01-15-00135-CR

In the First Court of Appeals of Texas

Pete Rodriguez,

Appellant

v.

The State of Texas,

Appellee

On Appeal from Cause 1389063

In the 182nd District Court of Harris County 

Brief for Appellant

Oral Argument Requested Franklin Bynum

Texas Bar Number 24069451

franklin@bynumlaw.net

Bynum Law Office PLLC

2814 Hamilton Street

Houston, Texas 77002

(713) 343-8844

Counsel for Appellant

ACCEPTED

01-15-00135-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

9/8/2015 12:16:36 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 9/8/2015 12:16:36 AM CHRISTOPHER A. PRINE Clerk
2

Identity of Parties and Counsel

Appellant Pete Rodriguez

SPN 01763152

Harris County Jail

701 North San Jacinto

Houston, Texas 77002

Defense Counsel at Trial Mickel Newton, Jr.

PO Box 772914

Houston, Texas 77215

Prosecutor at Trial Stephen Driver

Assistant District Attorney

Harris County District Attorney’s Office

1201 Franklin Street, 6th Floor

Houston, Texas 77002

Judge Presiding The Honorable Jeannine Barr

182nd District Court

1201 Franklin Street, 18th Floor

Houston, Texas 77002

Appellant’s Counsel Franklin Bynum

Bynum Law Office PLLC

2814 Hamilton Street

Houston, Texas 77004
3

Table of Contents

Identity of Parties and Counsel ............................................................................ 2

Table of Contents............................................................................................... 3

Index of Authorities............................................................................................ 5

Statement of the Case......................................................................................... 7

Issues................................................................................................................ 7

Statement of Facts.............................................................................................. 8

Argument.........................................................................................................11

Issue One: The trial judge may not give an incorrect admonishment 

regarding eligibility for community supervision. In this case, the trial judge 

told the defendant that he was not eligible for community supervision from 

a jury, when in fact he was, and he relied on the incorrect admonishment 

when he elected for court punishment. Was the judge’s incorrect 

admonishment harmful error? ............................................................11

A. The law authorizes community supervision from a jury here...... 11

B. The trial judge committed fundamental error when she foreclosed 

the possibility of probation................................................................12

C. This is structural error not subject to harm analysis....................14

Issue Two: Trial counsel must give accurate advice regarding eligibility for 

community supervision. The trial lawyer here incorrectly advised that 

community supervision was not available from a jury, and his client relied 

detrimentally on that advice. Was trial counsel ineffective for giving 

incorrect advice about eligibility for community supervision?................ 15

A. Strickland requires proof of deficient conduct by preponderance 

of the evidence, then proof of prejudice by less than a preponderance 

of the evidence .................................................................................. 15

B. Mr. Rodriguez was eligible and would have sought probation had 

he been correctly informed about his eligibility................................. 17
4

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

Certificate of Compliance ..................................................................................18

Certificate of Service .........................................................................................18
5

Index of Authorities

Cases

Arizona v. Fulminante, 499 U.S. 279 (1991)............................................................. 14

Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000).............................................. 17

Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006)........................................ 14

De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004)....................................... 13

Ex parte Williams, 704 S.W.2d 773 (Tex. Crim. App. 1986) .................................... 13

Harrison v. State, 688 S.W.2d 497 (Tex. Crim. App. 1985) ..................................... 13

Jefferson v. State, 803 S.W.2d 470 (Tex. App–Dallas 1991) ..................................... 14

McClenan v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983).................................... 13

Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App. 1992).......................................... 16

State v. Recer, 815 S.W.2d 730 (Tex. Crim. App. 1991)............................................ 17

Strickland v. Washington, 466 U.S. 668 (1984) ...................................................15, 16

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006)............................................. 14

Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986).................................... 15

Statutes

Tex. Code. Crim. Proc. Ann. art. 26.12 (West, WestlawNext through the end of the 

84th Legislature)................................................................................................. 13

Tex. Code. Crim. Proc. Ann. art. 42.12 § 4(d) (West, WestlawNext through the end 

of the 84th Legislature).......................................................................................12

Online Sources

John Bradley, ‘Jessica’s Law’ comes to Texas, TDCAA website, 2007, 

http://www.tdcaa.com/node/1450. .................................................................... 11
6

Legislative Materials

H.B. 7, 80th Leg. (Tex. 2007)................................................................................. 11

H.B. 7, introduced version, 80th Leg. (Tex. 2007). ................................................ 11
7

Statement of the Case

A Harris County grand jury indicted Pete Rodriguez on November 6, 2013 for indecency with a child.

