PD-0289-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/15/2015 4:49:14 PM
Accepted 4/16/2015 12:16:35 PM
ABEL ACOSTA
CLERK
April 16, 2015
FILED
IN THE 13TH COURT OF APPEALS
No. 13-13-00080-CR CORPUS CHRISTI
10/28/13
IN THE TEXAS COURT OF APPEALS DORIAN E. RAMIREZ, CLERK
13th DISTRICT BY DTello
AT CORPUS CHRISTI, TEXAS
JESSE TIRADO LOPEZ, Appellant
V.
THE STATE OF TEXAS
DIRECT APPEAL FROM THE
•th
85in DISTRICT COURT OF BRAZOS COUNTY
TRIAL COURT CAUSE NUMBER 12-01541-CRF-85
BRIEF FOR APPELLANT
Richard W.B. "Rick" Davis, P.C.
RECEIVED By: Rick Davis
IN THE 13TH COURT OF APPEALS
CORPUS CHRIST! State Bar No. 05539100
OCT 28 2013 504 E. 27th Street.
Bryan, Texas 77803
DORIAN E,E. RfMIRE
RAMIREZ, CLERK (979) 779-4357
BY__ (888) 435-4080-facsimile
Attorney for Appellant BECE^D
Jesse Tirado Lopez
ORAL ARGUMENT REQUESTED
Wb
No. 13-13-00080-CR
IN THE TEXAS COURT OF APPEALS
13th DISTRICT
AT CORPUS CHRISTI, TEXAS
JESSE TIRADO LOPEZ, Appellant
V.
THE STATE OF TEXAS
DIRECT APPEAL FROM THE
85th DISTRICT COURT OF BRAZOS COUNTY
TRIAL COURT CAUSE NUMBER 12-01541-CRF-85
BRIEF FOR APPELLANT
Richard W.B. "Rick" Davis, P.C.
By: Rick Davis
State Bar No. 05539100
504 E. 27th Street.
Bryan, Texas 77803
(979)779-4357
(888) 435-4080-facsimile
Attorney for Appellant
Jesse Tirado Lopez
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Jesse Tirado Lopez
Appellate Counsel: Richard W.B. "Rick" Davis, P.C.
By: Rick Davis
504 E. 27th Street Ave
Bryan, Texas 77803
Trial Counsel: Thomas B. Reed
P.O. Box 9347
College Station, TX 77842-9347
APPELLEE: The State of Texas
Appellate Counsel Doug Howell
Assistant District Attorney
300 E. 26th Street, Suite 310
Bryan, Texas 77803
Trial Counsel: John Brick
Assistant District Attorney
300 E. 26th Street, Suite 310
Bryan, Texas 77803
TRIAL JUDGE: Hon. Dan Beck
(sitting by assignment)
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ii
TABLE OF AUTHORITIES iv
L STATEMENT OF THE CASE 1
II. STATEMENT REGARDING ORAL ARGUMENT 2
III. ISSUES PRESENTED 2
IV. STATEMENT OF FACTS 3
V. SUMMARY OF THE ARGUMENT 12
VI. STANDARD OF REVIEW 13
VII. ARGUMENT '. 14
A. WHETHER APPELLANT RECEIVED EFFECTIVE ASSISTANCE
OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT OF THE
UNTITED STATED CONSITUTION? 14
B. WHETHER APPELLANT'S STATORY RIGHT PER THE TEXAS
FAIR DEFENSE ACT TO REPRESENTATION BY A COMPETENT AND
QUALIFIED ATTORNEY WAS VIOLATED? 24
VIII. CONCLUSION 37
IX. PRAYER 38
CERTIFICATE OF SERVICE 38
CERTIFICATE OF COMPLIANCE PER T.R.A.P. 9.4(i)(3) 39
APPENDIX A 40
in
TABLE OF AUTHORITIES
Cases
Belcher v. State, 93 S.W.2d 593, 595 (Tex. App.—Houston [14th Dist.] 2002, pet. dism'd) 20
Bitterman v. State, 180 S.W.3d 139, 142-43 (Tex. Crim. App. -- 2005) 35
Bone v. State, 11 S.W.3d 828, 833 (Tex. Crim. App. 2002) 17, 18, 27, 28
Bulter v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986) 20
Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. -- 1997) 28
Cantu v. State, 930 S.W.2d 594 (Tex.Cr.App. 1996) 30, 31, 32, 36
Castillo v. State, 751 S.W.2d 521,523 (Tex. App. -- San Antonio 1988, no pet.) 17
Chadwickv. Green, 740 F.2d 897 (llthCir. 1984) 23
Cuyler v.Sullivan, 446 U.S. 335,344(1980) 17
Dickerson v. State, 87 S.W.3d 623, 637 (Tex. App.—San Antonio 2002, no pet.) 20
Ex parte Burns, 601 S.W.2d 370 (Tex. Crim. App. 1980) 21
Ex parte Ewing, 570 S.W.2d at 943 21
Ex Parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993) 18
Flores v. State, 576 S.W.2d 632, 634 (Tex. Crim. App. 1979) 20
Golden v. Newsome, 755 F.2d 1478 (11th Cir. 1985) 23
