In the Court of Appeals for the 

Fifth District of Texas at Dallas 

JUSTIN DALE ROBERTS, § 

 Appellant § 

 § 

v. § No. 05-15-00379-CR

 § 

THE STATE OF TEXAS, § 

 Appellee § 

Appealed from Cause Number 199-80668-2013 in the 416th Judicial District Court 

of Collin County, Texas, the Honorable Angela Tucker, Judge Presiding. 

§ § § 

STATE’S BRIEF

§ § § 

GREG WILLIS 

Criminal District Attorney 

Collin County, Texas 

JOHN R. ROLATER, JR.

Assistant Criminal District Attorney 

Chief of the Appellate Division 

Oral argument is requested, ANDREA L. WESTERFELD 

but only if Appellant also Assistant Criminal District Attorney 

requests oral argument. 2100 Bloomdale Rd., Suite 200 

McKinney, Texas 75071

(972) 548-4323 

FAX (214) 491-4860 

State Bar No. 24042143 

awesterfeld@co.collin.tx.us 

THOMAS ASHWORTH & CALLI 

BAILEY 

Assistant Criminal District Attorneys 

ACCEPTED

05-15-00379-CR

FIFTH COURT OF APPEALS

DALLAS, TEXAS

9/22/2015 9:53:31 AM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 9/22/2015 9:53:31 AM LISA MATZ Clerk
i

TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................... i

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

STATEMENT REGARDING ORAL ARGUMENT............................................1

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

STATEMENT OF FACTS.....................................................................................1

The business........................................................................................................1

The fraud .............................................................................................................3

The defense .........................................................................................................5

SUMMARY OF THE STATE’S ARGUMENTS .................................................7

STATE’S REPLY TO APPELLANT’S SOLE ISSUE

(EFFECTIVENESS OF REPRESENTATION) ....................................................8

Appellant has not presented an adequate record to assess his 

complaint because he offered no evidence of counsel’s strategy. It 

may be a valid trial strategy for Appellant to admit his past criminal 

history, even if it might not otherwise be admissible. Furthermore, 

Appellant has not shown the result of the proceeding would have been 

different because the admission could have enhanced rather than 

detracted from his credibility, such as showing his honesty or showing 

that he had no history of fraud-related offenses. Additionally, the 

result would not have been different because, even if Appellant’s 

testimony was believed in its entirety, it still showed he was guilty of 

the offense.

Standard of Review:............................................................................................8

Relevant Facts:....................................................................................................9

Argument & Authorities: ..................................................................................10
ii

PRAYER...............................................................................................................15

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

CERTIFICATE OF COMPLIANCE ...................................................................16
iii

INDEX OF AUTHORITIES

Cases

Cannon v. State,

252 S.W.3d 342 (Tex. Crim. App. 2008).............................................................10

Ex parte Ellis, 

 233 S.W.3d 324 (Tex. Crim. App. 2007) ............................................................11

Hernandez v. State,

988 S.W.2d 770 (Tex. Crim. App. 1999)...............................................................8

Jackson v. State,

877 S.W.2d 768 (Tex. Crim. App. 1994)...................................................... 10, 12

Jaramillo v. State,

No. 04-02-00544-CR, 2003 WL 22491511

 (Tex. App.—San Antonio Nov. 5, 2003, no pet.)

 (not designated for publication)............................................................................11

Lopez v. State,

343 S.W.3d 137 (Tex. Crim. App. 2011)...............................................................9

Ray v. State,

No. 12-10-00365-CR, 2012 WL 690317

 (Tex. App.—Tyler Feb. 29, 2012, no pet.)

 (not designated for publication)............................................................................11

Strickland v. Washington,

466 U.S. 668 (1984) .........................................................................................8, 10

Thompson v. State,

9 S.W.3d 808 (Tex. Crim. App. 1999)...............................................................8, 9

West v. State,

Nos. 05-02-00976—77-CR, 2003 WL 1131367

 (Tex. App.—Dallas Mar. 13, 2003, no pet.)

 (not designated for publication)............................................................................11
iv

Williamson v. State,

104 S.W.3d 115 (Tex. App.—Texarkana 2003, pet. ref'd)..................................11
1

STATEMENT REGARDING ORAL ARGUMENT

The State does not believe oral argument will assist the Court in developing 

the issues in this case. However, if oral argument is granted to Appellant, the State 

requests the opportunity to respond.

