No. 03-15-00392-CR

IN THE TEXAS COURT OF APPEALS 

THIRD DISTRICT 

AT AUSTIN 

_________________________________________________________ 

 

TYLER DAVID EBANKS, Appellant 

v. 

THE STATE OF TEXAS 

_________________________________________________________ 

DIRECT APPEAL FROM THE 

27TH DISTRICT COURT OF BELL COUNTY 

TRIAL COURT CAUSE NUMBER 72.912 

_________________________________________________________ 

BRIEF FOR APPELLANT 

_________________________________________________________ 

 

 

 Richard E. Wetzel 

 State Bar No. 21236300 

 1411 West Avenue, Suite 100 

 Austin, Texas 78701 

 (512) 469-7943 

 (512) 474-5594 – facsimile 

 wetzel_law@1411west.com 

 Attorney for Appellant 

 Tyler David Ebanks 

ACCEPTED

03-15-00392-CR

6061125

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/14/2015 2:44:08 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/14/2015 2:44:08 PM JEFFREY D. KYLE Clerk
ii

Identity of Parties and Counsel

Appellant: Tyler David Ebanks 

Appellate Counsel: Richard E. Wetzel

Attorney at Law

1411 West Ave., Ste. 100

Austin, TX 78701

Trial Counsel: Michael R. Cooper

Attorney at Law 

P.O. Box 1276

Salado, TX

76571

Appellee: The State of Texas

Appellate Counsel Henry Garza 

And Trial Counsel: District Attorney

Post Office Box 540

Belton, TX 76513

Trial Judge: Hon. John Gauntt

27

th District Court

Bell County, Texas
iii

Table of Contents

Page

List of Parties . . . . . . . . . . . . . . . . . . .ii

Table of Contents . . . . . . . . . . . . . . . . . . iii

Index of Authorities . . . . . . . . . . . . . . . . . . iv

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

Issue Presented . . . . . . . . . . . . . . . . . . 1

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

Summary of the Argument . . . . . . . . . . . . . . . . . . . 6

Point of Error . . . . . . . . . . . . . . . . . . . 7

Ebanks’ plea of guilty was not freely and voluntarily entered because it was the 

result of ineffective assistance of counsel (2 RR 8-9, 3 RR 65-68 and 85-86). 

Prayer . . . . . . . . . . . . . . . . . . 11

Certificate of Compliance . . . . . . . . . . . . . . . . . . 12

Certificate of Service . . . . . . . . . . . . . . . . . . 12
iv

Index of Authorities

Page

Cases

Battle, Ex parte, 817 S.W.2d 81

(Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . .9

Burns, Ex parte, 601 S.W.2d 370 

(Tex. Crim. App. 1980) . . . . . . . . . . . . . . . . . . . .9

Gallegos, Ex parte, 511 S.W.2d 510

(Tex. Crim. App. 1974) . . . . . . . . . . . . . . . . . . .10

 

Harrington, Ex parte, 310 S.W.3d 452 

(Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . .9

Hill v. Lockhart, 474 U.S. 52

(1985) . . . . . . . . . . . . . . . . . . . .9

Jefferson v. State, 189 S.W.3d 305

(Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . .7

McMann v. Richardson, 397 U.S. 759 

(1970) . . . . . . . . . . . . . . . . . . . .9

Morse, Ex parte, 591 S.W.2d 904

(Tex. Crim. App. 1980) . . . . . . . . . . . . . . . . . . .10

Moussazadeh, Ex parte, 361 S.W.3d 684 

(Tex. Crim. App. 2012) . . . . . . . . . . . . . . . . . . . .9

Williams v. State, 235 S.W.3d 742

(Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . .8

Young v. State, 358 S.W.3d 790

(Tex. App.—Houston [14th Dist.] 2012, pet. ref'd) . . . . . . . . . . . . . . . . . . . .8