Green v. Arn, 809 F.2d 1257, 1263 (6th Cir. 1987) 23
Hays v. State ofAlabama, 85 F.3d 1492 (11th Cir. 1996) 23
Hernandez v. State, 126 S.W.2d 53 (Tex. Crim. App. 1986) passim
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) 20
Javorv. United States, 724 F.2d 831 (9th Cir. 1994) 21,22
Manley v. State, 23 S.W.3d 172, 173-74 (Tex. App. Waco -- 2000) 33
McFarlandv. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) 18
Pinkston v .State, 744 S.W.2d 329, 333 (Tex. App. -- Houston [1st Dist.] 1988, no pet.)... 19, 20
Sneed v. State, 964 S.W.2d 764, 766 (Tex. App. Texarkana 1998, no pet.) 18
Stricklandv. Washington, 466 U.S. 668 (1984) passim
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) 20
Tippins v. Walker, 889 F. Supp. 91 (S.D.N.Y. 1995) 22
Statutes
Texas Code of Criminal Procedure, Art. 26.04 25, 27
Texas Fair Defense Act passim
Texas Penal Code § 12.42(d) 4
Texas Penal Code §22.01(b)(2)(A) 4
Constitutional Provisions
U.S. Const, amend. VI 12, 13, 30, 37
U.S. Const, amend. XIV 12, 13, 37
IV
I. STATEMENT OF THE CASE
The State of Texas brought this criminal case against Jesse Tirado Lopez in the
85th District Court of Brazos County, Texas. Jesse Lopez was charged with Assault
Family/Household Member with a Previous Conviction. On December 4, 2012,
the jury found him guilty of the charge. The 3rd Degree felony was enhanced to
Habitual Offender status since the Appellant had twice before been convicted of
Felony Driving While Intoxicated.
The punishment phase was tried to the Bench. The Honorable Dan Beck,
Visiting Judge Presiding, found the two enhancement paragraphs to be true and
sentenced the Appellant to serve 32 years confinement in the Institutional
Division of the Texas Department of Criminal Justice on the December 5, 2012.
(R.R. Vol. 5, P. 29).
Appellant was indigent and at trial was represented by a lawyer not qualified to
receive court appointments in felony cases of any kind.
Appellant, through counsel retained by his family, timely filed a Notice of
Appeal and a Motion for New Trial. A hearing on the Motion was conducted on
February 1, 2013. The Motion was overruled by operation of law. This appeal ensued.
II. STATEMENT REGARDING ORAL ARGUMENT
Due to nature of the case and the fact that this is apparently the first time that
the Texas Fair Defense Act has been construed, an oral argument would likely
benefit the Court. Oral argument would emphasize and clarify the written
arguments in the brief and aid the Court in analyzing and understanding the facts.
III. ISSUES PRESENTED
A. Whether Appellant received effective assistance of counsel guaranteed by
the Sixth Amendment of the United States Constitution?
B. Whether Appellant's statutory right per the Texas Fair Defense Act to
representation by a competent and qualified attorney was violated?
IV. STATEMENT OF FACTS
The underlying facts of this case involve an argument between two people,
Jesse Tirado Lopez and Dora Molina Mendez, who were in a long-term dating
relationship together.
On the night of February 14, 2013 and the early morning hours of February
15, 2013, Mr. Lopez and Ms. Mendez went to a couple of local bars together to
celebrate Valentine's Day. Throughout the course of the night, the couple
consumed several beers. Their night started at a bar called El Toro. Mr. Lopez and
Ms. Mendez were there for approximately two hours and each had at least two
beers while there. From there, the couple went to a bar called Double D's where
they both continued to drink alcohol.