STATEMENT OF THE CASE

Justin Roberts (“Appellant”) was charged by indictment with one count of 

engaging in organized criminal activity, one count of money laundering, and three 

counts of forgery of a contract or commercial instrument. CR 15. Appellant 

pleaded not guilty before a jury. 2 RR 110. The jury convicted him of all counts, 

and the trial court sentenced Appellant to four years in prison on Counts I and II 

and two years in the state jail on Counts III, IV, and V, to run concurrently. CR 77-

81, 84, 87, 90; 4 RR 26-27, 56. 

STATEMENT OF FACTS

Appellant and two compatriots set up paperwork to falsely hold themselves 

out as partners in their employer’s company and deposited thousands of dollars of 

checks made out to their employer in their false bank accounts.

The business

Jason Earnhardt was the owner of Ernhardt Restoration & Roofing, a roof 

repair company he and his wife founded in 2010. 2 RR 114-16. Their business 
2

model involved tracking areas of hail damage and sending salesmen to knock on 

doors. 2 RR 116-17. In May 2012, Earnhardt Roofing employed approximately 

forty salesmen or project managers, who were responsible for contacting 

customers, inspecting roofs for damage, getting a contract signed, assisting the 

customer in filing insurance claims, and collecting checks from the customer 

before repair work actually began. 2 RR 118-19. Salesmen were paid a 

commission of whatever projects they completed. 2 RR 134-35. Employees were 

authorized to perform “side work”—small projects such as repairing a fence that a 

customer might want completed at the same time as their roof replacement—but 

those projects were still required to be submitted to the office. 2 RR 190.

In May 2012, Earnhardt hired Ron Robey as a project manager. 2 RR 128. In 

return, Robey recruited a number of additional employees, including Brian White 

and Appellant. 2 RR 137; 3 RR 22. But then Earnhardt noticed that money was 

going unaccounted for and contracts were made but never paid on. 2 RR 153. Then 

in August, the company’s telephone and email accounts were flooded by 

communications from all over the country, making so many calls and emails that 

no business communications could take place. 2 RR 153. Earnhardt discovered that 

someone had been listing his business’s contact information in Craigslist ads all 

over the country, using ads that would generate many responses such as advertising 

expensive items for free or job postings. 2 RR 155-56; 3 RR 89-90. The company 
3

had to shut down completely for sixty days because of the flood of 

communications. 2 RR 156. Earnhardt learned that Robey, White, and Appellant 

were responsible for the Craigslist postings and obtained a recording in which 

Robey and White talked about the Craigslist postings. 2 RR 159; State’s Exhibit 

14.

Shortly after the police attempted to contact Robey, White, and Appellant

about the Craigslist postings, in early September, Earnhardt’s business was broken 

into. 2 RR 140; 3 RR 102. Nothing valuable was taken, only a filing cabinet and 

old computer towers with electronic records. 2 RR 140-41. But the records would 

be valuable to anyone trying to start a roofing company, and the loss of them 

crippled Earnhardt Roofing because they had no way of knowing what contracts 

had been signed. 2 RR 143. The break-in cost Earnhardt Roofing approximately 

$13.8 million dollars in lost revenue. 2 RR 143. Earnhardt was not able to keep the 

business afloat and had to shut down. 2 RR 143. 

The fraud

During the police investigation into the Craigslist postings, Detective Finks

discovered that Robey, White, and Appellant had filed an Assumed Name 

Certificate, also called a “Doing Business As” or “DBA,” under the name of 

Earnhardt Roofing & Restoration. 3 RR 93; SX 8. One use of such a certificate is 

to allow a person to open a bank account under a company name. 3 RR 69. 
4

Obtaining a certificate only required a person to apply and swear that they were the 

owners of the business, not provide any kind of proof of ownership. 3 RR 66-67. 

Robey, White, and Appellant filed their Earnhardt Roofing DBA in Collin County 

on July 30, 2012, while Earnhardt’s company was still operating in Dallas County. 

3 RR 69; SX8. They subsequently used the DBA to open two bank accounts under 

the name of Earnhardt Roofing at Woodforest National Bank and JPMorgan Chase 

Bank, listing themselves as partners of the company. 2 RR 171-72; SX 9, 10.