Statutes

TEX. PEN. CODE § 1.07(a)(46) . . . . . . . . . . . . . . . . . . . .8
v

TEX. PEN. CODE § 22.04(a)(1) . . . . . . . . . . . . . . . . . .2, 7

TEX. PEN. CODE § 22.04(c)(1) . . . . . . . . . . . . . . . . . . . .8

TEX. PEN. CODE § 22.04(e) . . . . . . . . . . . . . . . . . . . .8 

Rules

TEX. R. APP. P. 9.4 . . . . . . . . . . . . . . . . . . .12 
- 1 -

Statement of the Case

This is an appeal from a criminal proceeding. Tyler David Ebanks was 

indicted by a Bell County grand jury for committing the offense of causing serious 

bodily injury to a child (CR 4). He executed various waivers and a judicial 

confession (CR 30-37). There was no plea agreement with the State and the full 

range of punishment was available to the trial court (2 RR 5). A plea of guilty was 

entered by Ebanks and accepted by the trial court as voluntary (2 RR 8). The court 

found the evidence sufficient to support a finding of guilt, but withheld such a 

finding pending preparation of a presentence investigation report (2 RR 10). The 

report was prepared and reviewed by the trial court (3 RR 95). Following the 

presentation of punishment evidence from both sides, the trial court found Ebanks 

guilty and assessed punishment at 30 years of confinement (3 RR 100). The trial 

court certified Ebanks’ right to appeal (CR 65). Notice of appeal was timely filed 

(CR 64). 

Issue Presented on Appeal

Point of Error 

Ebanks’ plea of guilty was not freely and voluntarily entered because it was the 

result of ineffective assistance of counsel (2 RR 8-9, 3 RR 65-68 and 85-86). 
- 2 -

Statement of Facts

The indictment alleges that on or about May 7, 2014, Ebanks intentionally 

and knowingly caused serious bodily injury to A.J., a child 14 years of age or 

younger, by striking him (CR 4). See TEX. PEN. CODE § 22.04(a)(1). The offense 

alleged is a first degree felony. See § 22.04(e). 

At a guilty plea proceeding held on February 26, 2015, Ebanks assured the 

trial court he could read and write, was competent, and a citizen of the United 

States (2 RR 4). The trial court explained the range of punishment and the fact it 

was an “open plea” with the full range of punishment available (2 RR 5). Ebanks 

and counsel agreed they have executed various waivers in connection with the plea 

of guilty (2 RR 6). Ebanks entered a plea of guilty to the indicted offense which 

was accepted by the trial court as voluntary (2 RR 8). Ebanks represented to the 

court he was pleading guilty because he was guilty and for no other reason (2 RR 

8). Trial counsel for Ebanks assured the court the guilty plea was freely and 

voluntarily made (2 RR 9). A judicial confession executed by Ebanks was 

admitted into evidence (2 RR 9, 4 RR SX 1). The court found the evidence 

sufficient to support a finding of guilt, but withheld such a finding pending 

preparation of a presentence investigation report (2 RR 10).
- 3 -

The matter was recalled on May 7, 2015 (3 RR). Stephanie Jones is Ebanks’ 

ex-wife and the mother of the complainant, A.J. (3 RR 6). In May of 2014, A.J.

was three years of age (3 RR 7). While Stephanie was at the store on May 7, 2014, 

she received a call from Ebanks telling her to come home immediately (3 RR 7). 

Upon arriving home, she found A.J. unresponsive and she then called 911 for 

assistance (3 RR 7). Ebanks told her A.J. was injured when he fell from his crib (3 

RR 7). 

A.J. was taken to the hospital and it was determined he had two skull 

fractures, bleeding in his brain, and a broken right ear (3 RR 8). She was advised 

the injuries were not consistent with falling from a crib (3 RR 8). A.J. was in the 

hospital for over a month (3 RR 11). Stephanie identified pictures taken of A.J. in 

the hospital (3 RR 10, 4 RR SX 2-4). 

Since being released from the hospital, A.J. has suffered from various 

learning disabilities he did not have before the injury (3 RR 8). He had to relearn 

numerous skills including walking, talking, and feeding himself (3 RR 9). She 

does not know the long term prognosis for her child (3 RR 9, 26). 