1 Rodriguez pleaded not guilty and 

the case proceeded to jury trial on January 15, 2015.2 On January 21, 

2015, the jury found Rodriguez guilty as charged in the indictment and 

the judge imposed a ten-year prison sentence.

3 Rodriguez gave notice of 

appeal on February 4, 2015.

4

Issues

Issue One: The trial judge may not give an 

incorrect admonishment regarding eligibility 

for community supervision. In this case, the 

trial judge told the defendant that he was not 

eligible for community supervision from a 

jury, when in fact he was, and he relied on the 

incorrect admonishment when he elected for 

court punishment. Was the judge’s incorrect

admonishment harmful error?

Issue Two: Trial counsel must give accurate 

advice regarding eligibility for community 

supervision. The trial lawyer here incorrectly 

advised that community supervision was not 

available from a jury, and his client relied 

detrimentally on that advice. Was trial 

 

1 (C.R. at 16) 2 (3 R.R. at 128) 3 (7 R.R. at 5) 4 (C.R. at 123)
8

counsel ineffective for giving incorrect advice 

about eligibility for community supervision?

Statement of Facts

The complainant in this case, whose birthday appears in the record, 5 described several times when her genitals were touched. The prosecutor asked her what happened in “November 2012” and she said that 

Mr. Rodriguez had come into the living room of the apartment—where 

she slept on the couch, and others slept nearby—and touched her “middle part” over her clothes without touching her skin.6

The complainant also claimed that Mr. Rodriguez touched her 

“skin to skin one time” without providing any information about when 

that might have happened or providing any other details about how she 

was touched that time.

7

She described the first time she remembers being touched was in 

“fourth grade,” when she said that he used his “hand” to touch her 

“middle part”without saying whether it was over clothes.8 After fourth 

grade, it happened “more than once,” but she did not say how many 

times or when.

9

 

5 The birthdate appears at Volume 5, Page 23, Line 10 and is not repeated here because the Rules 

define it as “sensitive data.” Tex. R. App. P. 9.10.

6 (5 R.R. at 35-37) 7 (5 R.R. at 38)

8 (5 R.R. at 53)

9 (5 R.R. at 54)
9

At a pretrial conference before jury selection and before the defendant’s plea and punishment election, the judge said: “So, then if you 

go forward with the case as it's charged, it is a second-degree felony, two 

years to 20 years in prison. If you’re found guilty, the jury cannot assess 

probation. You understand that?”10 The judge continued: 

the court: Okay. And that's because—just 

so that the record’s clear, Section 42.12, Section 4(d), as in dog, 5. Because it’s my understanding that the age of the victim at the time 

of the offense was under 14? 

[prosecutor]: Yes, Judge.

the court: Okay.11

And then, to emphasize the point once more:

the court: So, I just want to make sure 

that you understand that, that if in the event 

that there is a finding of guilt, probation—the 

jury can’t even give you probation. Do you 

understand that? 

the defendant: Yes, ma’am. 

the court: Okay. And is—at this time it is 

your choice to go forward with the trial? 

the defendant: Yes, ma’am.

 

10 (2 R.R. at 6)

11 (2 R.R. at 6)
10

Mr. Rodriguez completed a punishment election selecting jury 

punishment.12 He did not file a motion for community supervision. After the guilty verdict, Mr. Rodriguez switched his election to judge punishment, with the State’s consent.13

The defense lawyer rested without calling any punishment witnesses and without making any argument.14

Appellate counsel filed a motion for new trial alleging that the 

trial lawyer incorrectly advised Mr. Rodriguez that he was not eligible 

for community supervision.

15

The trial court held a hearing on the motion for new trial, by affidavit.16 The trial court admitted an affidavit by the defense lawyer saying 

that his understanding was that Mr. Rodriguez was not eligible for community supervision.17 Mr. Rodriguez stated in his affidavit that he relied 

to his detriment on the statements by both his lawyer and the trial judge, 

and that had he known he was eligible for community supervision he 

would have filed a sworn motion for community supervision and sought 

a probated sentence from the jury.18 Mr. Rodriguez added that he would 

 

12 (C.R. at 106)

13 (7 R.R. at 4)

14 (7 R.R. at 5)

15 (C.R. at 128)

16 (1A R.R. at 4) 17 (C.R. at 158)

18 (C.R. at 156)
11

have testified on his own behalf had he known he was eligible for community supervision.19 The trial court denied the motion for new trial.20

Argument

Issue One: The trial judge may not give an 

incorrect admonishment regarding eligibility 

for community supervision. In this case, the 

trial judge told the defendant that he was not 

eligible for community supervision from a 

jury, when in fact he was, and he relied on the 

incorrect admonishment when he elected for 

court punishment. Was the judge’s incorrect 

admonishment harmful error?

