Damion Navarro v. State

ACCEPTED
FILED 13-14-00610-CR
THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS
CORPUS CHRISTI 1/22/2015 7:46:26 PM
DORIAN RAMIREZ
1/22/15 CLERK
DORIAN E. RAMIREZ, CLERK
BY DTello No. 13-14-00610-CR
RECEIVED IN
IN THE 13TH COURT OF APPEALS OF TEXAS
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
THE STATE OF TEXAS,
1/22/2015 7:46:26 PM
APPELLEE
DORIAN E. RAMIREZ
Clerk
v.

Damion Navarro
APPELLANT

ON APPEAL FROM THE 2nd 25th DISTRICT COURT, 129-13-A,
GONZALES COUNTY, TEXAS

DEFENDANT/APPELLANT’S ORIGINAL BRIEF
(DEFENDANT’S APPEAL)

Chris Iles
Attorney at Law
Park Tower
710 Buffalo Street, #802
Corpus Christi, Tx. 78401
361.883.2020
Fax: 866.565.5343
SBOT# 00789391
Appointed Counsel for Defendant/Appellant

ORAL ARGUMENT IS REQUESTED

1
 IDENTITY OF PARTIES AND ATTORNEYS
State’s Trial and Appellate Attorney:
MR. KERI LEA ANN MILLER
Assistant District Attorney
SBOT#: 24051960
415 Saint Louis Street
Gonzales, Texas 78629
Phone No.: 830.672.6527
Attorney for the State
Appellant:

Damion Navarro, TDC# 01952710
Hodge Unit
379 FM 2972 West
Rusk, TX 75785-3666

Appellant’s Trial Attorney:

Mr. Travis M. Hill
ATTORNEY AT LAW
SBOT NO. 24043293
P.O. Box 358
Moulton, Texas 77975
Phone: 361.596.8888

Appellant’s Appellate Attorney:
Chris Iles
Attorney at Law
Park Tower
710 Buffalo Street, #802
Corpus Christi, Tx. 78401
361.883.2020
Fax: 866.565.5343
SBOT# 00789391

2
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND ATTORNEYS . . . . . . . . . . . . . . . . . . . . 2

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE …. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..6

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ISSUES PRESENTED……………………………………………………....7

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ISSUE #1 The court erred in denying defense counsel the right to
impeach the witness via prior inconsistent statement.
ISSUE #2 The court erred in preventing defendant from fully cross
examining Mr. Flach regarding credibility involving truthfulness related to a
prior inconsistent statement.
ISSUE #3 Defense counsel was ineffective in failing to assert the
6th Amendment right of confrontation in response to the state's objection, or
for making an offer of proof.

CONCLUSION AND PRAYER .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

RULE 9.4 (I) CERTIFICATION 26

3
 INDEX OF AUTHORITIES

CASES

Martinez v. State, 327 S.W.3d 727, 9
Taylor v. State, 268 S.W.3d 571, 9
Montgomery v. State, 810 S.W.2d 372, 9
Moses v. State, 105 S.W.3d 622 9
De La Paz v. State, 279 S.W.3d 336 10
Ellingsworth v. State, 487 S.W.2d 108, 10
Osteen v. State, 61 S.W.3d 90 10,11,12
McGary v. State, 750 S.W.2d 782, 11
Abdygapparova v. State, 243 S.W.3d 191, 11
Parson v. State, 193 S.W.3d 116, 11
Ruth v. State, 167 S.W.3d 560 11
Moore v. State, 652 S.W.2d 411, 12
Aranda v. State, 736 S.W.2d 702, 12
Joseph v. State, 960 S.W.2d 363, 12
Delaware v. Van Arsdall, 475 U.S. 673, 13
Davis v. Alaska, 415 U.S. 308, 13
Carroll v. State, 916 S.W.2d 494, 13
Delaware v. Van Arsdall, 475 U.S. 673, 13
Virts v. State, 739 S.W.2d 25, 13
Koehler v. State, 679 S.W.2d 6 13
Chambers v. State, 866 S.W.2d 9, 13
Shelby v. State, 819 S.W.2d 544 17
Salinas v. State, 980 S.W.2d 219, 19
Arizona v. Fulminante, 499 U.S. 279, 19
Bentley v. Scully, 41 F.3d 818, 19
Cain v. State, 947 S.W.2d 262 19
Gideon v. Wainwright, 372 U.S. 335, 20
Tumey v. Ohio, 273 U.S. 510, 20
Vasquez v. Hillery, 474 U.S. 254, 20
McKaskle v. Wiggins, 465 U.S. 168, 20
Waller v. Georgia, 467 U.S. 39, 20
Sullivan v. Louisiana, 508 U.S. 275, 20