She never saw Ebanks hit or abuse A.J. (3 RR 21). She related that in March 

of 2014, Ebanks called her at work and told her A.J. hurt himself when he fell in 

the bathtub (3 RR 24). When she came home, she found bruises on A.J.’s face 
- 4 -

from the bathtub fall (3 RR 24). She took pictures of his injuries, including an 

injury to his ear, which were admitted into evidence (3 RR 25, 4 RR SX 5-6). 

Ebanks became A.J.’s stepfather when he and Stephanie married in 

September of 2013 (3 RR 15). Since A.J. was injured in May of 2014, Stephanie 

has divorced Ebanks and given birth to his son (3 RR 27). The State rested on 

punishment (3 RR 28). 

Dr. William Lee Carter is a psychologist from Waco (3 RR 29-30). Carter 

was retained by the defense to examine Ebanks with relation to the reason A.J. was 

injured and Ebanks prospects for the future (3 RR 31). 

Carter explained that Ebanks was raised in a dysfunctional family, his 

parents divorced, and father was abusive both physically and emotionally (3 RR 

32). Ebanks was placed with CPS, lived in various treatment centers, and 

eventually left to join the army (3 RR 32). He was honorably discharged from the 

military due to a problem with his legs (3 RR 33). 

Ebanks has a normal IQ (3 RR 33). He has no prior criminal record (3 RR 

34). Ebanks was 20 years old when he married Stephanie (3 RR 34). Carter did 

not believe Ebanks was ready at 20 years of age for marriage or the responsibility 

of being a stepfather (3 RR 34). Carter thought that Ebanks’ lack of good 

parenting role models led him to hit A.J. because that is what had been done to 
- 5 -

Ebanks as a child (3 RR 35). Ebanks expressed remorse to Carter for injuring A.J.

(3 RR 37).

Carter’s report was admitted into evidence (3 RR 36, 4 RR DX 1). Carter 

diagnosed Ebanks as suffering from personality dysfunctions, including narcissism 

and compulsive conduct (3 RR 36). The report noted that Ebanks told Carter that 

the slap to the face is not what hurt A.J., rather, the child was hurt when he fell and 

struck his head on the corner of the bed (4 RR DX 1 at 5). 

Ebanks’ mother, Tammy Jennings, was called as a witness (3 RR 43). She 

left her marriage to Ebanks’ father after 10 years because he was abusive (3 RR 

45). She explained that while growing up, her three sons lived in various places 

including with her, their father, CPS, foster care, treatment centers, and their 

grandmother (3 RR 47). She had a daughter which she placed for adoption (3 RR 

46). 

After Ebanks lived with his father for two years, he left due to his father’s 

abuse and went to live with his grandmother (3 RR 49). He graduated from high 

school and joined the army (3 RR 50).

After reading Dr. Carter’s report, Jennings believed Ebanks was acting like 

his abusive father in his relationships with Stephanie and A.J. (3 RR 54). She 

asked the court to place her son on community supervision (3 RR 55). 
- 6 -

Ebanks testified A.J. was injured when he struck him on the right side of the 

face with an open hand (3 RR 65). He struck A.J. because the child refused to take 

a nap (3 RR 65). After being struck in the face, A.J. fell and struck his head on the 

box springs of a bed (3 RR 66). After hitting his head on the box springs, A.J.

began to shake (3 RR 66). Ebanks denied intending to hurt A.J. (3 RR 66, 68). He 

denied hitting the child hard enough to break his ear or fracture the child’s skull (3 

RR 85-86). He was remorseful about the incident (3 RR 68). Ebanks asked the 

judge to place him on community supervision (3 RR 72). The defense rested and 

both sides closed (3 RR 95). 

The court reviewed the presentence report (3 RR 95). In argument, Ebanks 

sought community supervision and the State sought a 50 year sentence (3 RR 96, 

99). The trial court entered a finding of guilt, assessed punishment at 30 years of 

incarceration, and sentenced Ebanks in open court (3 RR 100). 