Upon leaving Double D's, the couple began arguing about several things.
The argument escalated to where both parties became physical with each other.
The couple got into Mr. Lopez's truck, and he drove. They traveled to his
nephew's house where the arguing continued.
Once there, Mr. Lopez went into the home, and Ms. Mendez remained in the
truck parked outside. She continually unlocked the door from the interior of the
truck deliberately causing the alarm to go off each time. Shortly thereafter, the
police arrived because of the noise disturbance.
The police officer found Ms. Mendez and testified that she appeared
distressed. Ms. Mendez claimed that Mr. Lopez had hit her in the face. The
3
officer took her word for it and arrested Mr. Lopez. Jesse Tirado Lopez, the
Appellant herein, was initially charged with Assault - Family Violence, a Class A
Misdemeanor.
An attorney named Thomas Reed was appointed to represent the Appellant.
Pursuant to a procedure implemented by the Texas Fair Defense Act, Mr. Reed had
been qualified by the five Brazos County elected judges to accept misdemeanor
appointments. He was not qualified to accept appointments on any felony cases,
notwithstanding his two requests in the early 2000's to be so qualified.
Because the Appellant had been previously convicted of Assault - Family
Violence, his new charge was upgraded to a 3rd degree felony pursuant to Texas
Penal Code §22.01(b)(2)(A).
Because the Appellant had twice before been convicted of Felony Driving
While Intoxicated, the felony charge was enhanced to the habitual felony
punishment range pursuant Texas Penal Code §12.42(d). Although Mr. Reed was
not qualified to accept appointments for any felony grade offense, he remained on
Appellant's case through the conclusion of the jury trial and the Court's
punishment hearing.
The Trial Court Proceedings
A. The Non- Voir Dire
The Voir Dire of the jury panel was conducted on Monday, December 3,
2012.
Jury Panelist Palermo said, in response to a question about Assault Family
Violence with prior convictions and whether or not the prior conviction would
cause her to believe the defendant had did what he was accused of in the case on
trial, "I guess. I mean, in my mind it's already making me think he probably did
it." (RR Vol. 3, p. 25) When asked if she could vote "not guilty" and separate a
prior offense from the case on trial, Ms. Palermo also said, "I don't know if I
could." (RR Vol. 3, p. 26).
When asked about Assault Family Violence with prior conviction and the
effect knowledge of a prior conviction would have on her, Jury Panelist Herwald
said, "If it was another person, it would be easier to convict them because different
people say the same thing." (RR Vol. 3, p. 43).
Jury Panelist Hall, when asked his opinion about Assault Family Violence
said, "I think family violence - the first offense should be a felony because your
family's who you trust and love." (RR Vol. 3, p. 45).
When admonished by the Court about the nature of the law and her
obligation to keep an open mind, Jury Panelist Kessel said, "I would like to say he
wouldn't be sitting there if he wasn't guilty." (RR Vol. 3, p. 47).
When Jury Panelist Hall was questioned by prosecutor John Brick as to
whether he could separate his feelings from the case on trial and base his decision
on the evidence, he said, "I don't think I could because I come from a past." (RR
Vol. 3, p. 48).
Jury Panelist Hyland, when asked whether it would hinder her ability to
serve on a jury if she did not know the details of the prior offense said, "I feel as
though my rights are being - if I'm serving on a jury, I should have every right to
know if this is a pattern that emerged." (RR Vol. 3, p. 50).
When asked about whether she could base her decision on evidence and not
speculation (and separate it from any prior experience she had), Jury Panelist
Morky said, "No. All of us - we have three quarters of us that raised our hands that
have some family instance of this." (RR Vol. 3, p. 53).
When asked as to how she would vote if she was on the jury without having
heard any evidence, Jury Panelist Rhea said, "I would say guilty because my son-
in-law is a College Station detective and I know how hard he works to bring a case
to the court and so he can't bring a case unless he's got all the evidence there for
the State to win." (RR Vol. 3, p. 63).
After being admonished by the Court about the need to be fair and impartial,
Jury Panelist Yanowski said, "Same with her. Wouldn't have brought up all that
info about knowing these types of laws and all that without some - getting in my
head about it. So I would have to say guilty right now." (RR Vol. 3, p. 64).
