Appellant Requests

Oral Argument CAUSE NO. 07-13-00114-CR

SEVENTH COURT OF APPEALS

IN AND FOR THE STATE OF TEXAS

***************

EMANUEL ESCOBEDO,

Appellant

VS.

STATE OF TEXAS,

Appellee

****************

On Appeal from the 108 th District Court

Potter County, Texas in Cause No. 67,998-E

Honorable Doug Woodburn, Judge Presiding

****************

APPELLANT’S BRIEF

**************** ACCEPTED

07-15-00034-CR

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

9/17/2015 5:30:34 PM

Vivian Long, ClerkIDENTITY OF THE PARTIES AND COUNSEL

APPELLANT: EMANUEL ESCOBEDO

TRIAL COURT: HONORABLE DOUG WOODBURN

108 th District Court, Potter County

501 S. Fillmore, Suite 4A

Amarillo, TX 79101

STATE’S ATTORNEY: JENNIFER BASSETT

SBN: 02145532

COULTER GOODMAN

SBN: 24086495

Potter County District Attorney

501 S. Fillmore, Suite 5A

Amarillo, TX 79101

(806) 379-2325

TRIAL COUNSEL: RON SPRIGGS

SBN: 00792853

1011 S. Jackson Street

Amarillo, TX 79101

(806) 376-7260

APPELLANT’S COUNSEL: DARRELL R. CAREY

SBN: 03791700

Law Office of Darrell R. Carey

300 15 th Street

Canyon, Texas 79015

(806) 655-4529

(806) 655-7250

- facsimile

APPELLEE’S COUNSEL: Potter County District Attorney

501 S. Fillmore, Suite 5A

Amarillo, TX 79101

(806) 379-2325

iTABLE OF CONTENTS

Identity of Parties

............................................................................................................................ i

Table of Contents

........................................................................................................................... ii

Index of Authorities

...................................................................................................................... iii

Statement of the Case

.................................................................................................................... 1

Issues Presented

............................................................................................................................. 3

ISSUE NO. ONE.

Trial counsel representation of the Defendant was so deficient that counsel was not

functioning as acceptable counsel under the sixth amendment.

ISSUE NO. TWO.

Trial counsel was ineffective to the point that there is a reasonable probability that if it

would not have been for the unprofessional error of counsel that the proceedings would

have been different.

Statement of Facts

.......................................................................................................................... 3

Summary of the Argument

........................................................................................................... 5

Argument and Authorities

............................................................................................................ 6

Prayer

............................................................................................................................................ 10

iiINDEX OF AUTHORITIES

State Cases

Published

Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984)

................................................... 7-8

Arrington v. State

, 413 S.W.3d 106, 110 (Tex. App.

— San Antonio 2013, pet. granted)

............ 6-9

Cosio v. State, 353 S.W.3d 766, 771 (Tex.Crim.App.2011).

....................................................... 5-7

Fulcher v. State, 274 S.W.3d 713, 716 (Tex.App.-San Antonio 2008, pet. ref'd)

........................... 7

Gelinas v. State, 398 S.W.3d 703, 710 (Tex.Crim.App.2013)

....................................................... 8

Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996)

.......................................................... 7

Phillips v. State, 193 S.W.3d 904, 913

– 14 (Tex.Crim.App.2006)

................................................. 7

Ngo v. State, 175 S.W.3d 738, 752 (Tex. Crim. App. 2005)

...................................................... 6, 9

Stuhler v. State, 218 S.W.3d 706, 717 (Tex.Crim.App.2007)

........................................................ 6

Rivera v. State

, 123 S.W.3d 21, 28 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref'd)

.......... 5-6, 9

CODES, STATUTES, AND RULES

T EX

. C ONST

. ART

. V, § 13

............................................................................................................. 4, 6

T EX

. C RIM

. P ROC

. C ODE A NN

. ART

. 36.29 (V ERNON )

..................................................................... 4

TEX. R. EVID. 609(d)

....................................................................................... 8

TEX. CRIM. PROC. CODE ANN. § 37.07 Sec. 3 (a) 1................................................ 8

iiiSTATEMENT OF THE CASE

On October 18, 2013, Complaint was filed against Emanuel Escobedo (hereinafter

“Appellant”) charging with Delivery of a Controlled Substance PG 1 => 4g < 200g (CR 1 5). On

June 25, 2014 Appellant was charged by indictment with Delivery of a Controlled Substance PG

1 => 4g < 200g/ Enhanced in Cause No. 67,998-D in the 320th Judicial District Court of Potter

County, Texas (CR 1 13). An Order Transferring Criminal Case transferring the case to the

108th District Court was signed on June 16, 2014 (CR 1 14). On November 7, 2013, Mike

Watkins was appointed as the attorney of record for Emanuel Escobedo in Cause No. 67,998-Z

and 67,999-Z (CR 1 7). On November 15, 2013, Ron Spriggs filed an Appearance of Counsel on

Cause No. 67,998-Z (CR 1 11).