Summary of the Argument

In a single point of error, Ebanks complains his plea of guilty was 

involuntary because he was denied the effective assistance of counsel. Ebanks

asserted his innocence to the charged offense during the guilty plea proceeding 

when he repeatedly claimed he did not intend to injure the child. Intent to cause 

the result of serious bodily injury is the essence of the offense charged against 
- 7 -

Ebanks. A plea of guilty while testifying to innocence cannot be free, voluntary, 

and intelligently entered. Upon the protestations of innocence during the plea 

proceeding, counsel should have moved to withdraw Ebanks’ previously entered 

plea of guilty because it was not freely and voluntarily entered. Allowing the plea 

proceedings to continue despite Ebanks’ assertion of no intent to injure the child 

was an act of deficient performance by trial counsel. Counsel failed to properly 

advise Ebanks on the elements of the offense and Ebanks was in no position to 

enter a plea of guilty to an offense he did not understand. Prejudice is present 

because had Ebanks understood the elements of the offense in relation to his 

conduct, he would not have entered a plea of guilty and would have insisted upon a 

jury trial on a plea of not guilty. This Court should reverse the judgment of 

conviction due Ebanks’ involuntary guilty plea. 

Point of Error 

Ebanks’ plea of guilty was not freely and voluntarily entered because it was 

the result of ineffective assistance of counsel (2 RR 8-9, 3 RR 65-68 and 85-86). 

Ebanks was indicted for the offense of injury to a child by causing serious 

bodily injury. Under the Texas Penal Code, “[a] person commits an offense [of 

injury to a child] if he ... intentionally, or knowingly, ... causes to a child ... serious 

bodily injury....” TEX. PEN. CODE § 22.04(a)(1); Jefferson v. State, 189 S.W.3d 
- 8 -

305, 312 (Tex. Crim. App. 2006). A child is a person fourteen years of age or 

younger. § 22.04(c)(1). “ ‘Serious bodily injury’ means bodily injury that creates a 

substantial risk of death, or that causes death.” Id. at § 1.07(a)(46). Injury to a 

child is a result-oriented offense requiring a mental state that relates not to the 

specific conduct but to the result of that conduct. Williams v. State, 235 S.W.3d 

742, 750 (Tex. Crim. App. 2007); Young v. State, 358 S.W.3d 790, 802 (Tex. 

App.—Houston [14th Dist.] 2012, pet. ref'd).

At a guilty plea proceeding held on February 26, 2015, Ebanks assured the 

trial court he could read and write, was competent, and a citizen of the United 

States (2 RR 4). The trial court explained the range of punishment and the fact it 

was an “open plea” with the full range of punishment available (2 RR 5). Ebanks 

and counsel agreed they have executed various waivers in connection with the plea 

of guilty (2 RR 6). Ebanks entered a plea of guilty to the indicted offense which 

was accepted by the trial court as voluntary (2 RR 8). Ebanks represented to the 

court he was pleading guilty because he was guilty and for no other reason (2 RR 

8). Trial counsel for Ebanks assured the court the guilty plea was freely and 

voluntarily made (2 RR 9). 

During the plea proceeding, Ebanks testified A.J. was injured when he 

struck him on the right side of the face with an open hand (3 RR 65). He struck 
- 9 -

A.J. because the child refused to take a nap (3 RR 65). After being struck on the 

head, A.J. fell and struck his head on the box springs of a bed (3 RR 66). After 

hitting his head on the box springs, A.J. began to shake (3 RR 66). Ebanks denied 

intending to hurt A.J. (3 RR 66, 68). He denied hitting the child hard enough to 

break his ear or fracture the child’s skull (3 RR 85-86). He was remorseful about 

the incident (3 RR 68). 

Counsel’s advice can provide assistance so ineffective that it renders a guilty 

plea involuntary. Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann v. 