4
Strickland v. Washington, 466 U.S. 668 21
Jackson v. State, 973 S.W.2d 954 22
Thompson v. State, 9 S.W.3d 808, 22
Gamble v. State, 916 S.W.2d 92, 22
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). 22
Robinson v. State, 16 S.W.3d 808, 23
Castoreno v. State, 932 S.W.2d 597, 23
McFarland v. State, 928 S.W.2d 482, 23
Ex Parte Davis, 866 SW2d 234, 23
Ex Parte Felton, 815 SW2d 733, 23
Weathersby v. State, 627 SW2d 729 23
Aldrich v. State, 296 S.W.3d 225 24
Ex parte Welch, 981 S.W.2d 183 24

MISCELLANEOUS

TRE 613(a) passim
TEX. R. APP. P. 33.2; 13
TEX. R. EVID. 103 (a)(2); 13
Rule of Appellate Procedure 44.2

5
 STATEMENT OF THE CASE

Defendant was indicted on September 12, 2013 for burglary of a

habitation. (Indictment) On September 15, 2014, trial commenced. RR 4.

The jury returned a verdict of guilty as charged, and also returned an

affirmative deadly weapon finding. CR 66-67. On September 17, 2014, the

court imposed 50 years of imprisonment. Judgment, ID 68. Defendant

timely filed his notice of appeal and the instant appeal ensued. ID 74.

STATEMENT OF FACTS

The state first called John Christopher Flach, the alleged Victim in

this case who described how he was allegedly robbed in his house at

gunpoint by Mr. Navarro. RR 5 at 56. The state next called Dennis Jahns,

Gonzales County Sheriff's office investigator, who testified as to his

investigation. ID. 56-64 The state next called Matthew Atkinson, Gonzales

County sheriffs office lieutenant of the criminal investigations division, who

testified as to his investigation. ID, 64-98. The state next called Ashley

Russell, emergency medical technician with the Gonzales EMS Service, who

testified regarding the call she was dispatched to, and the injuries which the

victim sustained. ID 99-106. The State next called Bryan Strong, DPS

fingerprint expert, who testified that there were no fingerprints on the bullet

cartridge he examined. ID 106-114. The state next called Raleigh Wood,

6
PhD, who testified as to defendant's competence and mental state. ID 114-

136. The state next called Olan Malaer, fingerprint expert, who testified

that defendant's fingerprint matched a judgment in which he was convicted

of evading and resisting arrest.ID 136-141.

SUMMARY OF THE ARGUMENT

The court erred in denying defense counsel the right to impeach the

witness via prior inconsistent statement. The court erred in preventing

defendant from fully cross examining Mr. Flach regarding credibility

involving truthfulness related to a prior inconsistent statement. This violated

defendant’s right under the confrontation clause of the Sixth Amendment to

the U.S. Constitution which guarantees a criminal defendant the opportunity

for effective cross-examination. Defense counsel was ineffective in failing to

assert the 6th Amendment right of confrontation in response to the state's

objection, or for making an offer of proof.

ISSUES PRESENTED

The court erred in denying defense counsel the right to impeach the

witness via prior inconsistent statement. The court erred in preventing

defendant from fully cross examining Mr. Flach regarding credibility

involving truthfulness related to a prior inconsistent statement. This violated

defendant’s right under the confrontation clause of the Sixth Amendment to

7
the U.S. Constitution which guarantees a criminal defendant the opportunity

for effective cross-examination. Defense counsel was ineffective in failing to

assert the 6th Amendment right of confrontation in response to the state's

objection, or for making an offer of proof.