A. The law authorizes community supervision from a jury here

In 2007, the Texas Legislature passed, and the governor signed, 

House Bill 8, known as “Jessica’s Law.”21 The bill as originally introduced created a new first-degree felony for indecency by contact with a 

child under 14, and made the new offense not eligible for community 

supervision from a jury.

22 The enrolled version of the bill kept the restriction on community supervision, but dropped the new offense.23

 

19 (C.R. at 155)

20 (1A R.R. at 13)

21 John Bradley, ‘Jessica’s Law’ comes to Texas, TDCAA website, 2007, 

http://www.tdcaa.com/node/1450. 22 H.B. 7, introduced version, 80th Leg. (Tex. 2007).

23 H.B. 7, 80th Leg. (Tex. 2007).
12

And so, the law today is that indecency with a child by contact is 

a second-degree felony that is eligible for community supervision, unless the complainant is under 14.24 Since the age of the complainant is 

not an element of the offense, the mechanism for determining the age 

of the complainant—and eligibility for community supervision—is the 

same as any other eligibility requirement of 42.12 § 4: the fact issue is

submitted to the jury, and if they found—among other requirements—

that the complainant was 14 or older at the time of the offense, they 

would be empowered to probate the sentence.25

Since the indictment and the jury charge authorize a conviction 

for the offense if it occurred anytime within the limitations period—and 

there is no limitations period—the jury would be required to make a 

specific finding at punishment regarding the age of the complainant to 

probate the sentence.

B. The trial judge committed fundamental error when she 

foreclosed the possibility of probation

This is apparently a case of first impression, regarding a judge’s 

duty to provide correct information regarding eligibility for community 

supervision to a defendant who is pleading not guilty.

 

24 See Tex. Code. Crim. Proc. Ann. art. 42.12 § 4(d) (West, WestlawNext through the end of the 

84th Legislature). 25 See Id.
13

There are scores of cases analyzing incorrect information in the 

context of a guilty plea, and they are unanimous: “a trial court has no 

duty to admonish as to the availability of probation,” but if a judge 

chooses to admonish regarding eligibility before a plea of guilty, the admonishment must be correct.26 The source of the judge’s duty to provide accurate information is the statute providing the procedure for 

guilty pleas.

27

The statutory procedure for not-guilty pleas is far less detailed, 

of course, because a plea of not guilty does not require waiving any 

rights: “If the defendant answers that he is not guilty, such plea shall be 

entered.”28 Yet, if the judge chooses to volunteer information about the 

availability of community supervision, that information must be correct; the source of this duty is foundational principles of Due Process 

under the Fifth and Fourteenth Amendments and Due Course of Law 

under the Texas Constitution.29

Even though probation is not part of the range of punishment, the 

incorrect admonishment here is analogous to a judge announcing that 

 

26 Harrison v. State, 688 S.W.2d 497, 499 (Tex. Crim. App. 1985). 27 Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986) (“trial court may impose a duty 

upon itself under Article 26.13(a)(1) to admonish a defendant accurately as to the availability of

probation”). 28 Tex. Code. Crim. Proc. Ann. art. 26.12 (West, WestlawNext through the end of the 84th Legislature).

29 See McClenan v. State, 661 S.W.2d 108, 109 (Tex. Crim. App. 1983) overruled on other grounds by

De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004).
14

she will not consider the full range of punishment, a practice that is 

strictly forbidden.30

C. This is structural error not subject to harm analysis

This case presents a dramatic systemic failure, in which the trial 

judge, the prosecutor, and the defense lawyer all unwittingly conspired 

to deprive Pete Rodriguez of the opportunity to seek community supervision from the jury. The ultimate responsibility for this failure rests 

with the trial judge, whose incorrect admonishment amounted to systemic error.

This is one of the “structural defects in the constitution of the 

trial mechanism, which defy analysis by ‘harmless-error’ standards.”31

Only a few categories of error count as structural defects; the quality 

they share is that they affect “the framework within which the trial proceeds, rather than simply an error in the trial process itself.”32

In cases like this, harmless-error analysis fails to be anything but 

a constitutionally impermissible “speculative inquiry into what might 

have occurred in an alternative universe.”33

In this case, what would have happened if the judge had announced the correct law, if a jury were selected with questions about 

 

30 See, e.g., Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006); Jefferson v. State, 803 S.W.2d 

470, 471 (Tex. App–Dallas 1991). 31 Arizona v. Fulminante, 499 U.S. 279, 309 (1991). 32 Id.