Robey, White, and Appellant then deposited the checks they received for 

Earnhardt Roofing customers into their own bank accounts rather than turning 

them over to Earnhardt. 2 RR 173-74. At least $38,000 in checks were deposited 

into the fictitious accounts rather than the genuine business, all during the time the 

genuine Earnhardt Roofing was unable to respond to or contact customers because 

of the Craigslist attack. 2 RR 176. Earnhardt never gave Robey, White, or 

Appellant permission to file the DBA or open any bank accounts under the 

Earnhardt Roofing name. 2 RR 128, 152, 157, 172. Homeowners Inderjit Sethi, 

Siva Sankaramanchi, and Jessica Carlton all testified that Appellant solicited 

business from them, wearing the Earnhardt Roofing uniform and claiming he 

worked for Earnhardt Roofing. 3 RR 38-40, 52-53, 71, 74, 78. All three researched

the company online and with the Better Business Bureau and were reassured that it 

was a legitimate company. 3 RR 40-41, 53. They would not have done business 
5

with Appellant but for verifying the company. 2 RR 41, 53. But all three 

homeowners’ checks were deposited into Appellant’s fictitious accounts. SX 9, 10. 

The defense

Appellant testified at trial that he had been hired by Robey at Earnhardt 

Roofing and worked there for only four months. 3 RR 118-24, 138. He started 

having trouble getting paid by the company and having the company finish the jobs 

he had contracted. 3 RR 142-43, 147. He claimed that he, Robey, and White had a 

conversation with Earnhardt at a bar and as a result started a “business within a 

business” of Earnhardt Roofing. 3 RR 149-52. Appellant admitted that they filed a 

DBA under the name Earnhardt Roofing and opened two bank accounts under that 

name. 3 RR 151-52. He testified that the purpose of the business within a business 

was to do “side work and do our own business,” taking care of anything not 

covered by the roofing insurance that the customer might want handled. 3 RR 153. 

But he also began completing the roofing jobs that he claimed Earnhardt Roofing 

was not completing in a timely manner and deposited those checks in the bank 

accounts he, Robey, and White had opened. 3 RR 154. Appellant admitted that he 

solicited jobs for his business wearing the Earnhardt Roofing uniform. 3 RR 169. 

Appellant claimed that he was just “caught up in a bad situation” because 

Earnhardt mismanaged funds and did not take care of customers. 3 RR 157. He 

said he believed they had Earnhardt’s permission to open the business within a 
6

business and were supposed to pay Earnhardt fifty percent of any profits, but they 

never received any profits because Earnhardt called the police. 3 RR 151, 163. But 

he also admitted that it was possible Earnhardt did not know what they were doing. 

3 RR 178. 
7

SUMMARY OF THE STATE’S ARGUMENTS

Appellant has not presented an adequate record to assess his complaint 

because he offered no evidence of counsel’s strategy. It may be a valid trial 

strategy for Appellant to admit his past criminal history, even if it might not 

otherwise be admissible. Furthermore, Appellant has not shown the result of the 

proceeding would have been different because the admission could have enhanced 

rather than detracted from his credibility, such as showing his honesty or showing 

that he had no history of fraud-related offenses. Additionally, even if Appellant’s 

testimony was believed in its entirety, it still showed he was guilty of the offense.
8

STATE’S REPLY TO APPELLANT’S SOLE ISSUE

(EFFECTIVENESS OF REPRESENTATION)

Appellant complains in his sole issue on appeal that counsel was 

ineffective for introducing evidence of his otherwise inadmissible 

criminal history. But Appellant has not presented an adequate record 

to assess his complaint because he offered no evidence of counsel’s 

strategy. It may be a valid trial strategy to offer even otherwise 

inadmissible evidence. Furthermore, Appellant has not shown the 

result of the proceeding would have been different because the alleged 

error could have enhanced rather than detracted from his credibility, 

such as showing his honesty or showing that he had no history of 

fraud-related offenses. Additionally, even if Appellant’s testimony 

was believed in its entirety, it still showed he was guilty of the 

offense.

Standard of Review:

Appellant bears the burden of establishing his ineffective assistance of 

counsel claim under the two-part test of Strickland v. Washington, 466 U.S. 668 

(1984). Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). He 

must establish that counsel’s performance fell below an objective standard of 

reasonableness under prevailing professional norms and that there is a reasonable 

probability that but for counsel’s deficient performance, the result of the 

proceedings would have been different. Strickland, 466 U.S. at 687-88. To 

succeed, Appellant must establish both prongs of the Strickland test by a 

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. 