On January 6, 2015, Cause No. 67,998-E proceeded to jury trial (RR 2 5). On January 6,

2015, Counsel for Defendant filed Objections to the Indictment (CR 1 19-20). On January 6,

2015, the Court denied the Defendant’s Objection to Indictment (CR 1 21). On January 6, 2015,

Counsel for the Defendant filed Motion to Prevent State from Reading of Alluding to

Nonjurisdictional Enhancement Count at or before Guilt/ Innocent Phase (CR 1 22-23). On

January 6, 2015, the Court denied the Motion to Prevent State from Reading of Alluding to

Nonjurisdictional Enhancement Count at or before Guilt/ Innocent Phase (CR 1 24). On January

7, 2015, Defendant Emanuel Escobedo was found guilty of Delivery of a Controlled Substance

PG 1 => 4g < 200g (RR 4 139). On January 7, 2015, the State announced the Enhancement on

the Indictment (RR 3 117). On January 7, 2015, the Defendant plead not true to the

Enhancement (RR 3 117). On January 7, 2015, the jury found the Enhancement paragraph was

true on Defendant Emanuel Escobedo (RR 3 267).

On January 7, 2015, the Defendant was sentenced to 50 years in Texas Department of

Criminal Justice Institutional Division with a $10,000.00 fine. (RR 5 115). Counsel for the

1Defendant filed a Notice of Appeal on January 8, 2015 (CR 1 17-18). The Judgment of

Conviction by Jury was entered on January 13, 2015 (CR 1 41-43). Counsel for the Appellant

filed Motion for New Trial and Motion for Arrest in Judgment on January 29, 2015 (CR 1 47-

49). Counsel for the Appellant filed their Notice of Appeal on January 29, 2015 (CR 1 50-51).

The Court filed the Order to Withdraw Funds from the Inmate Trust Account for Emanuel

Escobedo on February 3, 2015 (CR 63).

2ISSUES PRESENTED

ISSUE NO. ONE

Trial counsel representation of the Defendant was so deficient that counsel was not functioning

as acceptable counsel under the sixth amendment.

ISSUE NO. TWO

Trial counsel was ineffective to the point that there is a reasonable probability that if it would not

have been for the unprofessional error of counsel that the proceedings would have been different.

STATEMENT OF FACTS

Approximately one week before May 1, 2013, Officer Treadwell of the Amarillo Police

Department made contact with the Defendant Emmanuel Escobedo (RR 2 179). Officer

Treadwell was introduced to the Defendant by a third party (RR 2 180). The Defendant gave

Officer Treadwell his number at the time of the introduction (RR 2 180). Officer Treadwell

stayed in constant contact with the Defendant until he had arranged to make a purchase from the

Defendant on May 1, 2013 (RR 2 190). The time and the location for the purchase was set up by

the parties (RR 2 196). The Defendant met up with Officer Treadwell at Fox Fast Stop and

Defendant got in the Officer’s car (R 2 205). The Officer gave him $400 for the product and told

the Defendant to count out the money and make sure it is correct (RR 2 208). The Defendant left

and the Officer took the methamphetamine to the police department (RR 2 212). Officer

Treadwell testified that they did not arrest the Defendant on that date since the police

investigation was on going (RR 2 232).

On November 7, 2013, the Defendant was arrested and booked in to Potter County

Detention Center (RR 3 36). On November 8, 2013, the Defendant placed a call from Potter

County Jail to a “Mirian” (RR 3 67). The Defendant told the party on the other line he was

3arrested for selling to an undercover (RR 3 68). Officer Treadwell testified that the Defendant

was talking to the Defendant’s mother in the phone call and that the Defendant was trying to

explain to his mother that the charges against him related to him possibly selling to an

undercover cop (RR 3 72). Cause No. 67,998-E proceeded to jury trial on January 6, 2015 (RR 2

5). On January 7, 2015, Defendant Emanuel Escobedo was found guilty of Delivery of a

Controlled Substance PG 1 => 4g < 200g (RR 3 115). On January 7, 2015, the State announced

the Enhancement on the Indictment (RR 3 117). On January 7, 2015, the Defendant plead not

true to the Enhancement (RR 3 117).

