1

No. 03-15-00392-CR

IN THE COURT OF APPEALS 

FOR THE THIRD JUDICIAL DISTRICT OF 

TEXAS AT AUSTIN, TEXAS 

********

TYLER DAVID EBANKS 

VS. 

THE STATE OF TEXAS 

********

ON APPEAL FROM THE 264th DISTRICT COURT 

OF BELL COUNTY, TEXAS 

Cause No. 72,912 

****** 

STATE’S BRIEF

****** 

 HENRY GARZA 

 DISTRICT ATTORNEY 

 BOB D. ODOM 

 ASSISTANT DISTRICT ATTORNEY 

 P.O. Box 540 

 Belton, Tx 76513 

 (254) 933-5215 

 FAX (254) 933-5704 

 DistrictAttorney@co.bell.tx.us 

 SBA No. 15200000 

Oral Argument Not Requested 

ACCEPTED

03-15-00392-CR

6153335

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/21/2015 11:24:31 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/21/2015 11:24:31 AM JEFFREY D. KYLE Clerk
2

TABLE OF CONTENTS

ITEM PAGE

Index of Authorities ........................................................................... 3

Statement Regarding Oral Argument ............................................... 4

Statement of the Case ........................................................................ 4

Statement of Facts .............................................................................. 5

Summary of State’s Argument .......................................................... 8

Argument and Authorities ................................................................ 9

Issue on Appeal ....................................................................... 9

APPELLANT RECEIVE INEFFECTIVE

ASSISTANCE OF COUNSEL WHEN COUNSEL 

DID NOT MOVE TO WITHDRAW WHEN HE 

TESTIFIED AT PUNISHMENT PHASE THAT 

HE DID NOT INTEND TO HURT THE CHILD?

Standard of Review ...................................................... 9

Application and Analysis ............................................. 11

Prayer ................................................................................................ 18

Certificate of Compliance with Rule 9 ............................................ 18

Certificate of Service ........................................................................ 19
3

INDEX OF AUTHORITIES

CASES PAGE

Bone v. State, 77 S.W.3d 828 (Tx. Cr. App. 2002) ........................... 10

Goodspeed v. State, 187 S.W.3d 390 (Tx. Cr. App. 2005) ............... 11

Jackson v State, 590 S.W. 2d 514 (Tx. Cr. App. 1979) .................... 12

Mallett v. State, 65 S.W.3d 59 (Tx. Cr. App. 2001) ......................... 13-15

Ex Parte Miller, 330 S.W.3d 610 (Tx. Cr. App. 2009) ..................... 10

Moon v. State, 572 S.W.2d 681 (Tx. Cr. App. 1978) ........................ 16

Settles v. State, No. 08-05-00133-CR, ............................................... 14-15

2006 Tex. App. LEXIS 9397, (Tx. App. El Paso 8th

Dist. 2006 no pet.), not designated for publication. 

State v. Morales, 253 S.W.3d 686 (Tx. Cr. App. 2008) ..................... 10

Strickland v. Washington, 466 U.S. 668 (1982) ............................... 10

Sullivan v. State, 573 S.W. 2d 1 (Tx. Cr. App. 1978) ........................ 16

Thompson v. State, 9 S.W. 3d 808 (Tx. Cr. App. 1999) .................... 10

OTHER

Texas Penal Code

Section 22.04(a)(1) ................................................................. 12
4

STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

STATEMENT OF THE CASE

The Appellant, Tyler David Ebanks, was charged by indictment 

with the offense of injury to a child with serious bodily injury. The 

indictment alleged that he intentionally and knowingly caused serious 

bodily injury to A.J., a child 14 years of age or younger, by striking him. 

(CR-4).

The Appellant waived his right to a jury trial and entered a plea of 

guilty. (CR-30; RR2-8). He judicially confessed to the offense as charged 

in the indictment. (CR-35; RR2-8, 9). There was no plea bargain with 

the State. (CR-30; RR2-5). The trial court found the evidence sufficient 

to support a finding of guilty, ordered a presentence investigation, and 

recessed the hearing. (RR2-10).

