12

- 16

- 00096

- CR

IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS

LONNIE EDWARD SMITH, JR.
Appellant,

v.

THE STATE OF TEXAS
Appellee

On Appeal from the 241st District Court of Smith County, Texas Trial Cause No. 241

- 0048

- 16

ORAL ARGUMENT NOT REQUESTED

Austin Reeve Jackson Texas Bar No. 24046139 112 East Line, Suite 310 Tyler, TX 75702 Telephone: (903) 595

- 6070 Facsimile: (866) 387

- 0152 ACCEPTED 12-16-00096-CR TWELFTH COURT OF APPEALS

TYLER, TEXAS 9/19/2016 3:19:29 PM

Pam Estes CLERKii IDENTITY OF PARTIES AND COUNSEL

Attorney for Appellant
Appellate Counsel :

Austin Reeve Jackson 112 East Line, Suite 310 Tyler, TX 75702

Trial Counsel:

Clifton Roberson 100 E. Ferguson , Suite 1104 Tyler, TX 75702

Attorney for the State

Mr. Michael West Smith County ADA 100 N. Broadway Tyler, TX 75702iii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL

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

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

................................ ................................ .......................... iv
STATEMENT OF THE CASE

................................ ................................ ....................... 2
I SSUES PRESENTED

................................ ................................ ................................ ... 2
STATEMENT OF FACTS

................................ ................................ ............................. 2 SUMMARY OF THE ARGUMENT

................................ ................................ ............. 3 ARGUMENT

................................ ................................ ................................ .................. 4

I

. MR. SMITH RECEIVED INEFFECTIVE ASSISTANCE DURING PUNISHMENT

................................ ................................ .............. 4

The State' s Argument

................................ ................................ ........................ 5

The Jury's Note

................................ ................................ ................................ . 7
Harm Analysis

................................ ................................ ................................ 10

CONCLUSION AND PRAYER

................................ ................................ .................. 1 1
CERTIFICATE OF SERVICE

................................ ................................ ..................... 1 1
CERTIFICATE OF COMPLIANCE

................................ ................................ ............ 1 2iv INDEX OF AUTHORITIES

UNITED STATES SUPREME COURT:
Strickland v. Washington , 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed. 2d 344 (1984)

................................ . 4

FIFTH CIRCUIT COURT OF APPEALS:
Lyons v. McCotter , 770 F.2d 529 (5th Cir.)

................................ ................................ .................. 5

TEXAS COURT OF CRIMINAL APPEALS :

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

................................ ........................... 4 , 6

Garcia v. State , 57 S.W.3d 436 (Tex.Crim.App. 2001)

................................ ........................... 5

Hawkins v. State , 135 S.W.3d 72 (Tex.Crim.App. 2004)

................................ ........................... 5 , 8 , 9

Hernandez v. State , 988 S.W.2d 70 (Tex.Crim.App. 1 999)

................................ ........................... 4

Hutch v. State , 922 S.W.2d 166 (Tex.Crim.App. 1996)

................................ ......................... 9
Igo v. State , 210 S.W.3d 645 (Tex.Crim.App. 2007)

................................ ......................... 8
Luquis v. State , 72 S.W.3d 355 (Tex.Crim.App. 2002)

................................ ........................... 9

Mata v. State , 226 S.W.3d 425 (Tex.Crim.App. 2007) )

................................ ....................... 8

- 9v TEXAS COURT OF CRIMINAL APPEALS (CON’T):

Miniel v. State , 831 S.W.2d 310 (Tex.Crim.App. 1992)

................................ ......................... 4

Moore v. State , 9 694 S.W.2d 528 (Tex.Crim.App. 1985)

................................ ....................... 4

Rose v. State , 752 S.W.2d 529 (Tex.Crim.App. 1988)

................................ ......................... 8

Schutz v. State , 63 S.W.3d 442 (Tex.Crim.App. 2001)

................................ ........................... 11
Vasquez v. State ,

830 S.W.2d 948 (Tex.Crim.App. 1992)

................................ ......................... 5

TEXAS COURTS OF APPEAL:
Byrd v. State , 192 S.W.3d 69 ( Tex.App

. — Houston [14th Dist.] 2006)

............................... 9

- 10

Chavez v. State , 6 S.W.3d 66 (Tex.App.