On January 7, 2015, the State called Officer Treadwell back to the stand regarding a

purchase that Treadwell had made from the Defendant on May 7, 2013 (RR 3 120). Officer

Treadwell testified that on May 7, 2013 that he met the Defendant at the Food Bank located 815

South Ross (RR 3 121). The purchase of half ounce of methamphetamine was made by Officer

Treadwell for the amount of $630.00 (RR 3 131). Rebecca Escobedo, the mother of the

Defendant testified regarding the Defendant (RR 3 203). Ms. Escobedo testified that her son was

a good father to his son (RR 3 203) and that he worked two jobs to provide for his family (RR 3

204). Ms. Escobedo testified that the Defendant did have to go to boot camp when he was about

15 or 16 years old but did not remember exactly what for (RR 3 205). On January 7, 2015, the

jury found the Enhancement paragraph was true on Defendant Emanuel Escobedo (RR 3 267).

On January 7, 2015, the Defendant was sentenced to 50 years in Texas Department of Criminal

Justice Institutional Division with a $10,000.00 fine. (RR 3 267).

SUMMARY OF THE ARGUMENT

ISSUE NO. ONE.

4Trial counsel representation of the Defendant was so deficient that counsel was not

functioning as acceptable counsel under the sixth amendment.

ISSUE NO. TWO.

Trial counsel was ineffective to the point that there is a reasonable probability that if it

would not have been for the unprofessional error of counsel that the proceedings would have

been different.

ARGUMENT AND AUTHORITIES

ISSUE NO. 1

ISSUE NO. ONE.

Trial counsel representation of the Defendant was so deficient that counsel was not

functioning as acceptable counsel under the sixth amendment.

The requirements to show ineffective assistance of counsel are established in Rivera v.

State

, 123 S.W.3d 21, 28 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref'd) as follows:

To show ineffective assistance of counsel, an appellant must demonstrate that (1)

counsel's representation fell below an objective standard of reasonableness based

on prevailing professional norms, and (2) but for counsel's errors, there is a

reasonable probability the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687

– 88, 694, 104 S.Ct. 2052, 2064

– 65,

2068, 80 L.Ed.2d 674 (1984). This standard of proof of ineffective assistance

applies to the punishment phase as well as to the trial stage of criminal

proceedings. Wiggins v. Smith, 539U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d

471 (2003); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). A

“reasonable probability” is defined as “a probability sufficient to undermine

confidence in the outcome.” Wiggins, 123 S.Ct. at 2542; Strickland, 466 U.S. at

694, 104 S.Ct. at 2068; Thompson v. State, 9 S.W.3d 808, 812

(Tex.Crim.App.1999); Jackson v. State, 973 S.W.2d 954, 956

(Tex.Crim.App.1998). It is an appellant's burden to prove a claim of ineffective

assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at

813; Jackson, 973 S.W.2d at 956; McFarland v. State, 845 S.W.2d 824, 843

5(Tex.Crim.App.1992). The appellant must satisfy both prongs of the Strickland

test, or the claim of ineffective assistance will fail. Wiggins, 123 S.Ct. at 2535;

Strickland, 466 U.S. at 700, 104 S.Ct. at 2071; Garcia v. State, 57 S.W.3d 436,

440 (Tex.Crim.App.2001).

Rivera v. State

, 123 S.W.3d 21, 28 (Tex. App.

— Houston [1st Dist.] 2003, pet.

ref'd)

The first element that must addressed in ineffective assistance of counsel is to show that

the counsel’s representation fell below an objective standard of reasonableness based on

prevailing professional norms Strickland v. Washington, 466 U.S. 668, 687

– 88, 694, 104 S.Ct.