App. 1999).
9

The review of defense counsel’s actions is highly deferential and presumes 

that counsel’s actions fell within the wide range of professional competence. Lopez 

v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Counsel’s deficiency must 

be shown clearly on the record, not through retrospective speculation. Id.

Appellant bears the burden of proof by a preponderance of the evidence. 

Thompson, 9 S.W.3d at 814. It is not sufficient if Appellant merely shows, through 

the benefit of hindsight, that counsel’s actions were questionable. Lopez, 343 

S.W.3d at 143. The reviewing court must consider the totality of counsel’s 

representation and the circumstances of each case. Id.

Relevant Facts:

At the beginning of Appellant’s testimony during the guilt/innocence phase, 

counsel elicited that he had a prior criminal history. 3 RR 116. Specifically, 

Appellant admitted that he pleaded guilty in Georgia to felony possession of a 

controlled substance after self-medicating a work injury with an unprescribed 

muscle relaxant and successfully completed probation. 3 RR 116-17. He also 

testified to receiving a misdemeanor conviction in Collin County for driving while 

intoxicated. 3 RR 117.

Following Appellant’s conviction, his trial counsel filed a motion for new 

trial. CR 93. After current counsel was appointed, Appellant moved to withdraw 

the first motion and filed a subsequent motion for new trial, alleging trial counsel’s 
10

ineffectiveness. CR 106, 114, 128. Appellant attached his own affidavit to the 

motion, but he did not obtain an affidavit from trial counsel or request a hearing. 

CR 114, 128. The trial court denied the motion in a docket entry. CR 14.

Argument & Authorities:

Appellant has not met his burden of proving he received ineffective 

assistance of counsel because he has not presented an adequate record for the Court 

to review his claim and accordingly has not shown either that his counsel’s 

representation was deficient or that he was prejudiced by counsel’s alleged errors. 

See Strickland, 466 U.S. at 686-88. A reviewing court cannot determine that trial 

counsel was ineffective where there was no record of his reasoning. Jackson v. 

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Here, the record is not adequate to evaluate Appellant’s claim. Appellant 

complains that counsel was ineffective only for introducing evidence of his 

criminal history. Appellant’s Brief at 13-14. But the record does not reflect any of 

counsel’s reasoning for doing so. Counsel was never given an opportunity to 

explain his actions, including whether he had a strategic purpose for introducing 

Appellant’s criminal history. Thus, counsel could only be found ineffective if there 

could be no conceivable strategic reason for his actions. See Cannon v. State, 252 

S.W.3d 342, 350 (Tex. Crim. App. 2008).
11

But it is not necessarily defective representation to introduce even otherwise 

inadmissible evidence of a defendant’s criminal history. In Ex parte Ellis, the 

Court of Criminal Appeals held that counsel had a sound strategic reason for 

offering evidence of the defendant’s prior robbery conviction and murder charge. 

233 S.W.3d 324, 334-36 (Tex. Crim. App. 2007). In Ellis, counsel used evidence 

of the defendant’s criminal history to show that he had not been involved in any 

previous drug-related crimes and thus was less likely to have possessed the drugs 

than his co-defendant with a lengthy drug-related history. Id. This Court has also 

found that having the defendant admit to his criminal history was a way of 

demonstrating candor to the jury and could be a strategic reason to introduce prior 

criminal history. West v. State, Nos. 05-02-00976—77-CR, 2003 WL 1131367, at 

*2 (Tex. App.—Dallas Mar. 13, 2003, no pet.) (not designated for publication). 

Additionally, the West court concluded that the fact that the evidence might not be 

admissible “at the first instance” was irrelevant because the defense attorney “had 

to plan for the event that appellant opened the door to these convictions.” Id. Other 

courts have similarly found that a trial attorney may have a strategic reason for 

introducing or opening the door to a defendant’s criminal history. See Williamson 

v. State, 104 S.W.3d 115, 120 (Tex. App.—Texarkana 2003, pet. ref’d); Ray v. 