Richardson, 397 U.S. 759, 771 (1970); “voluntariness of the plea depends on 

whether counsel’s advice ‘was within the range of competence demanded of 

attorneys in criminal cases.’ ”). A guilty plea is not knowing or voluntary if made 

as a result of ineffective assistance of counsel. Ex parte Burns, 601 S.W.2d 370, 

372 (Tex. Crim. App. 1980) (finding guilty plea involuntary when counsel 

encouraged defendant to plead guilty in order to avoid nonexistent punishment). 

A defendant’s decision to plead guilty when based upon erroneous advice of 

counsel is not done voluntarily and knowingly. Ex parte Battle, 817 S.W.2d 81, 

83 (Tex. Crim. App. 1991). See also Ex parte Harrington, 310 S.W.3d 452, 459 

(Tex. Crim. App. 2010) (“When counsel’s representation falls below this 

[Strickland v. Washington, 466 U.S. 668 (1984)] standard, it renders any resulting 

guilty plea involuntary.”). See Ex parte Moussazadeh, 361 S.W.3d 684, 692 (Tex. 
- 10 -

Crim. App. 2012) (finding plea of guilty involuntary based on counsel’s erroneous 

advice concerning parole eligibility). 

Counsel has the duty to advise a defendant how the law applies to the facts 

of the case to ensure that a guilty plea is both knowing and voluntary. Ex parte 

Morse, 591 S.W.2d 904, 905 (Tex. Crim. App. 1980). A failure to advise a

defendant how the facts of his case related to the charged offense constitutes 

deficient performance and prevents a guilty plea from being knowingly and 

voluntarily entered. Ex parte Gallegos, 511 S.W.2d 510, 513 (Tex. Crim. App. 

1974). 

Ebanks now complains his plea of guilty was involuntary because he was 

denied the effective assistance of counsel. Ebanks asserted his innocence of the 

charged offense during the guilty plea proceeding when he repeatedly claimed he 

did not intend to injure the child. Intent to cause the result of serious bodily injury 

is the essence of the offense charged against Ebanks. A plea of guilty while 

testifying to innocence cannot be free, voluntary, and intelligently entered. Upon 

the protestations of innocence during the plea proceeding, counsel should have 

moved to withdraw Ebanks’ previously entered plea of guilty because it was not 

freely and voluntarily entered. Allowing the plea proceedings to continue despite 

Ebanks’ assertion of no intent to injure the child was an act of deficient 
- 11 -

performance by trial counsel. Counsel failed to properly advise Ebanks on the 

elements of the offense and Ebanks was in no position to enter a plea of guilty to 

an offense he did not understand and denied committing. Prejudice is present 

because had Ebanks understood the elements of the offense in relation to his 

conduct, he would not have entered a plea of guilty and would have insisted upon a 

jury trial on a plea of not guilty. This Court should reverse the judgment of 

conviction due Ebanks’ involuntary guilty plea. 

Prayer

Ebanks prays this Court will reverse the judgment of conviction and remand 

for a new trial or enter any other relief from the judgment as appropriate under the 

facts and the law. 

Respectfully submitted,

/s/ Richard E. Wetzel

Richard E. Wetzel

State Bar No. 21236300

1411 West Avenue

Suite 100

Austin, TX 78701

(512) 469-7943

(512) 474-5594 – facsimile 

wetzel_law@1411west.com

Attorney for Appellant

Tyler David Ebanks 
- 12 -

Certificate of Compliance

This pleading complies with TEX. R. APP. P. 9.4. According to the word 

count function of the computer program used to prepare the document, the brief 

contains 2.353 words excluding the items not to be included within the word count 

limit. 

/s/ Richard E. Wetzel

Richard E. Wetzel

State Bar No. 21236300

Certificate of Service

I, Richard E. Wetzel, counsel for appellant, do hereby certify that a true and 

correct copy of the foregoing document was emailed to counsel for the State, Bob 

Odom, Assistant District Attorney, through the efile electronic service feature of 

this Court’s efile system at bob.odom@co.bell.tx.us on this the 14th day of July, 

2015. 

/s/ Richard E. Wetzel

Richard E. Wetzel

State Bar No. 21236300