At the subsequent punishment hearing, after receiving evidence 

from both the State and the Appellant, the trial court assessed 

punishment at 30 years in the Texas Department of Criminal Justice 

Institutional Division. (CR-50; RR3-100). 
5

The Appellant gave timely notice of appeal (CR-54, 64) and the 

trial court certified his right to do so. (CR-65). No motion for new trial 

was filed. 

STATEMENT OF FACTS

Stephanie Jones left her 3 year old son, A.J., with the Appellant, his 

step-father, while she went shopping. A short time later she received a 

call from the Appellant telling her to “get home”. (RR3-6, 7). When she 

arrived she found the Appellant holding her son. He was unresponsive 

and she called 911. (RR3-7). The Appellant told her that A.J. had fallen 

from his crib, which was actually a type of play pen that sat low to the 

floor. (RR3-7, 19).

In the ambulance A.J. stopped breathing and he was airlifted to 

the McLane Children’s Hospital in Temple, Texas. (RR3-8). At the 

hospital Ms. Jones was advised the her son’s injuries did not match up to 

the Appellant’s version of what had occurred and Child Protective 

Services was called. (RR3-8). 

Three year old A.J. had suffered 2 skull fractures and was bleeding 

in his brain and behind his eyes. His right ear was broken. (RR3-8). He 

was kept in the intensive care unit of the hospital in a medically induced 
6

coma for 7 or 8 days, and then transferred to a children’s hospital in 

Dallas, where he remained for 2 1⁄2 weeks. (RR3-10, 11).

As a result of his injuries the child suffered brain damage that 

caused learning disabilities. He could no longer sit up by himself, walk, 

or hold a spoon. Extensive physical and speech therapy was necessary 

and continued at time of trial. His prognosis remained uncertain. (RR3-

8, 9, 10).

The Appellant eventually recanted his original claim that the child 

had fallen from the playpen crib and admitted to authorities that he 

struck the child. (RR3-8).

The Appellant entered a plea of guilty before Judge John Gauntt. 

The court carefully admonished him pursuant to Article 26.13 of the 

Texas Code of Criminal Procedure. (RR2-4-7). The court then went over 

with the Appellant the specific allegations in the indictment and the 

Appellant stated that his plea to those allegations was “guilty”. (RR2-7, 

8). The Appellant confirmed that his plea was freely and voluntarily 

entered and was not the result of any force or threats but that he was 

pleading guilty “...soley because you are guilty, and for no other reason.” 

(RR3-8).
7

The Appellant signed a judicial confession that affirmed that he 

had read the indictment and was guilty of the offense as alleged and 

stated to the court that he signed it fully understand it’s effect. (CR-35; 

RR2-7, 8). That judicial confession was admitted as State’s Exhibit 1 

without objection. (RR2-9). The trial court found the evidence sufficient 

to find the Appellant guilty but withheld a finding and recessed the 

hearing for the preparation of a presentence report. (RR2-10).

At the punishment hearing the State called Stephanie Jones to 

testify and then rested. The Appellant then presented testimony from 

Dr. William Lee Carter, a psychologist who had examined him, and his 

mother, Tammy Jennings. Dr. Carter stated that the Appellant had been 

physically and emotionally abused as a child (RR3-32) and that children 

who are abused tend to have difficulties with their own impulse control 

and anger. (RR3-35). He stated that the Appellant displayed the 

characteristics of narcissism and compulsive conduct. (RR3-36). Ms. 

Jennings confirmed that the Appellant was abused as a child by his 

father. (RR3-45).