When asked if he could be a good juror by Mr. Reed, Jury Panelist
Baldobino said, "No." (RR Vol. 3, p. 79). Likewise Jury Panelists Pfeil, Merchant
and Bartholomew said, "No" when asked the same question. Id. Similarly, when
Mr. Reed asked Jury Panelist Palermo if she could be an impartial juror, she said,
6
"No." (RR Vol. 3, p. 80) Likewise, when asked if she could be an impartial juror
by Mr. Reed panelist Ms. Stahl said, "I don't think so." (RR Vol. 3, p. 81).
Finally, when Jury Panelists Ermis and Mader were asked if they could be
an impartial juror in this kind of case, they said, "No." (RR Vol. 3, p. 81).
The record does not reflect that Thomas Reed made any challenges for cause
- not a single one - notwithstanding the plethora of comments by several jurors
indicating that they had already disqualified themselves because of bias or
prejudice against the Appellant. Mr. Reed, because he made no record of
"agreements" with the State on jury selection, left nothing for review and insulated
himself from scrutiny. Appellant cites this part of the proceeding in detail as
illustrative of the lack of zealous advocacy and, indeed, sloppy representation that
his attorney provided him during jury selection. Through the inaction of
Appellant's attorney, Appellant is precluded from complaining about any error that
may have occurred during jury selection.
B. The Guilt-Innocence Phase
After jury selection and opening statement, the State presented evidence and
rested after calling only three witnesses, Officer Stacy Dowling, the alleged victim
Dora Mendez, and Investigator Greg Silber from the District Attorney's office.
(RR Vol. 4, p. 90). The Defense rested without putting on any evidence and the
State closed behind that. (RR Vol. 4, pp. 92-93).
After both sides rested and closed, the jurors were told to come back in
about an hour and a half, or at 12:30 p.m. Thus, one can infer that the trial
concluded at approximately at 11:00 a.m. on the same morning the State began to
present its evidence. (RR Vol. 4, p. 93)1. The jury convicted the Appellant.
C. The Punishment Phase
The punishment phase of the trial was tried to bench the next day. The State
proved that the Appellant had twice before been convicted of Felony Driving
While Intoxicated. Appellant's attorney did not call any character witnesses in his
defense. Visiting Judge Dan Beck assessed Appellant's punishment at 32 years
confinement in the Institutional Division of the Texas Department of Criminal
Justice.
D. The Hearing on the Motion for New Trial
Appellant timely filed a Notice of Appeal and a Motion for New Trial. A
lengthy, comprehensive hearing on Appellant's Motion for New Trial was
conducted on February 1, 2013.
The first substantive witness to testify at the hearing on the Motion for New
Trial was Judge Dana Zachary, the Judge for the Misdemeanor Associate Court in
Brazos County (RR MNT p. 21 -22)2. Associate Judge Glynis Gore presides over
1The hearing on the Motionfor New Trial on February 1, 2013 actually took longer than the
Guilt/Innocence phase of the trial.
2The conversation with Judge Zachary begins on page 15. Inasmuch as she is an officer of the
Court and a member of the judiciary, all of her statements should be considered as if having been
made under oath, notwithstanding the fact that the oath was administered 6 pages later.
the Felony Associate Court in Brazos County {Id. at p. 23). Judge Zachary keeps
and maintains the records for attorneys that apply to be put on the court appointed
attorney list for Brazos County, Texas {Id. at p. 23).
The Brazos County Indigent Defense Plan (promulgated pursuant to the
Texas Fair Defense Act) was admitted as Defendant's Exhibit No. 1 at the hearing
on the Motion for New Trial. Brazos County, Texas has three District Courts and
two County Courts at Law {Id. at p. 22). Admitted as Defendant's Exhibit No. 2 is
an exemplar of the Judge's Evaluation form for attorneys who apply to be placed
on the list of attorneys qualified {Id. at p. 24).
The request form one completes to be placed on the Brazos County
approved Court Appointed Attorney's list is divided by the grade of offense for
which one can qualify to accept an appointment. An attorney can apply to be
qualified to accept appointments in only misdemeanor cases. He or she can also
apply to be qualified to accept appointments on what are called "other Felonies"
{Id. at p. 25). Additionally, the attorney can apply to be qualified to accept "3G"
or "Enhanced" felonies {Id. at p. 25). The three Brazos County District Judges
require that lawyers have greater experience and to have demonstrated greater
proficiency and competence in criminal cases before they are approved to accept
appointments in "3G" or Enhanced felony cases. {Id. at p. 26).