2052, 2064

– 65, 2068, 80 L.Ed.2d 674 (1984). The requirements of counsel that is retained by

the client is even more stringent. As established in Clark v. United States

, 606 F.2d 550, 551

(5th Cir. 1979):

“When a defendant retains his own counsel, as opposed to having counsel

appointed for him, the test is more stringent. In such cases, there will be a finding

of inadequate counsel only if there is a showing:

(1) that retained counsel performed so poorly as to render the

proceedings fundamentally unfair or (2) that retained counsel's

conduct fell short of reasonably effective assistance and some

responsible government official connected with the criminal

proceeding who could have remedied the conduct failed in his duty

to accord justice to the accused. United States v. Childs

, 5 Cir.,

1978, 571 F.2d 315, 316. See Fitzgerald v. Estelle

, 5 Cir., 1975, En

banc, 505 F.2d 1334, 1337.”

Clark v. United States

, 606 F.2d 550, 551 (5th Cir. 1979)

A close review of the clerk’s record and reporter’s record for the trial in this instance case

shows a number of critical errors. On June 25, 2014 Appellant was charged by indictment with

Delivery of a Controlled Substance PG 1 => 4g < 200g/ Enhanced in Cause No. 67,998-D in the

320th Judicial District Court of Potter County, Texas (CR 1 13). Counsel for the Appellant did

not file an objection to the Indictment until January 6, 2015, the first day of trial (CR 1 19-20).

Counsel for the Defendant did not file a Motion to Prevent the State from Reading of Alluding to

6Non-jurisdictional Enhancement Count at or before Guilt/ Innocent Phase until the first day of

trial (CR 1 22-23). Due to counsels untimely filing of both the aforementioned motions, the

Court denied both motions (RR 2 7). The counsel for the Appellant did not file any timely pretrial discovery motions. Specifically, the counsel for the Defendant failed to file Motion to

Discover Exculpatory Evidence which could have aided the Defendant in arguing against the

enhancement.

At the guilt innocence phase counsel failed to timely object to the State’s exhibit that

allowed evidence from another drug sale to be introduced in front of the jury. When the trial

inquired of counsel if he had ever examined the exhibit after a belated attempt to object counsel

remarked that he could not remember everything. Defendant put on no evidence at guilt

innocence phase.

At punishment a juvenile burglary of a habitation was used to enhance the punishment.

To be used for this, the juvenile case must be a felony (if an adult) and disposition must be

commitment to the Texas Juvenile Justice Department.

The exhibit introduced was an adjudication for a (1) burglary of habitation, (2)

intentionally or knowingly damaging or destroying tangible property, namely tires, in an amount

of at least $50 but less than $500; (3) intentionally or knowingly damaging or destroying tangible

property, namely a window, in an amount of at least $50 but less than $500. Counsel should

have objected to the admission of the two non-felony adjudications. This provided the jury with

knowledge of two offenses at punishment that were not enhanceable offenses and not admissible

as such.

The second part of the juvenile information; disposition commitment to Texas Youth

Commission alleged three new offenses as violation of juvenile probation. Again these were not

7alleged as enhancements. There is no evidence of adjudication or commitment to Texas Youth

Commission for these offenses. Counsel failed to object to these offenses being introduced or

request redaction. Trial Exhibit 19 shows these involved, 1) exhibiting a deadly weapon,

namely a handgun, causing bodily injury to Matthew Peck by shooting him with a gun. 2)

Knowingly discharging a firearm at and in the direction of a building, and was reckless as to

whether the building was occupied, to wit: the child had attempted to enter the building and

could not see that the building was occupied. 3) Knowingly discharging a firearm at and in the

direction of individuals, namely, Christopher Polite, Evan Birch and Matthew White. Evidence

of these offenses at the juvenile revocation modification was by a preponderance. There was

never a finding beyond a reasonable doubt. Therefore, there was no adjudication and no

commitment to the Texas Youth Center. The copy of the disposition with these offenses as

revocation charges should not have been admitted into evidence at punishment. Counsel did not

object. These juvenile charges introduced before the jury were highly prejudicial. The state

emphasized these juvenile offenses in closing argument.

Exhibit 19 is the disposition of the burglary adjudication to Texas Youth Commission.

The order on its 3 rd and 4 th pages mentions the three counts dealing with the weapons charges as

violations of probation. On page four of Exhibit 19, the court finds by a preponderance of

evidence the child violated a court order. (This is the standard for modification of disposition.)