— San Antonio 1999)

................................ ................ 5
Clay v. State , 741 S.W.2d 209 ( Tex.App

. — Dallas 1987)

................................ .................... 6

Lee v. State , No. 12

- 09

- 00221

- CR, 2010 WL 1899675 (Tex.App.

— Tyler 2010)

................................ ................. 10

Mata v. State , 141 S.W.3d 858 (Tex.App.

— Corpus Christi 2004)

................................ ...... 8

Perez v. State , 994 S.W.2d 233 ( Tex.App

. — Waco 1999)

................................ .................... 6vi TEXAS COURTS OF APPEAL (CON’T) :

Roberts v. State , 849 S.W.2d 407 (Tex.App.

— Fort Worth 1993)

................................ ............ 8

S

a n doval v. State , No. 12

- 12

- 00366

- CR 2013 WL 3967242 ( Tex.App

. — Tyler 2013)

................................ ................. 10
Taylor v. State , 911 S.W.2d 906 (Tex.App.

— Fort Wroth 1995)

................................ ............ 6

STATUTES :

T EX

. C ODE C RIM

. P ROC

. art. 37.07

................................ ................................ .... 7, 8 , 912

- 16

- 00096

- CR

IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS

LONNIE EDWARD SMITH, JR.
Appellant,

v.

THE STATE OF TEXAS
Appellee

On Appeal from the 241st District Court of Smith County, Texas Trial Cause No. 241

- 0048

- 16

TO THE HONORABLE JUSTICES OF THE COURT:
COMES NOW, Austin Reeve Jackson, attorney for Lonnie Smith , and files
this brief pursuant to the T EXAS R ULES O F A PPELLATE P ROCEDURE , and would

show the Court as follows:2 STATEMENT OF THE CASE
Lonnie Smith seeks to appeal his conviction and sentence for the offense of
delivery of a controlled substance. (I CR 46). Mr. Smith was indicted for this offense in January of this year. (I CR 1). A plea of “ not guilty ” was ent ered and the
case proceeded to trial by jury in the 241st District Court of S m ith County. (I CR
46). Ultimately , the jury convicted Mr. Smith of the offense a nd imposed punishment at confinement for life. ( Id .). Sentence was pronounced on 15 March and

notice of a ppeal then timely filed. (I CR 46, 55).

ISSUES PRESENTED

I. MR. SMITH RECEIVED INEFFECTIVE ASSISTANCE DURING PUNISHMENT.

STATEMENT OF FACTS
At some point in the past officers with the Tyler Police Department L earned

that Appellant , Mr. Lonnie Smith, may be involved in illegally distributing controlled substances in the Tyler area. (IV RR 29). As part of their investigation into
that issue, officers conducted an attempted buy of narcotics from Mr. Smith using a

confidential informa nt. (IV RR 30

- 31). Specifically, the informant arranged to
purchase $60 worth of oxycodone from M r

. Smith. (IV RR 32). That transaction,
and later a second, was conducted. (IV RR 42

- 43).3 As a result, Mr

. Smith was indicted for the felony offense of delivery of a

controlled substance . (I CR 1). Based on two prior felony convictions , his punishment range was enhanced to that of a habitual offender . (I CR 32). Mr. Smith

elected to proceed to trial by jury and was convicted in the 241st District Court of
Smith County and sentenced to serve a term of confinement for life

. (I CR 46).
Sentence was pronounced on 15 March and notice of a ppeal then timely filed. (I
CR 46, 55).

S UMMARY OF ARGUMENT

When Mr. Smith ’ s trial counsel failed to raise a timely obje ction to argument
by the State that encouraged the jury to improperly appl y of parole law to Mr.