The Appellant testified and admitted that he struck the 3 year old 

child on the side of the face, causing him to fall hitting the mattress and 

box springs of the bed. (RR3-66). He claimed that he did so to get the 
8

child’s attention, rather than to hurt him. (RR3-66, 67). The Appellant 

said that the child would not get in the bed in spite of the rules of the 

household that 2:00 to 4:00 p.m. was nap time. Nevertheless, the 3 year 

old child shook his head “no”. At that point the Appellant said that he 

stuck him on the face because “he knows the rules of the house.” (RR3-

65).

 On cross examination he admitted lying to his wife and to the 

police about what had happened. (RR3-80, 81). He acknowledged that 

he had told Dr. Carter that he just didn’t think a kid should run the 

house. (RR3-82, 83). 

SUMMARY OF STATE’S ARGUMENT

The Appellant unequivocally entered a plea of guilty and judicially 

confessed to the elements of the offense as charged in the indictment 

and the trial court took the case under advisement. At the subsequent 

punishment phase he attempted to mitigate punishment and denied 

that he had intended to hurt the child. He has failed to fulfill his burden 

to show that his counsel’s failure to request to withdraw his plea of 

guilty, if his testimony can be construed as a claim of innocence, was not 

part of a reasonable trial strategy and, thus fell below an objective 
9

standard of reasonableness. His trial counsel has been given no 

opportunity to explain his decision not to do so. Counsel is entitled to 

the presumption that his performance was constitutionally adequate.

The Appellant has also failed in his burden to show that but for his 

counsel’s alleged deficiency there is a reasonable probability that the 

results of the proceedings would have been different. 

ARGUMENT AND AUTHORITIES

Issue on Appeal

Did the Appellant receive ineffective assistance of counsel because 

his trial counsel did not move to withdraw his otherwise voluntary plea 

of guilty when he testified at the punishment phase that he did not 

intend to hurt the child?

Standard of Review

In order to establish ineffective assistance of counsel, the 

Appellant must prove by a preponderance of the evidence: (1) that his 

trial counsel’s performance was deficient in that it fell below an 

objective standard of reasonableness; and (2) that the deficient 

performance prejudiced him to such a degree as to deprive him of a fair 

trial. Such prejudice is demonstrated when the defendant shows a 
10

reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceedings would have been different. A reasonable 

probability is one sufficient to undermine confidence in the outcome of 

the proceeding. Strickland v. Washington, 466 U.S. 668, 687 (1982); 

Thompson v. State, 9 S.W.3d 808, 813-14 (Tx.Cr.App. 1999).

The Appellate Court does not view trial counsel’s performance by 

hindsight, but rather upon the facts of the particular case as they were 

at the time of counsel’s conduct. Thompson at 813. The Appellate Court 

must be highly deferential to the judgment of counsel and must 

presume that counsel’s actions fell within a range of reasonable and 

professional assistance. Bone v. State, 77 S.W.3d 828, 836 (Tx.Cr.App. 

2002). Thus, unless there is a record sufficient to demonstrate that 

counsel’s conduct was not the product of a strategic or tactical decision, 

a reviewing court should presume that trial counsel’s performance was 

constitutionally adequate unless that conduct was so outrageous that no 

competent attorney would engage in it. State v. Morales, 253 S.W.3d 

686, 696 (Tx.Cr.App. 2008). The fact that another attorney may have 

pursued a different tactic at trial is insufficient to prove a claim of 

ineffective assistance. Ex Parte Miller, 330 S.W.3d 610, 616 (Tx.Cr.App. 

2009).
11

Trial counsel should ordinarily be given an opportunity to explain 

his or her actions before being denounced as ineffective. Absent such an 

opportunity the appellate court should not find deficient performance 

unless the challenged conduct was so outrageous that no competent 

attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 

392 (Tx.Cr.App. 2005). 

Application and Analysis

The Appellant alleges that his counsel rendered ineffective 

assistance on the sole ground that he did not move to withdraw his plea 

of guilty when he testified at the punishment phase of the trial that he 

did not intend to hurt the child when he struck him. (RR3-66, 68). This, 

he contends, rendered his otherwise voluntary plea of guilty 

involuntary. He has failed to fulfill his burden of proof to show 

ineffectiveness on the part of trial counsel and, therefore, the Court 

must presume that counsel was effective. 