State, No. 12-10-00365-CR, 2012 WL 690317, at *4 (Tex. App.—Tyler Feb. 29, 

2012, no pet.) (not designated for publication); Jaramillo v. State, No. 04-02-
12

00544-CR, 2003 WL 22491511, at *1 (Tex. App.—San Antonio Nov. 5, 2003, no 

pet.) (not designated for publication). 

Thus, there are valid strategic reasons why a reasonable defense attorney 

may choose to admit even otherwise inadmissible criminal history. Counsel may 

have been trying to show that Appellant had no history of fraud in order to support 

his claim that he was merely mistaken about whether he had permission to open his 

“business within a business.” Counsel also may have been trying to show 

Appellant was honest about admitting his mistakes. Indeed, counsel could have 

been afraid that Appellant might inadvertently open the door to evidence of his 

criminal history, and revealing that history from the beginning could have looked 

more honest to the jury. Without knowing counsel’s reasoning in the instant case, 

this Court cannot conclude that he was acting deficiently. See Jackson, 877 S.W.2d 

at 771.

Additionally, Appellant has not shown that the result of the proceeding 

would have been different but for his attorney’s alleged error. He argues that the 

criminal history evidence was necessarily damaging because the case amounted to 

a determination of his credibility versus Earnhardt’s. Appellant’s Brief at 14. But 

as the West court concluded, discussing Appellant’s criminal history even when he 

was not required to could show candor to the jury and might be considered a 

positive influence on his credibility rather than a negative. And as in Ellis, the fact 
13

that none of Appellant’s prior history involved fraud or theft could also have 

contributed to the jury believing Appellant’s story that he was merely mistaken 

about having permission, not that he was intentionally trying to defraud or cheat 

Earnhardt.

Appellant also cannot show that any damage to his credibility from the 

introduction of his criminal history affected the result of the proceeding when his 

own testimony showed he was guilty of the charged offenses. Appellant claimed 

they had Earnhardt’s permission only to do “side jobs” and their own business, 

things not connected to the insurance coverage that the customer might want done. 

3 RR 153. Appellant then admitted that he had accepted payment for regular roof 

repair jobs that he had solicited as part of Earnhardt Roofing, not “side jobs.”13 

RR 154. Appellant claimed he was justified in doing so because he was the one 

actually completing the jobs when Earnhardt was mismanaging the business, not 

because he had permission to do so. 3 RR 154. Thus, even if the jury had believed 

Appellant’s testimony about having permission to set up a franchise-type business, 

he admitted that he went beyond the scope of that permission to complete and 

accept payment for Earnhardt Roofing’s own contracts. His own testimony showed 

 

1

Indeed, the three roofing contracts introduced into evidence were all signed before Appellant, 

Robey, and White filed the DBA for their “business within a business,” so they were 

indisputably customers of the original Earnhardt Roofing. SX 8, 11-13.
14

he was guilty, and thus any potential damage to his credibility by his criminal 

history did not have an impact on the verdict.

Because the record is not adequate to show that counsel’s representation was 

deficient and Appellant has not shown the result of the proceeding would have 

been different but for the alleged error, Appellant has not met his burden of 

proving he received ineffective assistance of counsel. His sole error should be 

overruled. 
15

PRAYER

Appellant’s trial was without prejudicial error. The State prays that 

Appellant’s convictions and sentences be affirmed. 

Respectfully submitted,

GREG WILLIS

Criminal District Attorney

Collin County, Texas

JOHN R. ROLATER, JR.

Assistant Criminal District Attorney

Chief of the Appellate Division

/s/ Andrea L. Westerfeld

ANDREA L. WESTERFELD

Assistant Criminal District Attorney

2100 Bloomdale Rd., Suite 200

McKinney, TX 75071

(972) 548-4323

FAX (214) 491-4860

State Bar No. 24042143

awesterfeld@co.collin.tx.us
16

CERTIFICATE OF SERVICE

A true copy of the State’s brief has been electronically served on counsel for 

Appellant, Franklyn Mickelsen, on this, the 22nd day of September, 2015.

/s/ Andrea L. Westerfeld

Andrea L. Westerfeld

CERTIFICATE OF COMPLIANCE

This brief complies with the word limitations in Texas Rule of Appellate 

Procedure 9.4(i)(2). In reliance on the word count of the computer program used to 

prepare this brief, the undersigned attorney certifies that this brief contains 2,743

words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1). 

/s/ Andrea L. Westerfeld

Andrea L. Westerfeld