Smith in determining their sentence , and then compounded that error by failing to
request that a proper parole instruction be given in response to a question sent out
by the j ury during deliberation , ineffective assistance was rendered. Because, but

for that ineffective assistance Mr. Smith may have r eceived a lesser sentence, the

C ourt should reverse the judgment and remand the case for a new trial on punishment.4 ARGUMENT

I. MR

. SMITH RECEIVED INEFFECTIVE ASSISTANCE DURING PUNISHMENT.

Effective assistance of counsel is to be evaluated under the standard enunciated in Strickland v. Washington , 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344
(1984); see also, Hernandez v. State , 988 S.W.2d 70 (Tex.Crim.App. 1999). To
prevail in a claim of ineffective assistance of counsel, a defendant must show (1)

t hat his trial counsel’s performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that, but for trial counsel’s alleged
errors, the result would have been different. Strickland , 466 U.S. at 687

- 88. On

ap peal, the defendant carries the burden of proving ineffective assistance by a preponderance of the evidence. Moore v. State , 694 S.W.2d 528, 531 (Tex.Crim.App.
1985). Trial counsel’s performance is not to be judged with the benefit of hindsight. Miniel v. State , 831 S.W.2d 310, 323 (Tex.Crim.App. 1992); see also Bone

v. State , 77 S.W.3d 828, 833 n.12 (Tex.Crim.App. 2002) (holding that if the appellate court can imagine a strategic motive to explain the ineffective assistance claim,
then the reviewing cou rt may not sustain the appellant’s point of error).
Specifically applying this standard to allegations that trial counsel was ineffective for failing to object, an appellate court will not presume that a failure to object even to impermissible evidence o r activity is, per se , ineffective assistance of

counsel. Strickland , 466 U.S. at 690. However, where there exists no reasonable5 trial strategy for failing to make such an objection, ineffective assistance of counsel

will be found to have been rendered. Garcia v. State , 57 S.W.3d 436, 440
(Tex.Crim.App. 2001); Vasquez v. State , 830 S.W.2d 948, 951 (Tex.Crim.App.
1992); Chavez v. State , 6 S.W.3d 66, 71(Tex.App.

— San Antonio 19 9 9, pet. ref’d);
see also Lyons v. McCotter , 770 F.2d 529, 534

- 35 (5th Cir. 1985). Here, ineffective assistance was rendered when trial counsel failed to raise a timely objection to
the improper application of parole law to Mr. Smith by the jury.

The State ’ s Argument

It is well established that a jury is prohibited from considering how parole

law and good time would be applied to a particular defendant. Hawkins v. S tate , 135 S.W.3d 72, 84 (Tex.Crim.App. 2004). Nonetheless, in closing argument the

State argued for a maximum sentence in part because it was a foregone conclusion

that Mr. Smith would be paroled at some point and would then need to be supervised for life . ( V RR gen

. ).

So then what ’ s the difference between a life sentence and a 60

- year sentence , if he ’ s eligible for parole at 15 no matter what?
Well, for one it sends a message to the community

... , but it also ensures that this person will be monitored and supervised for the rest of his life, period, no matter what. And I can ’ t really think of anybody who needs to be monitored and supervised for the rest of his life more than Lonnie Smith. That ’ s the only way you ’ re going to ensure that.6 ( V RR 13

- 14 ). After briefly explaining that they jury is prohibited from applying
parol e law in calculating their sentence, the State then went ahead and urged them
to do just that:

But what we can guarantee is that with a life sentence, at a minimum Lonnie Smith will be supervised for the remainder of his natural life. That ’ s what a life sentence means.
( V R 25 ) (emphasis added).
Such comments, that a life sentence is warranted because the jury must take

into consideration how long they want to have Mr. Smith under the supervision of
parole, cannot be construed as anything other than urging the jury to apply parole
law to this particular defendant. Perez v. State , 994 S.W.2d 233, 236

- 37
(Tex.App.

