 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 t he Appellant’s trial counsel both rested their cases , an d 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 Def ense made closing arguments. (4 RR 34

- 68). The jury found the Appellant guil ty as charged

. (4 RR 70 ).
T he punishme nt p hase commenced , and Mr. Barton pled tr ue 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 S t ate made

an opening statement . (4 RR 74

- 76 ). The State then calle d 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 schoo l and Mr. Barton and her moved out of Hockley, Texa s. (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 with10 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. Barto n many years late r 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. B arton 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 fo r 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 statement s , and the jury subsequently sentenced the Appellant to life in the Texas Department of11 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. Further more , 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 puni shment 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 , a s 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, c ounsel 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 couns el’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 judgme nt

. 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 r easonable 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 perform ance is measured against an “objective standard of reasonableness under prevailing professional norms.” Wiggins v. Smith , 53913 U.S. 510, 527 (2003). The prejudice an applicant must show is by less than a preponderance of the evidence because “[ t] he reaso nable

- 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, 8 2 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 i t was “strategic.” Bell v. Cone , 5 35 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 (11 th 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 m ixed questions of law and fact.” Strickland , 46 6 U.S. at 698. Moreover, s trategic 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 fa bricate 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 (5 th Cir. 1999). See also Hardwick v. Crosby , 320 F.3d 1127, 1186 (11 th Cir.
20 03) (“The mere incantation of ‘strategy’ does not insulate attorney behavior from review.”); Martin v. Rose , 744 F.2d 1245, 1249 (6 th 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 (6 th 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 (5 th Cir. 1987) (“This measure of deference [to a claim of trial strategy] must not be watered down into a di sguised 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. Barto n ’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 o f the facts and law as applicable to the case; counsel has the duty in every case to make a reasona ble 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 , “W hen assessing the reasonableness of an attorney’ s investigation, a reviewing court must consider the quantum of evidence already known to counsel and whet h er 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 because16 there was evidence that would lead a reasonable attorney to investigate further into Mr. Barton’s mental health. (1 CR 15). Specifically, i n the said motion, the court appointed trial counsel states that there was good ca us e for the filing the said motion , because Mr. Barton was prescribed psychotropic medicat ions, and further that it was evident f r om a review o f the evidence that there existed valid questions regarding Mr. B arton’s mental health. ( 1 CR 15). This motion was never ruled upon, because there is no order in the trial court’s f ile. (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 t hat Mr. Barton could be suffe ring f r o m 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 a17 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 r ecord 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 lea d 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 d id not convey the ple a 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 per iod for a motio n for new trial h a s lapsed, and it was not possible to ascertain this issu e before re viewing 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 t here 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 tr ial 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 a nnounc ed 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 (5 th 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 rec essed 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

w e

— I know we talked about the

— we didn’t have a jury charge ready or a19 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 t o 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 th at trial counsel was prepared to put Mr. Barton on the stand and the next morning, when trial counsel did n ot 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, a s the Texas Court of Criminal Appeals articulated in Andrews
v. State , “When no re asonable 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 record20 adequately reflects the trial counsel’s subjective reason for acting as she did.” Andrews v. State , 159 S.W.3 d 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 de fendant’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 sam e 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 is21 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 couns el 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 69 4.
Lastly, regarding t he 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 dif fe rent if this had not occurred. Id

. at 694.22 For, it ca nnot reasonably be argued that this action could be cured simply fro m the instruction given by the trial c ourt in the punishment charge ; trial counsel admitted to Mr. Barton’s egregious beh avior in the cross examination o f 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 lo athing of Mr. Barton

. (4 RR 94); ( 5 RR 20); Id

. at 694.

Th e 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] cou rt 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 a s 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 g rant 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 t he cumulative effect of his trial counsel’s errors caused “a breakdown in the adversarial process th at 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 h is duty below, there is a reasonable probability the result of the proceeding s 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 E rwin 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 Nu mber 2404293625 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, 7 12 Stagecoach Trail, Suite 2057, San Marcos, Texas 78666.

/s/ Amanda Erwin

_________________________________ Amanda Erwin26 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 max imum word limitation allowed by the Honorable Court.

/s/ Amanda Erwin

_________________________________ Amanda E rwin