Defendant's Exhibit Number 8, the list of Approved Counsel for
Appointment in Criminal and Juvenile Cases in Brazos County, Texas, was
9
admitted at the hearing on the Motion for New Trial {Id. at p. 27). Thomas Reed is
qualified to accept appointments in misdemeanor cases only {Id. at p. 28). Judge
Zachary initially appointed Mr. Reed to represent Jesse Tirado Lopez because it
initially appeared that he was only charged with misdemeanor Assault Family
Violence {Id. at p. 28).
When he applied to be put on the Brazos County Court Appointed Attorney
List, Mr. Reed applied to be qualified to accept both misdemeanor and felony
appointments {Id. at p. 30). The elected Judges of Brazos County qualified him to
accept misdemeanor cases {Id. at p. 30). He was deemed, however, unqualified to
accept court appointments in felony cases, even 3rd Degree felony cases {Id. at p.
31). In fact, he was even disqualified to accept court appointments to represent
Defendants in State Jail Felony cases {Id. at p. 31). After Mr. Reed's application to
be qualified to accept court appointments in felony cases was rejected, he applied a
second time and was again disqualified {Id. at p. 31).
At the hearing on Motion for New Trial, the Court received into evidence the
"Complaint" sub-folder that Judge Zachary maintained for Thomas Reed. It also
received into evidence the evaluation form for Mr. Reed that contains the three
District Judge's comments (which contained their opinions why Thomas Reed was
not qualified to handle felonies) {Id. at p. 32). Visiting Judge Beck admitted the
records into evidence but ordered that they be sealed for the Appellate Record {Id.
at p. 32).
10
Judge Zachary confirmed that, in the Court's file for State v. Jesse Lopez,
there existed no certification filed by Mr. Reed confirming that he contacted the
Appellant, Jesse Lopez, within 72 hours of appointment (or, for that matter, at all)
as required by the Brazos County Indigent Defense Plan {Id. at p. 34).
Appellant also called Sara Portillo as a witness at the hearing on Motionfor
New Trial {Id. at p. 37 et seq.) Ms. Portillo testified that she tried to contact
Thomas Reed before the trial on many occasions {Id. at p. 38). She estimated that
she tried to call him four or five times {Id. at pp. 38-39).
Ms. Portillo confirmed that Mr. Reed never told her that she could have
testified during the punishment phase of the trial to tell about Jesse Lopez' family
life, the fact that he is a good father, or anything like that {Id. at p. 39). She said
that she would have said favorable things about Jesse had she testified at the
punishment phase of his trial {Id. at p. 39).
Ms. Portillo said that Mr. Reed contacted her about getting clothes for Jesse
Lopez the day before his jury trial {Id. at pp. 39-40). Although he contacted her to
get clothes for the Appellant to wear during the jury trial, Mr. Reed did not have
any interest in talking to Ms. Portillo about Jesse, his case, or how she may have
been able to help with his defense {Id. at p. 40). In fact, Mr. Reed discouraged
Ms. Portillo and their children from even coming to trial {Id. at p. 40).
Ms. Portillo also testified that Mr. Reed never returned her phone calls and
never answered the telephone {Id. at p. 41). She said that Jesse Lopez
11
communicated with her prior to trial and expressed his frustration that his own
attorney (that is, Mr. Reed) would not contact him or come see him in jail {Id. at p.
42).
Ms. Portillo testified that she knew that both of the Mr. Lopez' hands had
been broken before trial {Id. at p. 45), and that it was hard for him to grab things
with his hands after he had injured them {Id. at p. 47). Moreover, she testified that
Jesse could not have punched anyone with his hands broken.
Appellant seeks a new trial.
V. SUMMARY OF THE ARGUMENT
Appellant argues that his Appellant's 6th Amendment3 right to effective
assistance of counsel and 14th Amendment4 right to due process were violated due
to the inaction of the attorney appointed to represent him. Appellant's attorney's
representation lacked any zeal, lacked thoroughness and lacked any pretrial
preparation. Appellant made repeated requests for his attorney to meet with him.
The meetings did not take place. Several phone calls and letters placed or sent,
respectively, by both the Appellant and the Appellant's family went unanswered.
Appellant's attorney ignored his own client's requests for communication.