— Waco 1999, no pet.) ; Taylor v. State , 911 S.W.2d 906, 911
(Tex.App.

— Fort Worth 1995, pet. ref’d); Clay v. State , 741 S.W.2d 209, 210
(Tex.App.

— Dallas 1987, pet. ref’d). Such remarks are “tantamount to telling the
jury to disregard the charge of the Court on the applicable law and to apply the parole laws” to Mr. Browning and trial counsel should have raised an appropriate object ion when the State made such an argument

. Clay , 741 S.W.2d at 211; but see
Taylor v. State , 233 S.W.3d 356, 358 (Tex.Crim.App. 2007) (holding that similar
arguments were not problematic and counsel was not ineffective for failing to object.); see also Bon e v. State , 77 S.W.3d 828, 833 n.12 (Tex.Crim.App. 2002)
(holding that if the appellate court can imagine a strategic motive to explain the in-7 effective assistance claim, then the reviewing court may not sustain the appellant’s
point of error).
The Jury ’ s Note

That the S t ate ’ s argument was effective and landed their desired blows is
made clear by a note sent out by the jury during their deliberations in which they

asked specifically about how parole would be applied to particular sentencing options. (V RR 30

- 31). Specifically , the jury asked:
Clarification: 25 dash 99 years, eligibility for parole in 15 years. Life sentence, is there any possibility of parole? What is the difference in 99 and life?
( Id

. ).
In response, the tri al court proposed that the following be sent as a reply:

Members of the jury , the Court has received your note. The Court cannot give you any further instructions. Please refer to the Court’s cha rge and continue your deliberations.
( V RR 31 ). Without objection from either party this response was then sent back
to the jury. ( Id

. ).
At the outset, Appellant must concede that the written charge of the court

contained a mostly proper parole instruction and i ncluded the admonition that the
jury wa s prohibited from considering how parole law and good time would be ap-8 plied to Mr. Smith

. 1 (I CR 39

- 40 ); T EX

. C OE C RIM

. P ROC

. A NN . Art. 37.07 §4( b ) ;
Igo v. State , 210 S.W.3d 645, 647 ( Tex.Crim.App. 2007) . Appellant further recognizes that there is a presumption on appeal that the jury followed the trial court’s

written instructions on this issue. Rose v. State , 752 S.W.2d 529, 554
(Tex.Crim.App. 1988) (op. on reh’g); Hawkins , 135 S.W.3d at 84 (Tex.Crim.App.
2004). However, this presumption is one that can be rebutted when the record establishes evidence to the contrary. Id

. When it becomes evident that the jury is concerned with how parole will be
applied in a particular case and is att empting to calculate its application for a particular defendant, a trial attorney should recognize the potential harm being done to

their client. As courts have noted, the purpose of the parole instruction is to benefit
the State by increasing the likelihoo d that a longer sentence will be imposed. Roberts. v. State , 849 S.W.2d 407, 410 (Tex.App.

— Fort Worth 1993, pet. ref’d).
When the jury sends out a not e making clear they are attempting to calculate parole
in such a way as to apply it to a particular defendant in order to ensure that he remains incarcerated as long as possi ble and trial counsel makes no attempt to mitigate that harm, counsel has abdicated one of their most basic responsibilities to

their client. See, e.g, Mata v. State , 141 S.W.3d 858, 8 68 (Tex.App.