ARGUMENT AND AUTHORITIES

On cross examination, the following exchange occurred: RR5 at 55-

56.

Q. All right, now, you also said that you had gotten the

ski mask during this altercation that was going on and

taken

the ski mask off of Mr. Navarro allegedly. What

happened to

the ski mask?

A. I believe he -- what -- what do you mean?

Q. Do you know what happened to the ski mask?

A. He had it in his hands. He tried to put it back on

when I took it off.

Q. After you had already identified who he was, he was

going to put the ski mask back on.

A. He tried for a split second, then he kept it off.

8
Q. Okay.

A. But yeah, he -- it was coming off. He was -- it was

cockeyed, so he was trying to put it back on, and he had,

you

know, the pistol right here. But he was like more --

started

worrying more about the pistol than the mask.

Q. If you took the mask off of him, how did he get the

mask back?

A. I didn't take it off of him. I pulled it -- I pulled

it off of him. I didn't take it off --

Q. Okay, so --

A. -- because I was behind him, and it came off. You

can still have a mask on your head, but not over your

face.

Q. So in the police report, the officer has stated in

here that --

MS. MILLER: Your Honor, I object. It's

improper impeachment, and it's hearsay to state what the

officer stated in his police report

9
 THE COURT: Sustain the objection.

Q. (BY MR. HILL) Would you be surprised if the officer

stated it in his report that you told him --

MS. MILLER: Objection, hearsay, your Honor.

THE COURT: Sustain the objection.

MR. HILL: Pass the witness.

ISSUE #1: The court erred in denying defense counsel the right to impeach

the witness via prior inconsistent statement.

STANDARD OF REVIEW: The Appellate Court reviews a trial court's

decision to admit or exclude evidence for an abuse of discretion. Martinez v.

State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of discretion

occurs only if the decision is "so clearly wrong as to lie outside the zone

within which reasonable people might disagree." Taylor v. State, 268

S.W.3d 571, 579 (Tex. Crim. App. 2008); Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1990) (op. on reh'g). The Appellate Court may

not substitute its own decision for that of the trial court. Moses v. State, 105

S.W.3d 622, 627 (Tex. Crim. App. 2003). The Appellate Court will uphold

an evidentiary ruling if it was correct on any theory of law applicable to the

case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

10
 TRE 613(a) reads as follows:

Rule 613. PRIOR STATEMENTS OF WITNESSES:
IMPEACHMENT AND SUPPORT

(a) Examining Witness Concerning Prior Inconsistent
Statement. In examining a witness concerning a prior
inconsistent statement made by the witness, whether oral or
written, and before further cross-examination concerning, or
extrinsic evidence of, such statement may be allowed, the
witness must be told the contents of such statement and the time
and place and person to whom the statement was made, and
must be afforded an opportunity to explain or deny such
statement. If written, the writing need not be disclosed to the
witness at that time, but on request the same shall be shown to
opposing counsel. If the witness unequivocally admits having
made such statement, extrinsic evidence of same shall not be
admitted. This provision does not apply to admissions of a
party-opponent as defined in Rule 801(e)(2).

Rule 613(a) of the Texas Rules of Evidence imposes three

requirements to establish the proper predicate or foundation for

impeachment testimony: (1) identification ("the time and place and the

person to whom [the statement] was made"), (2) "the contents of such

statement," and (3) the witness "must be afforded an opportunity to explain

or deny such statement." TEX. R. EVID. 613(a); see Ellingsworth v. State,

487 S.W.2d 108, 112 (Tex. Crim. App. 1972); Osteen v. State, 61 S.W.3d

90, 91 (Tex. App.—Waco 2001, no pet.). The plain language of Rule 613(a)

does not require the witness to deny the statement, it only provides that

extraneous evidence may not be admitted if "the witness unequivocally

11
admits having made such statement." TEX. R. EVID. 613(a). The Texas

Court of Criminal Appeals has observed that "[w]here the admission is only

qualified or partial and not unequivocal[,] the statement may be used to

impeach him." McGary v. State, 750 S.W.2d 782, 786 n.3 (Tex. Crim. App.

1988); see Abdygapparova v. State, 243 S.W.3d 191, 204 (Tex. App.—San

Antonio 2007, pet. ref'd); Parson v. State, 193 S.W.3d 116, 121 (Tex.

App.—Texarkana 2006, pet. ref'd); Ruth v. State, 167 S.W.3d 560, 566

(Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).

Rule 613(a) provides, "[T]he witness must be told . . . the person to

whom [the statement] was made . . . ." TEX. R. EVID. 613(a) (emphasis

added). If the impeaching party fails to lay a proper predicate or foundation,

the prior inconsistent statement should not be admitted. Moore v. State, 652

S.W.2d 411, 413 (Tex. Crim. App. 1983); Osteen v. State, 61 S.W.3d 90, 91

(Tex. App.—Waco 2001, no pet.) (proper predicate not laid when

impeaching party failed to inform witness of contents of statement). The

Texas Court of Criminal Appeals has stated, "The rule of admissibility of

evidence of prior inconsistent statements should be liberally construed[,] and

the trial judge should have discretion to receive any evidence which gives

promise of exposing a falsehood." Aranda v. State, 736 S.W.2d 702, 707

12
(Tex. Crim. App. 1987); Joseph v. State, 960 S.W.2d 363, 366 (Tex. App.—

Houston [1st Dist.] 1998, pet. ref'd).

Defendant argues that the court erred in denying defendant the right to

impeach the witness through his prior inconsistent statement. Per above

excerpt, the record clearly reflects that defendant was trying to impeach the

witness via prior inconsistent statement. The record does not reflect that

there was anything improper in the impeachment sequence that defendant

was engaging in. Although the record is not fully developed, the record does

reflect that defendant was attempting to elicit a prior inconsistent statement

the witness had made regarding the ski mask. The ski mask is a crucial

element in the defendant's case, because this bore on identity which was a

critical factor. Had defense counsel been able to fully develop this line of

questioning, this would have made a difference in the outcome of the case,

because not only would the witness's prior inconsistent statement be

exposed, but his credibility would have been damaged severely. Therefore,

the court erred in shutting the defense down.

ISSUE #2: The court erred in preventing defendant from fully cross

examining Mr. Flach regarding credibility involving truthfulness related to a

prior inconsistent statement. This violated defendant’s right under the

13
confrontation clause of the Sixth Amendment to the U.S. Constitution which

guarantees a criminal defendant the opportunity for effective cross-

examination.

STANDARD OF REVIEW: A trial court violates a defendant's right to

confrontation when the court prohibits the defendant from "engaging in

otherwise appropriate cross-examination designed to show a prototypical

form of bias on the part of the witness" thereby exposing facts "'from which

jurors . . . could appropriately draw inferences relating to the reliability of

the witness.'" Delaware v. Van Arsdall, 475 U.S. 673, 678, 89 L. Ed. 2d 674,

106 S. Ct. 1431 (1986). (quoting Davis v. Alaska, 415 U.S. 308, 318, 39 L.

Ed. 2d 347, 94 S. Ct. 1105 (1974)). Error is shown when a reasonable jury

might have received a significantly different impression of the witness's

credibility if the defendant's counsel had been permitted to pursue the

prohibited, but otherwise appropriate, line of questioning. Id.

Generally, "a defendant is entitled to pursue all avenues of cross-

examination reasonably calculated to expose a motive, bias, or interest for

the witness to testify." Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim.

App. 1996). The confrontation clause of the Sixth Amendment to the U.S.

Constitution guarantees a criminal defendant the opportunity for effective

cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678, 89 L. Ed.

14
2d 674, 106 S. Ct. 1431 (1986). The right to cross-examination is not

unlimited and a trial court has wide discretion to limit the scope of cross-

examination to "prevent harassment, prejudice, confusion of the issues, harm

to the witness, and repetitive or marginally relevant interrogation." Id. at

679. However, a trial court violates a defendant's right to confrontation when

the court prohibits the defendant from "engaging in otherwise appropriate

cross-examination designed to show a prototypical form of bias on the part

of the witness" thereby exposing facts "'from which jurors . . . could

appropriately draw inferences relating to the reliability of the witness.'" Id. at

680 (quoting Davis v. Alaska, 415 U.S. 308, 318, 39 L. Ed. 2d 347, 94 S. Ct.

1105 (1974)). Error is shown when a reasonable jury might have received a

significantly different impression of the witness's credibility if the

defendant's counsel had been permitted to pursue the prohibited, but

otherwise appropriate, line of questioning. Id.

There is a distinction, for appellate review purposes, between a

situation in which a defense counsel attempts to elicit certain specific

responses from a witness, but is precluded from doing so by the trial judge,

and a situation in which a defense counsel is not permitted to question a

witness about a certain general subject that might affect the witness's

credibility. Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987)(en

15
banc). The respective requirements for preserving error in each situation are

distinct. Id. In the former situation, in order to preserve error, defense

counsel must make a bill of exception wherein the witness answers the

specific questions on the record, or alternatively, counsel may make an offer

of proof that includes the questions that would have been asked and the

answers that were expected to be received. TEX. R. APP. P. 33.2; TEX. R.

EVID. 103 (a)(2); Virts, 739 S.W.2d at 29; Koehler v. State, 679 S.W.2d 6,

9 (Tex. Crim. App. 1984)(en banc). However, when the complaint is that the

trial judge denied a defendant the opportunity to question a witness generally

about a matter that might affect the witness's credibility, it is not necessary

to show what the cross-examination would have established in order to

preserve the complaint; it is enough to establish the general subject matter

on which the witness would have been questioned and, if challenged,

demonstrate why it should have been admitted into evidence. Virts, 739

S.W.2d at 29; Koehler, 679 S.W.2d at 9.

The "parameters of cross-examination for the showing of bias [rest]

on the sound discretion of the trial judge" who "must balance probative

value against prejudicial risks, i.e. undue prejudice, embarrassment,

harassment, confusion of the issues, and undue delay." Chambers v. State,

16
866 S.W.2d 9, 27 (Tex. Crim. App. 1993)(en banc). Accordingly, the trial

court's determination is not reversible absent a clear abuse of discretion. Id.

If the appellate court does determine that a trial court improperly

limited the scope of a defendant's cross-examination of a witness, and that

the error was preserved, this court must then conduct a harm analysis under

the three-prong analysis set out in Van Arsdall. Van Arsdall, 475 U.S. at

684.

Defendant submits that the court “improperly limited the scope of a

defendant's cross-examination of a witness,” and that the error was

preserved.

Defendant has a right to question the witness’ credibility, which he

was doing when he started questioning the witness about a prior inconsistent

statement regarding the ski mask, which bore on identity, a crucial element,

as well as the witness's general credibility. Furthermore, the witness was the

alleged victim, the most important witness in the case.

Making one statement to an investigator and then changing the

statement at trial certainly raises questions of credibility. The court, in

shutting defense counsel down, violated defendant’s right to full

confrontation of the key, primary adverse eyewitness. In stifling defendant’s

17
questioning of this witness, the court “improperly limited the scope of a

defendant’s cross examination of a witness.”

Under the Van Arsdall analysis, this court:

[first] assumes that the damaging potential of the cross-examination [was]

fully realized. Second, with that assumption in mind, [we] review the error

in connection with the following factors:

(1) The importance of the witness'[s] testimony in the prosecution's case;

(2) Whether the testimony was cumulative;

(3) The presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points;

(4) The extent of cross-examination otherwise permitted; and,

(5) The overall strength of the prosecution's case.

Finally, in light of the first two prongs, [we] determine if the error was

harmless. Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991)(en

banc) (citations omitted).

(1) Regarding “the importance of the witness'[s] testimony in the

prosecution's case,” Mr. Flach was extremely important because he was the

only eyewitness to the crime.

(2) Regarding “whether the testimony was cumulative,” Mr. Flach's

substantive testimony regarding the details of the alleged crime was not

18
cumulative, since he was a uniquely situated to provide facts that no one else

could provide.

(3) Regarding “the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points,” there was a

genuine fact question of the identity of the perpetrator.

(4) Regarding “the extent of cross-examination otherwise permitted” Mr.

Flach's credibility was extremely important because he was the only direct

witnesses available who was asserting or implying that the defendant was

the perpetrator.

(5) Regarding “the overall strength of the prosecution's case, the DA on the

one hand called many witnesses and proffered numerous exhibits. On the

other hand there was a genuine question of the identity of the perpetrator.

Because of the complexity of the testimony and the volume of evidence

presented, Mr. Flach's testimony was even more critical. Hence, the

defendant’s right to fully cross examine him was all the more accentuated as

crucial.

Based on the foregoing, the court violated defendant’s 6th Amendment

right to fully confront Mr. Flach in not permitting him to pursue this line of

questioning.

STRUCTURAL ERROR ARGUMENT

19
 Under Texas Rule of Appellate Procedure 44.2, only certain federal

constitutional errors labeled by the United States Supreme Court as

"structural" are categorically immune to reversible error analysis. Salinas v.

State, 980 S.W.2d 219, 219 (Tex.Crim.App.1998). Structural error exists

when a defect at trial affects the framework within which the trial proceeds,

as opposed to error within the trial process itself. Arizona v. Fulminante, 499

U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302. "A structural error requires

automatic reversal and is not subject to harmless error analysis because it

involves a deprivation of a constitutional protection so basic that in its

absence, 'a criminal trial cannot reliably serve its function as a vehicle for

determination of guilt or innocence, and no criminal punishment may be

regarded as fundamentally fair.' " Bentley v. Scully, 41 F.3d 818, 823 n. 1

(2nd Cir.1994) (citing Arizona v. Fulminante, 499 U.S. at 310, 111 S.Ct.

1246). The Supreme Court "has applied harmless-error analysis to a wide

range of errors and has recognized that most constitutional errors can be

harmless. Fulminante, 499 U.S. at 306, 111 S.Ct. 1246. Involuntary

confessions have not been held to be structural error. Fulminante at 1265,

111 S.Ct. 1246.

Since the Court's decision in Cain v. State, 947 S.W.2d 262, 264

(Tex.Cr.App.1997), except for certain federal constitutional errors labeled

20
by the United States Supreme Court as "structural," no error, whether it

relates to jurisdiction, voluntariness of a plea, or any other mandatory

requirement, is categorically immune to a harmless error analysis. See

Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 1265, 113 L.Ed.2d

302 (1991). Structural error, which is subject to automatic reversal, has been

found only in six instances. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799 (1963) (total deprivation of the right to counsel); Tumey

v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (an impartial

judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598

(1986) (unlawful exclusion of members of the defendant's race from a grand

jury); McKaskle v. Wiggins, 465 U.S. 168, 177-78, n. 8, 104 S.Ct. 944, 950-

51, n. 8, 79 L.Ed.2d 122 (1984) (the right to self-representation); Waller v.

Georgia, 467 U.S. 39, 49, n. 9, 104 S.Ct. 2210, 2217, n. 9, 81 L.Ed.2d 31

(1984) (the right to public trial), and Sullivan v. Louisiana, 508 U.S. 275,

113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable doubt

instruction).

Although courts have not clearly deemed violations of the 6th

Amendment right of confrontation or due process to be structural error,

defendant argues that 6th Amendment right of confrontation was violated

21
when the court denied defendant the right to impeach the witness through

prior inconsistent statement and that this constitutes structural error.

ISSUE #3: INEFFECTIVE ASSISTANCE OF COUNSEL

Defense counsel was ineffective in failing to assert the 6th

Amendment right of confrontation in response to the state's objection, or for

making an offer of proof.

Alternatively, defendant argues that the error of the court denying

defendant the right to impeach the witness through prior inconsistent

statement contributed to an increase in appellant's conviction beyond a

reasonable doubt and that trial counsel was ineffective in failing to assert

defendant's 6th Amendment right of confrontation in response to the state's

objection, or for making an offer of proof.

STANDARD OF REVIEW

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. This standard of proof of ineffective assistance applies to

22
the punishment phase as well as to the trial stage of criminal proceedings.

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

ARGUMENT

Appellant has the burden of proving his claim by a preponderance of

the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App.

1998). The court applies a strong presumption that defense counsel was

competent. Thompson v. State, 9 S.W.3d 808, at 813. (Tex. Crim. App,

1999) It is presumed that defense counsel's strategy was sound and that the

representation was reasonable. Gamble v. State, 916 S.W.2d 92, 93 (Tex.

App.--Houston [1st Dist.] 1996, no pet.). In assessing whether a defendant

has overcome these presumptions, the court is limited to the facts of the

case. Thompson, 9 S.W.3d at 813.

An appellant "making a claim of ineffective assistance must identify

the acts or omissions of counsel that are alleged not to have been the result

of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S. Ct.

at 2052. Any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Thompson, 9 S.W.3d at 813. The court cannot speculate

beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex.

Crim. App. 1994).

23
 The Court of Criminal Appeals of Texas has held, however, that a

motion for new trial claiming ineffective assistance of counsel is not always

required to preserve that claim. See Robinson v. State, 16 S.W.3d 808, 809-

10 (Tex. Crim. App. 2000). A timely filed appeal is a proper procedure for

seeking relief regarding ineffective assistance of counsel. See id. A hearing

on a motion for new trial is required only when the motion raises matters

extrinsic to the record. See Castoreno v. State, 932 S.W.2d 597, 605 (Tex.

App.--San Antonio 1996, pet. ref'd). When an appellant's allegations of

ineffective assistance of counsel are firmly founded and affirmatively

demonstrated in the record, no evidentiary hearing is required. See

McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996);

Castoreno, 932 S.W.2d at 605.

Failure to object may be held ineffective on appeal or a writ

application. Ex Parte Davis, 866 SW2d 234, (Tex. Crim. App. 1993) A

single material omission can constitute ineffective assistance. See, eg, Ex

Parte Felton, 815 SW2d 733, (Tex. Crim. App. 1991) Failure to preserve

appellate complaints can be the basis for a claim of ineffective assistance of

counsel. Weathersby v. State, 627 SW2d 729, (Tex. Crim. App. 1982).

(Failure to object to improper opinion testimony)

24
 Trial counsel is charged with knowledge of the applicable law. When

trial counsel mistakenly misinforms a defendant that he is eligible for

probation when he is in fact not eligible for probation, counsel's

representation falls below an objective standard of reasonableness, satisfying

the first prong of Strickland. See Aldrich v. State, 296 S.W.3d 225, 242

(Tex. App. -- Fort Worth 2009, pet. ref'd). See Ex parte Welch, 981 S.W.2d

183, 195 (Tex. Crim. App. 1998).

In the instant case, defendant argues that defense counsel was

ineffective in failing to assert defendant's 6th Amendment right of

confrontation in response to the state's objection, or for making an offer of

proof. Defense counsel should have recognized that defendant's 6th

Amendment right of confrontation and due process rights were being

violated when the state started objecting to his proper impeachment attempt.

The need to object is furthermore accentuated in light of the fact that

defendant made an affirmative election not to testify in the guilt/innocence

phase. The state basically scored an advantage in shutting defendant down.

Defendant's constitutional rights were violated. Defendant did not have a fair

trial. An injustice was committed. A new trial is required.

CONCLUSION AND PRAYER

25
 For the foregoing reasons, defendant respectfully requests that the

Court of Appeals vacate, overrule, or reverse the verdict of guilty and order

a new trial.

Respectfully Submitted,

___________________
Chris Iles
Attorney at Law
Park Tower
710 Buffalo Street, #802
Corpus Christi, Tx. 78401
361.883.2020
Fax: 866.565.5343
SBOT# 00789391
Appointed Counsel for Defendant/Appellant
CERTIFICATE OF SERVICE

This is to certify that a copy of this brief was emailed and faxed to the
District Attorney fax# 8306726527 on 1-22-15 and sent via regular mail to
defendant Damion Navarro, TDC# 01952710, Hodge Unit, 379 FM 2972
West, Rusk, TX 75785-3666.

___________________
Chris Iles

RULE 9.4 (I) CERTIFICATION

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify
that the number of words in this brief, excluding those matters listed in Rule
94.(i)(1), is 4,696.

___________________
26
 Chris Iles

27