The trial court carefully admonished the Appellant and he 

confirmed that his plea of guilty was freely and voluntarily entered 

because he was guilty as charged in the indictment. (RR2-6-8). The 

court admitted his judicial confession admitting that he had read the 

indictment and that he committed each and every element of the offense 
12

charged therein. The indictment alleged that he had intentionally and 

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

younger, by striking him. (CR-4). The indictment included all of the 

elements of the offense of injury to a child as provided in Section 

22.04(a)(1) of the Texas Penal Code. The Appellant does not challenge 

the sufficiency of the evidence to support his plea. His plea of guilty was 

unequivocal. The trial court found the evidence sufficient to support a 

finding of guilt and the Appellant did not contest that finding. (RR2-10).

The court then took the case under advisement and ordered the 

preparation of a presentence report. 1

Some 2 months later when the case was reconvened counsel for 

the Appellant presented his case in mitigation of punishment, including 

the testimony of the psychologist and the Appellant’s mother. He then 

called the Appellant. In his testimony he admitted striking the 3 year 

old child on the face, knocking him down and lying about what 

happened to his wife and the authorities, however, he stated that he did 

 

1 After the trial court has admonished the defendant, received his plea 

and evidence, and passed the case for a presentence investigation it has 

taken the case under advisement and the plea may no longer be 

withdrawn as a matter of right. Jackson v. State, 590 S.W.2d 514, 515 

(Tx. Cr. App. 1979).
13

not intend to hurt the child but only to get his attention because he (the 

child) knew the rules of the house. (RR3-65, 66, 68). He told the 

psychologist that he just didn’t think a kid should run the house. (RR3-

82, 83). 

The Appellant now contends that his trial counsel should have 

moved to withdraw the plea when he said that he did not intend to hurt 

the child and failure to do so rendered the plea involuntary. He has 

cited nothing in the record to explain why counsel chose not to do so 

nor did he file a motion for new trial on that ground. The Appellant has 

failed in his burden to show that his counsel’s failure to request that he 

be allowed to withdraw his plea was not part of counsel’s reasonable 

trial strategy. 

The Appellant dismisses this failure by repeatedly stating, without 

citation of authority, that a plea of guilty while testifying to innocence 

cannot be freely, voluntarily, and intelligently entered. First, this 

assumes that his testimony was in fact a protestation of innocence, 

rather than an attempt at mitigation of punishment by minimizing his 

culpability. But even if that is the case, the courts have held that there 

are all sorts of considerations that may motivate a guilty plea. Mallett v. 

State, 65 S.W.3d 59, 64 (Tx. Cr. App. 2001). The record does not 
14

remotely indicate that the Appellant even wanted to withdraw his plea 

except by hindsight. There may have been many reasons why he 

wanted to continue with that plea even while trying to mitigate by 

minimizing his culpability.

In Mallett the defendant entered a plea of guilty to aggravated 

assault on a police officer. After entering his plea of guilty he testified 

that he did not intentionally try to run over the officer. He claimed his 

counsel was ineffective for not moving to be allowed to withdraw his 

plea. The Court of Criminal Appeals pointed out that the record, as in 

this case, did not indicate why counsel did not move to withdraw the 

defendant’s plea of guilty and noted that counsel might well have felt 

that he could not rebut the recitations in the record showing that his 

plea was freely and voluntarily entered. The Court of Criminal Appeals 

said that, in any event, such speculation as to a reasonable trial strategy 

was immaterial because the defendant had failed to satisfy his burden to 

show ineffective assistance absent anything in the record as to counsel’s 

reasons for failing to object. Mallett at 64, 65. See also Settles v. State, 

No. 08-05-00133-CR, 2006 Tex. App. LEXIS 9397 (Tx. App. El Paso 8th

Dist. 2006 no pet.), not designated for publication. (Where record shows 

the defendant pled guilty freely and voluntarily to the offense alleged in 
15

the indictment and was properly admonished a prima facie case that the 

plea was knowing and voluntary is established; and where the record is 

silent as to why the counsel did not request to withdraw the plea the 

defendant has failed to fulfill her burden of proof to show 

ineffectiveness.). 