— Corpus
Christi 2004), rev’d on other grounds , 226 S.W.3d 425 (Tex.Crim.App. 2007)

1 To the extent that the instruction did not exactly mirror that in Section 37.07, that error was either neutral or was to Mr. S m ith ’ s benefit

. T EX

. C OE C RIM

. P ROC

. A NN . Art. 37.07 §4( b )9 (holding that it is the obvious “goal of every defense counsel at the punishment
phase of trial is to have the jury assess the least amount of punishment possibl e”).
The simple answer for trial counsel, and the act which would indicate effective assistance , would have been for counsel to ask that the court responded with
the instruction it is required by statute to give. See Hutch v. State , 922 S.W.2d
166, 170 (Tex.Crim.App. 1996) (court is required to give the law applicable to a
case). This includes the applicable instruction for parole, importantly, that a jury
may not apply or attempt to apply parole calculations to a defendant. T EX

. C ODE

C RIM

. P R OC . art. 37.07 § 4( b ). Thus, in response to the jury’s questions, defense
counsel should have objected to the obvious consideration of parole by the jury,
objected to the vague and incomplete instruction given by the trial court, and requested that the ju ry be instructed, “You are not to consider the manner in which
the parole law may be applied to this particular defendant.” T EX

. C ODE C RIM

.
P ROC . art. 37.07 §4( b ); see also Luquis v. State , 72 S.W.3d 355, 363
(Tex.Crim.App. 2002) (as to the written charge the giving of such an instruction is
mandatory); Hawkins , 135 S.W.3d at 84 (“The law specifically provides that the
jury may consider the existence of parole law and good time in making its punishment determination; the jury is simply prohibited from cons idering how parole law
and good time would be applied to a particular defendant.”); but see Byrd v. State , 192 S.W.3d 69, 72 (Tex.App.

— Houston [14th dist.] 2006, pet. ref’d) (a “jury may10 base its ...punishment in part on consideration of a sentenced defendan t’s parole
eligibility...). By failing to do so, trial counsel not only abdicated his responsibility to Mr. Smith but also effectively aided in ensuring that the sentence returned
would be on the high

- end as the jury’s improper consideration of parole for that
purpose went unchecked. But see, S a ndoval v. State , No. 12

- 12

- 00366

- CR, 2013
WL 3967242 (Tex.App.

— Tyler July 31, 2013, pet. re f ’ d) (in which this Court rejected this argument under similar circumstances).

Harm Analysis
Viewing the unobjected to argument by the S t ate , coupled with the implicit

attempt by the jury to calculate how long it would take before Mr. Smith would be
released on parole , in light of the fact that Mr. Smith was ultimately given a life

sente nce, harm seems hard to dispute. But see Lee v. State , No. 12

- 09

- 00221

- CR,

2010 WL 1899675 (Tex.App.

— Tyler May 12, 2010, pet. ref’d) (not designated for
publication) (in which this Court found no harm under comparable circumstances).
That is, but for trial counsel’s failure to raise a proper objection to the instruction
given and request that a complete instruction be submitted, Mr. Smith ’ s sentence
may have been something significantly less than life. Strickland , 466 U.S. at 687

- 88 (standard of review). And while this is an admittedly nebulous assertion of
harm, Appellant would ask the Court to consider that his is not the objective to
prove harm but, rather, to ask the Court whether it can be certain that the error did11 not influence the jury or did so only slightly. See Schutz v. St ate , 63 S.W.3d 442,
444 ( Tex.Crim.App . 2001) (harm is not resolved “by asking whether the appellant
met a burden of proof to persuade us tha t he suffered some actual harm). Because
the Court cannot confidently answer that question given the record before it, the
judgment should be reversed and the case remanded for a new trial on punishment.

CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court,

because Mr. Smith received ineffective assistance during the punishment phase of
trial, reverse the underlying judgment and remand the case for a new trial on sentencing.
Respectfully submitted,

/s/ Austin Reeve Jackson Texas Bar No. 24046139 305 S. Broadway, Suite 700 Tyler, TX 75702 Telephone: (903) 595

- 6070 Facsimile: (866) 387

- 0152

CERTIFICATE OF SERVICE
I certify that a true and correct copy of this brief was delivered to counsel for
the State by efile / facsimile concurrently with its filing in the Court.

/s/Austin Reeve Jackson12 CERTIFICATE OF COMPLIANCE
I certify that this document complies with the requirements of Rule 9.4 and

consists of 2,382 words.

/s/ Austin Reeve Jackson