01

- 15

- 00 135

- CR
In the First Court of Appeals of Texas

Pete Rodriguez

, Appellant

v

. The State of Texas, Appellee

On A ppeal from Cause 1389063 In the 18 2nd 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

CLERK2 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 B ox 772914 Houston, Texas 77215

Prosecutor at Trial Stephen Driver Assistant District Attorney Harris County District Attorney’s Office 1201 Franklin Street, 6 th Floor Houston, Texas 77002
Judge Presiding The Honorable Jeannine Barr 18 2nd District Court 1201 Franklin Street , 18 th Floor Houston, Texas 77002
Appellant’s Counsel Franklin Bynum Bynum Law Office PLLC 2814 Hamilton Street Houston, Texas 770043 Table of C ontents 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 admonis hment 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 eligibil ity 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 eligibili ty for community supervision?

................ 15

A. Strickland requires proof of deficient conduct by preponderance of the evidence, then proof of prejudice by less than a prepon derance of the evidence

................................ ................................ .................. 15

B. Mr. Rodriguez was eligible and would have sought probation had he been correctly informed about his eligibility

................................ . 174 Prayer

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

................................ ................................ .................. 18

Certificate of Service

................................ ................................ ......................... 185 Index of A uthorities

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. 3 d 1 (Tex. Crim. App. 2004 ).

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

................................ .... 13

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

................................ ..... 13

Je ff

erson v. State , 803 S.W. 2 d 470 (Tex. App

– Dallas 1991 )

................................ ..... 14

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

................................ .... 13

Miniel v. State , 831 S.W. 2 d 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. 2 d 542 (Tex. Crim. App. 1986 )

................................ .... 15

Statutes

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

................................ ................................ ................................ 13 Tex. Code. Crim. Proc. Ann. art. 42.12 § 4(d ) (West, WestlawNext through the end of the 84 th Legislature).

................................ ................................ ...................... 12

Online Sources
John Bradley, ‘Jessica’s Law’ comes to Texas , TDCAA website, 2007 , http://www.tdcaa.com/node/ 1450.

................................ ................................ .... 116 Legislative Materials

H.B. 7, 8 0 th Leg. (Tex. 2007 )

................................ ................................ ................. 11

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

................................ ................ 117 Statement of the C ase A Harris County grand jury indicted Pete Rodriguez on November 6, 2013 for indecency with a c hild

. 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

ap peal on February 4, 2015

. 4

I ssue s

Issue One : The tr ial 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 co mmunity supervision from a jury, when in fac t he was , and he relied on the incorrect admonishment when he elected for court punishment

. W as 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 ine ff ective for giving incorrect advice about eligibility for community supervision?

Statement o f F actsThe 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 inform ation 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)9At a pretrial conference before jury selection and before the defendant’s plea and punishment election, the judge s aid: “ 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 o ff ense 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. 13The 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 a ffi

davit. 16 The trial court admitted an a ffi davit by the defense lawyer saying

that his understand ing was that Mr. Rodriguez was not eligible for community supervision. 17 Mr. Rodriguez stated in his a ffi davit 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 an d 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)11have 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

A rgument

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 adm onishment 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 L egislature 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 o ff ense not eligible for community supervision from a jury

. 22 The enrolled version of the bill kept the restrictio n on community supervision, but dropped the new o ff ense. 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 compla inant is

not an element of the o ff ense, t he 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 o ff ense, they would be empowered to probate the sentence. 25 Since the indictment and the jury charge authorize a conviction

for the o ff ense 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 commi tted fundam ental error when she foreclosed the possibility o f 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 defen dant 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 T here 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 t o the availability of probation , ” but i f 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 inform ation must be correc t; t he 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

incorr ect 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 u nder 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 Mc Clenan 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 conspiredto deprive Pete Rodriguez of the opportunity to seek community supervision from the jury. The ultimate responsibility for this failure rests with the trial judge, wh ose incorrect admonishment amounted to systemic error.
This is one of the “ structural defects in the constitution of the

trial mec hanism, which defy analysis by ‘harmless

- error’ standards .” 31 Only a few categories of error count as structural defects; the q uality they share is that they a ff ect “ 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 “ speculat ive inquiry into what might

have occurred in an alternative universe .” 33

In this c ase, 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) ; Je ff

erson 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 maki ng 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 e ff ective harm analysis. Under Fulminate and its progeny, this case presents sy stemic 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 ine ff ective 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 ine ffective assistance of counsel.

A. Strickland requires proof of deficient conduct by preponderance of the evidence, then proof of prejudice by less than a preponderance o f the evidence
A defendant in a criminal case is entitled to the reasonably e ffective assistance of counsel 34 . 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 counse l’s inept performance must first show thatcounsel’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 di ff erent, 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, evenif 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 tr ial strategy; 3) that the defendant's decision to have the judge assess punis hment 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 di ff erent if her attorney had correctly informed her of

the law. 40

B. Trial c ounsel was ine ff ective because Mr. Rodriguez was eligible and would have sought probation had he been correctly informed about his eligibility
Mr. Rodriguez stated in his a ffi davit admitted at hearing on the

motion for new trial that he had not been convi cted 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 advi ce interfered with his decision to testify in his defense. Trial counsel has no strategic reason for his action. This is a classic case

of ine ff ective assistance of counsel.

Consider also that ine ff ective assistance may be the preferred procedural method

— w hen 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 di ff erent. With a decent defense lawyer putting on an actual defense, there would have been a reasonable possibility that

the result would have been di ff erent. 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 o f the contact, but the jury charge authorized, and the jury was free to convict, based on any theory at all withinthe limitations period. With a defense that made a sound, strategic attack on the uncertainty regarding dates, there is a reasonable possibil ity

the result would be di ff erent.

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

. Certificate of C ompliance
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 S ervice 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