33 United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006).
15

probation, if the defense were made with the aim of making Mr. Rodriguez eligible for probation, if Mr. Rodriguez had not changed his punishment election to the judge from the jury. There are simply too many 

inquiries to make for an effective harm analysis. Under Fulminate and 

its progeny, this case presents systemic error that requires reversal without a harm analysis.

Issue Two: Trial counsel must give accurate 

advice regarding eligibility for community 

supervision. The trial lawyer here incorrectly 

advised that community supervision was not 

available from a jury, and his client relied 

detrimentally on that advice. Was trial 

counsel ineffective for giving incorrect advice 

about eligibility for community supervision?

Trial counsel prepared the entire defense under the misunderstanding that Mr. Rodriguez was not eligible for community supervision. His failure to properly advice Mr. Rodriguez was ineffective assistance of counsel.

A. Strickland requires proof of deficient conduct by 

preponderance of the evidence, then proof of prejudice by 

less than a preponderance of the evidence

A defendant in a criminal case is entitled to the reasonably effective assistance of counsel34. Under the standard set out by the United 

 

34 Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).
16

States Supreme Court in Strickland v. Washington,

35 a defendant seeking 

relief as a result of trial counsel’s inept performance must first show that 

counsel’s performance was deficient and then demonstrate that this deficient performance prejudiced the defense.36 Trial counsel’s performance is measured against an “objective standard of reasonableness” 

evaluated considering “prevailing professional norms.”37

The two-part Strickland test carries two distinct burdens of proof: 

first, the defendant must prove deficient performance by a preponderance of the evidence; second, the defendant must prove that the outcome may have been different, but, importantly, prejudice need not be 

proven by a preponderance of evidence.

38 “The result of a proceeding 

can be rendered unreliable, and hence, the proceeding itself unfair, even 

if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.”39

Applying that framework to this exact situation, the Court of 

Criminal Appeals requires: 1) evidence that the defendant was initially 

eligible to receive probation; 2) that counsel's advice to go to the trial 

judge for sentencing was not given as part of a valid trial strategy; 3) that 

the defendant's decision to have the judge assess punishment was based 

 

35 466 U.S. 668, 698 (1984). 36 Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992). 37 Strickland, 466 U.S. at 688. 38 Id. at 694-96. 39 Id.
17

on his attorney’s erroneous advice; and 4) that the defendant's decision 

would have been different if her attorney had correctly informed her of 

the law. 40

B. Trial counsel was ineffective because Mr. Rodriguez was 

eligible and would have sought probation had he been 

correctly informed about his eligibility

Mr. Rodriguez stated in his affidavit admitted at hearing on the 

motion for new trial that he had not been convicted of a felony in this or 

any other state, and that he based his decision to not seek probation 

based on his lawyer’s faulty advice. He stated that he would have sought 

probation had he known then what he knows now. He also stated that 

the incorrect advice interfered with his decision to testify in his defense.

Trial counsel has no strategic reason for his action. This is a classic case 

of ineffective assistance of counsel.

Consider also that ineffective assistance may be the preferred 

procedural method—when available, as it is here—to address claims of 

fundamental error.41

Mr. Rodriguez need only show a reasonable possibility that the result would have been different. With a decent defense lawyer putting on 

an actual defense, there would have been a reasonable possibility that 

the result would have been different. The record does not contain much 

 

40 State v. Recer, 815 S.W.2d 730, 731-32 (Tex. Crim. App. 1991). 41 See Blue v. State, 41 S.W.3d 129, 144 (Tex. Crim. App. 2000) (Keller, P.J., dissenting).
18

evidence regarding the dates of the contact, but the jury charge authorized, and the jury was free to convict, based on any theory at all within 

the limitations period. With a defense that made a sound, strategic attack on the uncertainty regarding dates, there is a reasonable possibility 

the result would be different.

Prayer

Pete Rodriguez prays that this Honorable Court reverse the judgment of conviction and remand for a new trial.

Certificate of Compliance

The word-processing software used to write this brief reports its 

length as 2724 words before subtracting for any of the contents that may 

be excluded under Rule 9.4(i)(1). 

Certificate of Service

I provided this brief to the Harris County District Attorney by 

electronic service to curry_alan@dao.hctx.net simultaneously with the 

electronic filing of this document.

Respectfully,

/s/ Franklin Bynum

Bynum Law Office PLLC Franklin Bynum

2814 Hamilton Street Texas Bar Number 24069451

Houston, Texas 77002 franklin@bynumlaw.net

(713) 343-8844