In this case the record is very clear that the Appellant entered his 

plea of guilty to the exact offense charged in the indictment freely, 

voluntarily and intelligently and a prima facie case that the plea was so 

entered has been clearly established. There has been no showing as to 

what the trial strategy of counsel was in not requesting to withdraw his 

plea. Absent such evidence in the record counsel’s assistance must be 

presumed to have been constitutionally adequate and counsel should 

not be branded ineffective without being accorded an opportunity to 

explain his actions. 

Although it is not necessary to speculate as to what counsel’s trial 

strategy might have been in this regard where the Appellant has failed 

to fulfill his burden to show ineffectiveness, nevertheless it is probable,

as in Mallett and Settles, that he reasonably concluded that he could not 

rebut his unequivocal plea of guilty and judicial confession. Further, in 

light of the evidence of such severe injuries to the child that 
16

contradicted his claim that he struck a single blow and did not intend to 

hurt the child, might well have been a reasonable strategy to continue 

with his plea of guilty. 

The Appellant has also failed in his burden to show that, but for 

counsel’s alleged error in failing to request to withdraw his plea of 

guilty, the result of his trial would have been different. Whether or not

to allow him to withdraw his plea at the punishment stage of the trial 

after the case had been taken under advisement was entirely within the 

trial court’s discretion. The trial court was under no duty to sua sponte

withdraw the plea due to the Appellant’s testimony attempting to 

mitigate punishment by minimizing his intent to hurt the child. The trial 

court was under no duty to do so because it had withheld its finding of 

guilt pending the preparation of the presentence report. The court had 

the option, after considering all of the evidence, to find the Appellant not 

guilty should it believe the facts required it without withdrawing the 

plea. Sullivan v. State, 573 S.W.2d 1, 4 (Tx. Cr. App. 1978), op. on 

rehearing, citing Moon v. State, 572 S.W.2d 681 (Tx. Cr. App. 1978). 

The court heard Appellant’s testimony at punishment and could 

have found him not guilty based upon his denial of intent but did not do 
17

so. There is no reason to believe that the court would have granted his 

request had it been made or that he would have been found not guilty. 

Great difference must be given to the judgment of trial counsel 

and he must be presumed to have rendered reasonable and professional 

assistance. Absent anything in the record to show that his conduct was 

not the product of strategic or tactical decisions counsel is also entitled 

to the presumption that he rendered constitutionally adequate 

assistance unless the record establishes conduct so outrageous that no 

competent attorney would engage in it. There has been no such 

showing in this case and no opportunity was even afforded counsel to 

answer the accusations against him. The Appellant has failed in his 

burden and the judgment of conviction must be affirmed. 
18

PRAYER

The State of Texas respectfully prays that the judgment of 

conviction herein be, in all things, be affirmed.

Respectfully Submitted,

HENRY GARZA

District Attorney

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney

P.O. Box 540

Belton, Tx 76513

(254) 933-5215

FAX (254) 933-5704

DistrictAttorney@co.bell.tx.us

SBA No. 15200000

CERTIFICATE OF COMPLIANCE WITH RULE 9

This is to certify that the State’s Brief is in compliance with Rule 9 

of the Texas Rules of Appellate Procedure and that portion which must be 

included under Rule 9.4(i)(1) contains 2,701words.

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney
19

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this brief has been 

served upon, Richard E. Wetzel, Counsel for Appellant, by electronic 

transfer via Email, addressed to him at: wetzel_law@1411west.com, on 

this 21st day of July, 2015.

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney