Piland, James Earl v. State

Cause No. 076-tS
IN THE

COURT OF C&IMDM&L APPEALS ORIGINAL
OF TEXAS

lm~W~WWW
JAMES EARL PILAND
§
Petitioner
§ IN THE 4th
vs.
§ JUDICIAL DISTRICT COURT

THE STATE OF TEKAS OF RUSK COUMY, TEXAS
Respondent

ECEIVED IN
OF CRIMINAL AF""
FILED IN
COURT OF CRIMINAL APPEALS MAR 182015
NAR 20 2015

Abel Acosta, Clerk

VEEFEIW FOR DISCRETIOMARY REVIEW

James Earl Piland #1919190
Alfred Stringfellow Unit
1200 F.M. 655
Rosharon, Texas 77583

ORAL ARGUMENT WAIVED
 IDENTITY OF PARTIES

TRIAL JUDGE PRESIDING

The Honorable Judge Gossett
Courthouse, 115 Main St., Rocn? 303
Henderson, Texas 75652
Telephone #{903)657-0358

APPELLATE

The Honorable Justice Carter
The Honorable Justice Moseley, J.J
Chief Justice C.J. Moriss
Sixth Court of Appeals
Bi-State Justice B.ldg0
100 K. State Line Ave., Ho 20
Texar&ana, Texas 75501-5666

PETITIOKER

TRIAL DEFEASE ATTORNEY

Allison Biggs, Atty-at-Law
300 w. Main St.
Henderson, Texas 75652
Telephone #(903)657-8195

DIRECT APPEAL ATTORNEY

T.W. Davidson, Atty-at-Law
329 S. Fannin Avenue
Tyler, Texas 75702
Telephone #(903)535-9600

RESPONDENT

PROSECUTOR AND APPELLATE COUNSEL

Richard Kennedy, Atty-at-Law
Sack Wavrusa, Atty-at-Law
115 N. Main St., Room 302
Henderson, TeKas 75652-3147
Telephone #(903)657-2265
 .. 'TABLE OF CONTENTS. PAGE #

IDEOTITY OF PARTIES*............ ...., i

TABLE OF CONTENTS.. ii-iii

INDEX OF AUTHORmES......^...,......... »..

STATEMEK'T REGARDING ORAL ARGUMENT......

I. STATEMENT OF THE CASE.... .. I 1-3

II. STATEMENT OF PROCEDURAL HISTORY.....*......* 3-4

III. GROUNDS FOR REVIEW......................... 4

1. Judicial Misconduct - Was evidence factually and legal ;
ally sufficient to support the conviction?

2. Legal and Factual.Insufficiency of Evidence - Is the
indictment so flawed that the jury convicted the
Defendant of the wrong offense under the Texas Penal
Codes?

3. Void Judgment - Did the trlial judge atjuse his discre
tion in his failure to allow Defense Attorney to pro
perly prepare for trial - denying the Petitioner a
fair trial with effective counsel?

1 4. Ineffective Assistance of Counsel - Was defense coun
sel ineffective for* failure to file a Motion for Jury
, InstJtucticsn on a Lesser-Included offense?

5. Ineffective Assistance of Counsel r was defense coun
sel ineffective for her failure to investigate and
bring to trial the Petitioner's version of the facts?

6. Ineffective Assistance of Counsel - was defense coun
sel ineffective when she admitted she was ineffective
at trial due to trial judges actions?

7. Pzosecutorial Misconduct - Prosecutor failed to give
Defense Counsel full notice of enhancement of charges
until a half hour prior to Voir Dire?

ii
 TMBLE OF CONTENTS PAGE g

IV. ARfeXBter "AND ALACRITIES, 5-23

PRAYER FOR RELIEF... . . . . . . . . . . . . 23-24

VERIFICATION *....... .... 24
•;>- • •• - ••-.•., •• • < '..-••
CERTIFICATE OF SERVICE. .•..,._...' .* 25
APPENDIX A
, ' ' ...,., A. • ..'....„
<• Opinion of the Sixtii Court of Appeals at Texarkana

3.11
FEBERRL STATOTES IM3EX OF Al^ORTTTES PAGE #

E?ule.s of Criminal Procedure,.' Rule 60(b) 11
28 U.S.C.,§n46.....v*.......................... 24

SUPREME COURT REPORTER

Berger v. U.S., 55 stct. 629 (T985)..;..........„.....I........ 23
Cronic v. U.S., 104 S.Ct. 2039 (1984)......i................... 12
Cuyler v. Sullivan, 100 S.Ct. >716 (1978),..................... 20
Haines v. Kerner, 92 S.Ct. 594 (-1972) ..*.... 5
Hughes v. Rcwe, 101 S.Ct„ 173 (1988)........................... 5
In Re Winship, 99 S.Ct. 1073 (1978)............................ 22
Jackson v. Virginia, 99 S.Ct. 2781 (1978)............ 7,22
Jchnscn v. LanJo, 120 S.Ct. 522 (1999)........ 17
Liparota v. U.S., 105 S.Ct. 2084. (1985) .' 22
Maxwell v. Sheppard, 86 S.Ct. 1507 (19*66) 11
Namet v. U.S., 83 S.Ct. 1151 (1963).........*.... 21
Roapilla v. Beazd, 125 S.Ct. 2456 (2005) , 19
Skinner v. State, 118 S.Ct. 1526 (1998) 15
Snyder v. Ccnrnoiwealth of Mass., 54 S.Ct. 330 (1934)........... 11
Strickland v. Washington, 104 S.Ct. 2052 (1984).. 12,17,19,20

MdJEkAL REPORTER

Johnson v. Lanb, 179 F.3d 352 ( .03x1999) 17
Rogers v. Israel, 746F.2d«1288 (___ Cir 1984). 19
Romnel v. Estelle, 590 F.2d 103 (5th Cir 1979). 17
Washington v. Strickland, 693 F.2d 1243 (5th Cir 1982) 16
Wiggins v. Procunier, 753 F.2d 1318 (5th Cir 1985). * 5
fflSS&S STATUTES

Texas Penal Code § 4.31(c). 14
Texas Penal Code § 9.31(c)(l)(2)...... ... 6,8
Texas Penal Code § 22.01 5,23
Texas Penal Code § 22.01(b)(1)....... 5
Texas Penal Code § 38.03(a).... 8
Texas Rules Of .Appellate Procedure, Rule 66.3 23
Texas Rules Of Appeallate Procedure, Rule 63.1 1

IV
SOimigESTE^.'REPORTER , 5BBEB OF AttTHORITIES PAGE #

Aguilar y. State, 682 S.W.2tf 556 (Tx.Cr.App. 1985).... 13
Barbernell Vi State, 257 S.W.3d'248-(Tx.App. 2008)............ 22
Bell v. State,, 693 S.W.2d 434 (Tx.Cr.App. 1985) 14
Bermudez v. State, ,§33, S.W.2d 805 (Tx.Cr.App. 1976) 22
Eignall v. State, S87' S.W. 2d 21 (Tx.Cr*. App. 1984) .;..... 3,14
Emery'v. State, 881 S.W.2<5 702 (Tx.Cr.App-. 1994)i;.;-....'.'.'•.'-...• 7
Ex Parte Barfield,' 697 S.W.2d «307 (Tx.Cr.App. 1985)..........•-. 7
Ex Parte Harris, 596 S.W.2d 293 (Tx.Cr.App. 1980)............. 12
ExParte Seatch,'5e0S.W.2d. 593' (Tx.Cr.App. 1979) 22
Ex Parte Welbom, 785 S.W.2d 391 (Tx.Cr.App. 1990)............ 19
Haitptoh v. State, 66 S.W.3d 430 (Tx.App.-Houston [1st Distil
2001) 10
Jiminez v.' State, 953 S.W.-2d 293' (Tx.App.-Austin 1997)........ 10,11,15,20
Jones v. State, 586 S.W.2d 542 (TktCr.App.. 1979).......... *......... 13
Jones v. State, 984 S.W.2d 254 (Tx.Cr.App. 1998).............. 9,14
Kerns v. State, 550 S.W.2G 91 (Tx.Cr.App. 1977) 23
Lofton v. State, 6" S.W.3d 796 (Tx.Cr.App. 2001) 9,10,11,13,14,
15,20
Lofton v. State, 45 S.W.3d 649 (Tx.Cr.App^ 2001)...... 9,10,14
Kathis v. State, 67 S.W.3d 918 (Tx.Cr.App. 2002) 10,13•
Mitchell v. State, 807 S.W.2d 740 (Tx.Cr.App. 1991) , 10,15
Nethery v. State, 692 S.W.2d 686 (Tx.Cr.App. 1985) 9
Ortiz y. Jones, 917 S.w;2d 770 (Tx.Cr.App. 1996) 7
Preston v. State, 700 S ,W.2d 227 (Tx.Cr.App. 1985) 13
PrudhcfflG v. State, 989 S.W.2d 852 (Tx.App.-Kcustcn [14th Diet]
1999) ...........* .i.v........;.................... 22
Reed v. State, 703 S.W.2d 380 (Tx.Cr.App. 1986).. 9
Rickene v. State, 165 'S.K.33 675 (Tx.Cr.App. 2005) 13
Rousseau v. State, 855 S.W.2d 666 (Tx.Cr.App. 1993)..... 13,14
Royster v. State, 622 S.W.2d 442 (Tx.Cr.App. 1981)............ 13
Ruth v. State, 552 S.W.2d 517 (Tx.Cr.App. 1975) 23
Saunders v. State, 91.3 S.W.2d 564 (Tx.App.-Corpus Christi 1994) 10,11,15,20
Skinner v. State, 956 S.W.2d 532 (Tx.Cr.App. 1997)............ 15
Smith v. State, 676 S.W.2d 584 (Tx.Cr.App. 1984).'............. 9
Sutton v. State, 548 S.W.2d 697 (Tx.Cr.App. 1977). 13
 Cause No.

IN THE

COURT' OF CRIMINAL APPEALS

OF TEXAS

JAMES EARL PILAND §
Petitioner , i IN THE 4th

VS. =••'.:§ JUDICIAL DISTRICT COURT

THE STATE OF TEXAS , .OF RUSK COUNTY, TEXAS
Respondent §

PETITION Km DISCRETIONARY REVIEW

TO THE HONORABLE JUDGE(s) OF SAID COURT:

COMES NOW, James Earl Piland, Petitioner, pro-se in the above styled and

raadbered cause, and respectfully files this Petition for Discretionary Review
pursuant to Rule 68.1, T.R.A.P. The Petitioner would show the Honorable

Court the following:

t* STATEMENT OF THE CASE

On the evening of 21 April, 2003, the Petitioner and his wife discovered

that their son and his friend had been stealing money from them out of their

bedroom. So to curtail any further thefts, the Petitioner woke his son,

Tyler, to help him put a door on his bedroom. During this time, a heated

argument began, leading to the Petitioner telling his wife to call the police.
j

In the meantime the Petitioner went into a nearby woods in order to remove

himself from further altercations, and to calm down.

It had already grown dark outside, end the Petitioner was barefoot. After
i

a short time the Petitioner heard several voices calling his name. He heard

a noise and a bright light was shined into his face, blinding him. The Peti-
r

tioner believed it was his son and Wesley Watkin, his son's friend. He turned

-iiv.
to walk further into the woods, but stepped on something sharp, and fell

down. The bright light was again shined into the Petitioner's eyes, and

a voice ordered him to "get up and come over here." The Petitioner stood

up and tried to see who it was, because there were several people calling

him. The Petitioner's hands were in front of his eyes, trying to block the

light. He was told to put his hands down, and when he did, he was hit with

either a gun or flashlight. These were the only things in the person's hands

that had hit him. At the same time, someone else began spraying something

in the Petitioner's face and eyes. The Petitioner's vision went black, and

he fell against his boat. As the Petitioner walked towards his house, the

officer continued hitting him in the face, while the other officer kept spray

ing mace everywhere. The Petitioner's son saw the officer strike the Peti

tioner with his gun or flashlight and jumped on his back. The Petitioner

ran into his house for safety, and to clean mace out of his eyes and mouth.

E.M.S. had to be called, as the officer had sprayed the Petitioner's 11 year

old daughter in the face, and needed her eyes flushed out. At no time were

handcuffs put on Petitioner nor did the officers announce who they were.

Two other officers were called in to arrest Petitioner. Officer Overtop

testified that Petitioner offered no resistance when Petitioner was hand

cuffed. The other officer from another city, took me out of the house, then

yanked the cuffs up behind Petitioner's back, forcing Petitioner to bend

over at the waist, hurting Petitioner's wrists, hands, and shoulders. This

also was recorded on the 2nd video, taut was not shown to the jury.

Officer Loden claimed I rushed at him out of the woods, but changed his

testimony when cross-examined to "a fast pace." He would also commit perjury*
i
stating he never struck the Petitioner at all. Then later admit stricking

the Petitioner on the side of the face "3 or 4 tiroes." (R.R. 4 at 151,153).

-2-
Note, testimony from eyewitnesses show he ailsovfstruck the Petitioner with

an object between his eyes Loden then wrote up multiple charges against the

Petitioner in attempts to cover his felonious assault on the Petitioner that

Loden knew was witnessed by others. The Petitioner was then taken to jail

and charged with "assault against a public servants" During pre-trial hearing

the trial judge asked the defense attorney if she was prepared to go to trial.

She stated "no" because she and the prosecutor were working on a plea deal

due to the multiple charges. But the judge ignored her and set the case

for trial the next day, despite their being multiple other cases on the Docket

before the Petitioner's case.

The Petitioner was tried and convicted by a jury. Punishment was assessed

at sixteen (16) years confinement in the TDCJ-CID. A Motion For Appeal was
filed at trial.

On 17 December, 2014, the Sixth Court, of Appeals of Texas at Texarkana

affirmed the conviction. On 1/22/2015 the Texas Court of Criminal Appelas

granted the Petitioner's pro-se Motion For Extension of Time to file Motion

for Petition For Discretionary Review. The time extension was until March

17, 2015.

This timely filed Petition For Discretionary Review follows.

MO ORAL ARGDMERT IS REQUESTED

U. STATEMENT OF PROCEDURAL MSTORYo

1. The Petitioner appeared before t!he Fourth Judicial District Court of
Rusk County, Texas, on the charge of assault of a public servant on 2-18-2014.

The jury found the Petitioner guilty, and assessed punishment at (16) sixteen

years confinement in the Texas Department of Criminal Justice-Correctionar'

Institutional Division.

2. A Motion for Appeal was requested at trial. Defense Counsel filed a

-3--
Direct Appeal in the 6th Appellate District Court of Appeals of Texas at

Texarkana. The Appellate Court affirmed the Petitioner's sentence on 17

December, 2014. No Motion for Rehearing fran any source to indicate that if defen

dant was, guilty, he was guilty only of the lesser offense." Lofton v. State,

Id., 6 S.W.3d at 797. "Anything more than a scintilla of evidence is suffi

cient to entitled a•defendant'to a lesser charge." Lofton, supra, at 799;

Bignall v. State, 887 S.W.2d 21, 23 (Tx.Crim.App. 1994). "Whether there

is evidence within or without the defendant's testimony, which raises the

lesser offense controls the issue of whether an instruction en the lesser

included offense should be given." Jones v. State, 984 S.W.2d 254, 257 (Tx.

Crim-App. 1998).

"Although it is clear that the issue of self-defense may be raised by

evidence'.other than the defendant's testimony, (See Smith v. State, 676 S.W.2d

584 (Tx.Crim.App. 1984), it is equally clear that some evidence must show

that defendant reasonably believed that force was necessary to protect him

self against unlawful force-of'another." Nethery v. State, 692 S.W.2d 686,704

(Tx.Crim.App. 1985); Seed v. Stat®, 703 S.W.2d 380, 382 (Tx.Crim.App. _).
That evidence was provided by witnesses seeing Lcden strike an unarmed

Petitioner between the eyes with an object, AND by loden's own testimony

of spraying the Petitioner with gas and further testimony of him striking

the Petitioner 3 or 4 times in the face.

"For a charge on a lesser-included offense to be given, there must be

some evidence from which a jury could rationally acquit the defendant of

-9-
the lesser included offense; the evidence must establish the lesser-included

offense as a valid alternative to the charged offense." Mathis v. State, 67

S.W.3d 918, 920 (Tx.Crim.App. 2002).

"Either the defendant cr the State is entitled to an instruction on every

issue raised by the evidence, whether produced by the State or the defendant,

and whether it is weak, strong, impeached, or contradicted; it is then the

jury's duty to determine whether the evidence is credible arx3 supports the

lesser-included,offense." Hampton v. State, 66 S.W.3d 430 (Tx.App.-Houston

[1st Dist] 2001). "The Court of Appeals held that because the evidence in

this case was subject to two possible interpretations - one interpretation

supporting a conviction of assault and the other for resisting' arrest - then

appellant was entitled to an instruction on'the lesser-included offense."

Lofton, supra, 45 S.W.Sd at 653.

"Reversal is required if the error resulted in some harm to the accused,

•some' meaning" 'any'*.' Jimlnaz v. State, 953 S.W.2d 293, 299 (Tx.App.-Austin

1997, pet. ref'd). "If the absence of the lesser-included offense instruction

left the jury only with the options either to convict the defendant of the

charged offense or tc acquit him ' fas the case at bar], a finding of harm

is essentially automatic because the jury was denied the opportunity to con

vict the defendant of the lesser offense." Iofton, 6 S.W.Sd at 800; see

also: Hi&chell v. State, 807 S.W.2d 740, 742 (Tx.Crim.App. 1991); Jiminez,

supra, at 299 (citing Saunder v. State, 913 S.W.2d 564, 571 (Tx.App.-Corpus
Christi, 1994). "Harm is presumed because of the possibility that the jury,

believing the defendant to have coffaritted seme crime but given the option

only to convict him of the greater offense, may have chcsen to find him guilty

of that, greater offense, rather than tc acquit him altogether, even though

it had a reasonable doubt that he really committed the greater offense."

-10-
 See Saunders, supra, at 571; Jindnez, supra, at 300. "we cannot say that

the district court's refusal to instruct the jury on the lesser-included

offense of resisting arrest did not result in some harm to appellant." Lofton,

6 S.W.3d at 800.
r

Failure to properly instruct the jury on "mens rea" and present a proper

indictment, including the lesser-included offense of resisting arrest violated

.due process of law. A reversal and a new trial is warranted due to a VOID

indictment. (Rule 60(b), F.R.A.P.)

ISSUE 3: Did the Trial Judge abuse his discretion in his failure to allow

both the prosecutor and defense counsel to properly prepare for

trial, thus denying the Petitioner a fair trial with effective
Counsel?

"Broadly stated, the accused is entitled to a trial on the facts, in accor

dance with the law and the evidence in the case, with an opportunity to defend

before an unbiased tribunal, and free from any extraneous influence that

might be to his or her prejudice." Maxwell v. Sheppard, 86 S.Ct. 1507 (1966).

"State is free to regulate court procedure in accordance with its own
conception of policy and fairness without infringing on 14th Amendment, unless

some fundamental principle of justice is violated." Snyder v. Commonwealth of

Massachusetts, 54 S.Ct. 330 (1934).

In the instant case at bar, the Trial Judge asked the Prosecutor and Defense

Counsel if they were prepared to go to trial. The Prosecutor stated they

were ready. The Defense Counsel stated they were not ready, as the prosecutor

and she had been working out a plea deal, due to the multiple other charges
connected with this case. (Officer Loden had also brought charges of public

intoxication (Petitioner was on his own property), resisting arrest (lesser-

included offense), threat of retaliation, aggravated assault, and assault

-11-
of public servant (for supposedly tearing his shirt).(BOTE: If Petitioner
tore his shirt, why was it not testified to at trial, or shown as evidence?)).

The Trial Judge then ordered the case set for Docket the very next day.
By his actions, the Petitioner went to trial with an attorney who admittedly
was not prepared to defend her client.

Thus> the Petitioner was denied effective assitance at trial by the Trial

Judge, which denied him due process and equal protection. "That " a ' person
who happens to be a lawyer is present at trial alongside the accused, however,

is not enough to satisfy the constitutional command." Strickland v. Washing

ton, 104 S.Ct. 2052 (1984).

"Actual, or constructive denial of assistance of counsel altogether is

legally presumed to result in prejudid^;."4? Id., at 2053.

"Right to effective assistance of counsel is recognized not fee it& own

sake, but because of the effect it has on the ability to the accused to receiv
a fair trial." U.S.C.A. 6; Creole v. U.S., 104 S.Ct. 2039 (1984).

"Mere pro Forma appearance of counsel does not amount to the assistance

of counsel and due process of law guaranteed by federal constitution and

it does not afford the right of being heard by...counsel guaranteed by state

constitution. Such unconstitutional provisions require that counsel render

reasonably effective assistance." Ex Parte Harris, 596 S.W.2d 293 (Tx.Crim.

App. 1980).

Thus, by the Trial Judge's refusal to allow defense counsel more time

to prepare her client's case for trial, Petitioner was denied effective assis

tance of counsel. Mflffl*' In the Appellate Brief during the direct appeal,
the defense counsel wholeheartedly admits she was ineffective.

The conviction should be reversed, and the Petitioner be afforded a new

trial in a different court, as the trial judge has shown bias against the

-12-
Petitioner or his attorney by refusing a continuance, violating due process

and effective assistance of counsel to the Petitioner.

ISSUE 4: Was defense counsel ineffective in failing to file a Motion for

Jury Instruction on Lesser-Included Offense of Resisting Arrest?

"Under certain, limited circumstances, a criminal defendant will be en

titled to a jury instruction on a lesser-included offense of the offense

charged." Mathls v. State, supra, at 925 (Tx.Crim.App. 2002).

"The applicable test is referred to as the Royster-Rousseau test, or some

times, as the Royster-Aguilar test." (See Royster v. State, 622 , S.W*2d

442> 444 (Tx.Crim.App. 1981); Aquilar v. State, 682 S.W.2d 556, 558 (Tx.Crim.
App. 1985); Rousseau v. State, 855 S.W.2d 666, 672 {Tx.Crlm.App* 1993).
"The test has two steps: (1) first, determine whether the offense is a

lesser-included offense of the offense charged; and (2) second, evaluate

the evidence to determine whether there is some evidence that would permit

a jury rationally to find the defendant is guilty only of the lesser offense."

Mathls, supra, at 925; See also: Rickens v. State, 165 S.W.3d 675, 679 (Tx.

CrinuApp. 2005).

"Case law from the Court of Appeals indicates resisting arrest is a lesser-

included offense of assault on a public servant." See: Preston v. State, 700

S.W.2d 227, 230 (Tx.Crim.App. 1985); Sutton v. State, 548 S.W.2d 697, 699

(Tx.Crim.App. 1977)(stating that "resisting arrest is a lesser-included offense

of assault on a public servant."). Lofton v. State, 6 S.W.3d 796 (Tx.App.-

Austin 1999). "...relevant test is whether the lesser offense could be pro

ved by the same facts necessary to establish the offense charged*" Picken, .

supra, at 679; Jones v. State, 586 S.W.2d 542, 545 (Tx.Crim.App. 1979).
Now, the Officer, Loden, stated they were attempting to handcuff the Peti*»

ticner. Another Officer, Wilson, sprayed Petitioner in the face with mace.

-13-
The Petitioner "fled" and he tried to grab the Petitioner by the back of

his shirt when his arm was struck by the Petitioner. Pursuant to Tx.Pen.

Code, § 4.31(c), the Petitioner was justified in his actions, as he was being
maced, beaten, and felt threatened by the excessive force used against him.

Is it not rather suprising after Loden had struck Petitioner "3 or 4 times

on the side of the face" and between the eyes with an unknown object, that

the Petitioner only struck Loden's arm? After all, Loden was assaulting

the Petitioner, as Loden testified to (R.R. 4 at 151) and as other eyewitnesses

testified to.

"In order to be entitled to an instruction on the lesser offense of resis

ting arrest, there must be some evidence to permit a jury rationally to

find the appellant is guilty only of the lesser, and not of the greater.

Therefore, in the instant case, there must be some evidence that appellant

intentionally prevented or obstructed his arrest by using force against Officer

[Loden], and the appellant did not 'intentionally, knowingly, or recklessly

cause bodily injury to [Loden].'" Lofton, 45 S.W.3d 649.

"Court of appeals analyzes lesser included offenses by determining whether

there is any evidence in the record from any source to indicate that if defen

dant was guilty, he was guilty only of the lesser offense," Lofton, 6 S.W.3d

at 797. "Anything more than a scintilla of evidence is sufficient to entitle
a defendant to a lesser charge." Id., at 799; Biqnall, supra, at 23. "Whether
there is evidence, with or without the defendant's testimony, which raises
the lesser offense controls the issue of whether an instruction on the lesser
included offense should be given." Jones, supra, at 257.
"The evidence may be proffered by the State or the defense; the evidence
may be strong or weak, unimpeached or contradicted."/ (See Rousseau, supra, at
672; Bell v. State, 693 S.W.2d 434, 442 (Tx.Crim.App. 1985). "So long as

-14-
there is some evidence which Is:'directly germane' to a lesser included offense

for the fact finder to consider, then an instruction on the lesser included

offense ie warranted." See; Skinner v. State, 956 S.W.2d 532, 543 (Tx.Crta.

App. 1997); cert denied, 118 S.Ct. 1526 (1998).

[R]eversa1 is required if the error resulted in some harm to the accused,

•sob®' meaning 'any'." Jlminez, supra, at 299 (Tex.App.-Austin 199?, pet.

ref*d). "If the absence ©f the lesser included offense instruction left

the jury only with the options either to convict the defendant of the charged
offense or to acquit him [as in the instant case at bar], a finding of harm

i© essentially automatic because the jury was denied the opportunity to con

vict the defendant of the lesser offense." Lofton, 6 S.W.3d at 800; see

also: Mitchell, supra, at 742.(Tx.Crim.App. 1991); Jimlnes, supra, at 299 (ci
ting Saunders v. State, 913 S.W.2d 564, 571 (Tx.App.-Corpus Christi 1994).
"Harm is presumed because ©f the possibility that the jury, believing

the defendant to have ccasmitted seme crime but given the option only to con

vict him of the greater offense, may have chosen to find him guilty of that

greater offense, rather than to acquit him altogether, even though it had

a reasonable doubt that he really committed the greater offense." See: SuaajT-'
decs, supra, at 571; Jiminez, supra, at 300. We cannot say that the district

court's refusal to instruct the jury on the lesser included offense of resis

ting arrest did not result in some harm to appellant." Lofton, 6 S.W.Sd 800 .

The failure to give the jury a jury instruction on the lesser-included off#:

ense, despite having all the essential elements that supported such an instruc
tion was ineffectiveness of trial counsel for her failure t© investigate

and question eyewitnesses. Likely this was caused by the Judged failure

to postpone the trial for the trial counsel to make the required pre-trial
investigation.

-IS-
 As such, due process and effective assistance of counsel was denied by

defense counsel and the trial judge, and a reversal of this conviction and

anew trial is warranted in this case.

ISSUE 5: Was Defense Counsel ineffective for her failure to investigate

and bring to trial the Petitioner's version of the facts? (See Appel

late Brief for Direct Appeal, pgs. 12-14).

As can be seen by para. I Statement of the Case, the case the jury heard,

and para. I are quite different. Yet witnesses that testified for the defense

testified what is. shown in para. I. Yet defense counsel did not have the

Petitioner testify, nor submit a Motion for Jury Instruction on the Lesser-

Included Offense of Resisting Arrest. She failed to make an adequate inves

tigation and believe her client's version Of the facts of the case, which

was wholely supported by eyewitnesses.

"Although the fate of a criminal defendant is determined at trial, the

cause of that trial, the cause of that trial can be decisively affected by

actions of defense counsel in preparing the case." Washington v. Strickland,

693 F.2d 1243 (5th Cir 1982).

The Petitioner alleges failure to render an adequate investigation into

the case, and to believe the Petitioner and eyewitness accounts of the facts

of the case. This can be shown by the fact that even prior to trial a plea

deal was being negotiated to settle other charges being filed by Officer

Loden, the person who in fact committed aggravated assault on the Petitioner.

Pictures and statements supported the Petitioner's version of the facts,

yet not even a Motion for the jury instruction on the lesser offense was

filed.

"When a defendant alleges that his counsel's failure to investigate preven

ted counsel from making an informed tactical choice, he must show that know-

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.ledge of the investigated evidence would have altered his counsel's decision,

and that the basis underlying his counsel's tactical choice to pursue or

forgo a particular course would have been invalidated, in order to satisfy

prejudice prong of ineffective assistance of counsel claim." Johnson v. Lamb,

179 F.3d 352, cert.denied, 120 S.Ct. 522 (1999).

As has been testified to at trial by Rebecca Piland, Wesley Watkins, and

Tyler Chiasson, all the actions committed by the Petitioner were in fact

"self-defense maneuvers" to protect himself from being beaten upon by Lcden.

(R.R. 4 at. 92-94, 106, 120-122, 125, 129-133, 142-147) Had defense counsel

investigated . into the Petitioner's version of the facts, she would have not

only, filed for Instruction on Lesser-Included offense, but also sought crimi

nal charges against Lcden for police brutality. Instead the defense counsel

was plea bargaining with the prosecutor on dropping the other charges trumped

up by Loden and Wilson in order to cover their felonious acts.

"If there is only one plausible line of defense, the court concluded,

counsel must conduct a 'reasonable substantial investigation* into that line

of defense, since there can be no stratigic choice that renders such an inves

tigation unnecessary. The same duty, exists if counsel relies at trial on

only one line of defense, although others are available. It must include

'an independent examination of the facts, circumstances, pleadings, and laws

involved.'" Strickland, supra, at 2061 (quoting Rommel v. Estelle, 590 F.2d.

103, 104 (5th Cir 1979).

It should be noted by the Honorable Court that two incidents occurred

just prior to the Voir Dire. First* by defense counsel's own admissions,

"Jury selection in this case was on a Monday morning, 18 February, 2014."

Attorney Biggs filed a Motion for continuance early that morning and argued

it before Voir Dire began. Attorney Biggs informed the Court she was not

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ready for trial at -that time. R.R. 3 at 7. She informed the Court that

Appellant had been arrested the previous month for a new felony charge and

that she believed the respective parties would be able to settle the cases

after the new case was filed in. Id. She informed the Court that Asst.

D.A. Wavrosa and she had spoken the previous Friday afternoon at about 3

p.m., and until that time, she had been unaware the State intended to take

Mr. Piland's assault on public servant case to trial on Monday the 18th.

Id. at 8w She argued that it would be efficiency and judicial economy (on

the part of the. court) and in the best interest of Mr. Piland to wait on

a possible trial in the assault on public servant case until the new (and

other) cases was filed in. Id. She pointed out that several other attorneys

(including the writer) had trial cases that were set before hers, and thus

she was baffled as to why Appellant's case was going to trial this day when

other, older1 cases were listed on the docket before Appellant's case. Id.

The Court denied her Motion. Id. at 9." (Brief for Appellant for Direct

Appeal, App. A, pgs. 6-7).

The second issue was that just before Voir Dire the defense attorney was

notified, when the prosecuting attorney asked the jury if any of them could

not, in good conscience, sentence a person to twenty years in prison. Having

been led to believe her client was facing a 3rd degree felony with no enhance

ments, defense counsel objected to this question. Both attorneys were called

to the bench, and in conference during Voir Dire the prosecuting attorney

notified defense counsel of his intention to seek enhancement. He stated

before the trial judge that a copy of the enhancement paragraph had been

faxed to defense counsel's office at 8 a.m. that morning. Voir Dire began

at 8:30 a.m. The trial judge allowed it. '<

Thus, in all honesty, the Petitioner, states his defense counsel's ineffec-

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tiveness was due to misrepresentations by the Asst. District Attorney, and

the bias shown 'by the trial judge; Judge Cossett. In fact, the trial was

so rushed that even the indictasnt before the Court was without 'mens rea"

arid added last minute enhancements. (R.R. 4 at 164)..

"Criminal defense counsel must have firm command of facts of case as well

as governing law before he can render reasonably effective assistance of

counsel." Ex Parte Welborn, 785 S.W.2d 391 (Tx.Crim.App. 1990).

Defense Counsel had not even read the entire indictment to see if it met

the irdnimum standards of the law. Thus/ she was ineffective for failure

to object to the defective indictment even before this case went to trial.

The ' State would have been forced to either dismiss the indictment and start

over, or attempt to amend and interleniate the indictment, giving defense

counsel added time to adjust to the added enhancement paragraph and investi

gate further into the case. "It is the duty of the lawyer to conduct a prompt

investigation • of the circumstances of the case and to explore all avenues

leading to facts relevant to the merits of the case and the penalty in the

event of conviction. The investigation should always include efforts to

secure information in the possession-of the prosecution aixS .law enforcement

authorities. The duty to investigate exists regardless of the accused's

admissions or statements to the lawyer of facts constituting guilt or the

accused's desire to plead guilty." Rcaapdlla v. Beard, 125 S.Ct. 2456 (2005).

"When determining whether defendant received effective assistance of counsel

in violation of the 6th Amendment, benchmark must be whether counsel's conduct

so undermined proper functioning of adversarial process that trial cannot

be relied on as having produced a just result." Rogers v. Israel, 746 F.2d

1288 ( ,Cir 1984); Strickland, supra, at 2064.
ISSUE 6; Was defense counsel ineffective when she, herself, admits she was

ineffective at trial due to Trial Judge's actions?

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 "First defendant must show that counsel's performance was deficient, re

quiring showing that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed defendant by the Sixth Amendment,.."

Id.> at 2052. ,

The Petitioner , has shown that defense counsel failed to even read the

indictment against her client, which had failed to give mandatory "mans rea"

in the charge brought against her client. Then she failed to Motion for

Jury Instruction oil the Lesser-Included Offense of Resisting Arrest. The

Jury would ,most probably had found the Petitioner guilty of only the lesser

offense when they heard the testimony from defense witnesses.

"...second, defendant must show that deficient performance prejudiced

the ,defense by shewing the counsel•s errors were so serious as to deprive

the defendant of a fair trial; a trial whose result is unreliable." Id.

"Harm is presumed, because of the possibility that the jury, believing

the defendant to have committed some crime but given the option only to convict

him of the greater offense, may have chosen to find him guilty of that*greater

offense, rather than to acquit him altogether, even though it had a reasonable

doubt that he really c<»smitted the greater offense." See Saunders, supra, at

571' Jiminez, supra, at 300.. "We cannot say that the [defense attorney's

failure to request the trial judge] to instruct on the lesser included offense

of resisting arrest did not result in some harm to appellant." Lofton, 6 S.W.

3d at 800.

"Counsel, however, can also deprive a defendant of the right to effec

tive assistance of counsel simply by failing to render 'adequate legal assis

tance'" Strickland, supra, at 2064; Cuylcr v. Sullivan, 100 S.Ct. at 1716,

1719.

The Petitioner has met both prongs of the Strickland standard as set out

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