Appellant was never adjudicated for the three shooting offenses so they are inadmissible under

Tex. Crim. Proc. Code Ann. § 37.07 Sec. 3 (a) 1. Counsel was ineffective for allowing this

prejudicial information into evidence and failing to object in its closing argument. (RR 3 252

253 263). Evidence of a juvenile record and juvenile adjudication is not admissible under Tex.

R. Evid. 609(d).

8Tex. Crim. Proc. Code Ann. § 37.07 Sec. 3 (a) 1 provides...”Notwithstanding

Tex. R. Evid. 609(d) and subject to subsection (h) evidence may be offered by the state

and defendant of an adjudication of delinquency based on a violation by the Defendant of

a penal law of the grade of (a) a felony or (b) misdemeanor punishable by confinement in

jail...” Exhibit 19 disposition does not meet this standard.

ISSUE NO. TWO

Trial counsel was ineffective to the point that there is a reasonable probability that

if it would not have been for the unprofessional error of counsel that the proceedings

would have been different. Rivera v. State

, 123 S.W.3d 21, 28 (Tex. App.

— Houston [1st

Dist.] 2003, pet. ref'd) states as follows:

To show ineffective assistance of counsel, an appellant must demonstrate that (1)

counsel's representation fell below an objective standard of reasonableness based

on prevailing professional norms, and (2) but for counsel's errors, there is a

reasonable probability the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687

– 88, 694, 104 S.Ct. 2052, 2064

– 65,

2068, 80 L.Ed.2d 674 (1984). This standard of proof of ineffective assistance

applies to the punishment phase as well as to the trial stage of criminal

proceedings. Wiggins v. Smith, 539U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d

471 (2003); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). A

“reasonable probability” is defined as “a probability sufficient to undermine

confidence in the outcome.” Wiggins, 123 S.Ct. at 2542; Strickland, 466 U.S. at

694, 104 S.Ct. at 2068; Thompson v. State, 9 S.W.3d 808, 812

(Tex.Crim.App.1999); Jackson v. State, 973 S.W.2d 954, 956

(Tex.Crim.App.1998). It is an appellant's burden to prove a claim of ineffective

assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at

813; Jackson, 973 S.W.2d at 956; McFarland v. State, 845 S.W.2d 824, 843

(Tex.Crim.App.1992). The appellant must satisfy both prongs of the Strickland

test, or the claim of ineffective assistance will fail. Wiggins, 123 S.Ct. at 2535;

Strickland, 466 U.S. at 700, 104 S.Ct. at 2071; Garcia v. State, 57 S.W.3d 436,

440 (Tex.Crim.App.2001).

Rivera v. State

, 123 S.W.3d 21, 28 (Tex. App.

— Houston [1st Dist.] 2003, pet.

ref'd)

9The second element of Rivera is demonstrated by state counsels closing arguments that

rely on the three shooting allegations in Exhibit 19, as an argument for increased punishment. If

counsel objected and this information was not before the jury there is a reasonable probability

that the sentence would have been less.

PRAYER.

WHEREFORE, PREMISES CONSIDERED, Appellant prays that the judgment and

sentence of the trial Court be reversed and that this Cause be dismissed. In the alternative, the

Judgment and Sentence should be reversed and the case remanded for a new trial.

Respectfully submitted,

Of Counsel: LAW OFFICE OF DARRELL R. CAREY

300 15 th Street

Canyon, Texas 79015

(806) 655-4529

/s/ Darrell R. Carey (806) 655-7250 (fax)

DARRELL R. CAREY email: darrell.careyfirm@suddenlinkmail.com

State Bar Number 03791700 ATTORNEY FOR DEFENDANT

CERTIFICATE OF COMPLIANCE

The undersigned, attorney for appellant, hereby certifies that this Appellant brief is 3,363

words which is in compliance with the Texas Rules of Appellate Procedure Rule 9.4.

/s/ Darrell R. Carey

Darrell R. Carey

CERTIFICATE OF SERVICE

10The undersigned, attorney for Appellant, hereby certifies that a true and correct copy of

the foregoing APPELLANT’S BRIEF was on the 17th day of September, 2014, served as

follows:

____ (a) by delivery in person;

____ (b) by agent or courier receipted delivery;

(c) by certified mail, return receipt requested;

X (d) by facsimile.

Randall County District Attorney

2309 Russell Long Blvd, Suite 120

Canyon, TX 79015

Phone: (806) 468-5570

Fax: (806) 468-5566 /s/ Darrell R. Carey

Darrell R. Carey

11