Appellant further contends that was deprived of effective assistance of counsel at
trial by the failure of his appointed attorney to notify him of a plea offer.
3 U.S. Const, amend. VI
4 U.S. Const, amend. XIV
12
Appellant further argues that court appointed attorney Thomas Reed,
although approved for appointment to misdemeanor cases, is and was not a
qualified attorney on the Brazos County Court Appointed Attorney list for felony
cases and thus was not qualified to handle the Appellant's felony case. Appellant
was deprived of his right to representation by an attorney qualified to try felony
cases under the Texas Fair Defense Act. The deprivation of his rights under the
Texas Fair Defense Act also constitutes a per se denial of Appellant's 6th
Amendment right to effective assistance of counsel and 14th Amendment right to
due process.
VI. STANDARD OF REVIEW
The proper standard for attorney performance is that of reasonably effective
assistance. When a convicted defendant complains of the ineffectiveness of
counsel's assistance, the defendant must show that counsel's representation fell
below an objective standard of reasonableness under prevailing professional norms
and the client was prejudiced by this unreasonable conduct, which was set forth in
Strickland v. Washington, 466 U.S. 668 (1984) and adopted by the Texas Court of
Criminal Appeals of Texas in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App.
1986).5
5Appellant declines to assert substantially identical claims under the Texas Constitution in light
of the Court of Criminal Appeals' holding that "... [0]ur constitutional and statutory provisions
do not create a standard in ineffective assistance cases that is more protective of a defendant's
rights than the standard put forward by the Supreme Court in Strickland. Accordingly, we will
13
Appellant urges this Court to hold that the Standard for Review under the
Texas Fair Defense Act (hereinafter, the "FDA") is whether or not counsel
appointed was qualified per the FDA.
VII. ARGUMENT
A. WHETHER APPELLANT RECEIVED EFFECTIVE ASSISTANCE
OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT OF
THE UNTITED STATED CONSITUTION?
This is a case of flagrantly ineffective assistance of counsel. Mr. Thomas
Reed failed to effectively represent Jesse Lopez in the case brought against him for
Assault - Family Violence (Enhanced). The following is an introductory list of the
deficiencies of counsel that will be elaborated on hereafter:
1. Mr. Reed was not approved and qualified to be appointed on felony cases in
Brazos County.
2. Not only was Mr. Reed not approved to be appointed to handle "3G" or
Enhanced felonies, he was not even approved and qualified to handle State
Jail Felonies. In fact, his request to be approved to handle any caliber of
felony case was denied twice by the three District Judges of Brazos County,
Texas.
follow in full the Strickland standards in determining effective assistance and prejudice resulting
therefrom." Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986).
14
3. Mr. Reed failed to visit his client, Jesse Lopez, in jail despite his several
requests to do so from the Appellant, the Appellant's girlfriend and even the
alleged victim.
4. Mr. Reed failed to respond to phone calls placed by Jesse Lopez from jail.
5. Mr. Reed failed to respond to letters sent to him by Jesse Lopez from jail.
6. Mr. Reed acknowledged at the hearing on the Motion for New Trial that he
sent no letter to the Magistrate that appointed him confirming that he had
contacted Jesse Lopez, although such was required by the Brazos County
Indigent Defense Plan.
7. Mr. Reed failed to return several phone calls placed by Sara Portillo, Mr.
Lopez's girlfriend, when she called on his behalf.
8. Mr. Reed only spoke to his client at four, possibly five, brief court hearings
and at the jury trial; never outside of court.
9. Mr. Reed acknowledged that the only work he did on the case occurred in
the court room.
lO.Mr. Reed neglected to inform Ms. Portillo that she could have testified as a
witness on behalf of Mr. Lopez during the punishment phase of the trial.
1l.In fact, Mr. Reed actually discouraged Ms. Portillo and their children from
coming to the trial despite the fact that she could have and would have
testified that Mr. Lopez was a good father and a good man.
15
12.Mr. Reed admitted that the only time he contacted Ms. Portillo was to get
clothes for the Mr. Lopez to wear during trial.
13.Mr. Reed failed to ever speak with Dora Mendez, the alleged victim in this
case, despite her numerous attempts to contact Mr. Reed on Mr. Lopez's
behalf before the trial.
14.Mr. Reed admitted that the only time he ever spoke with Dora Mendez was
during cross examination at trial.
15.Mr. Reed never visited the scene where the offense that was the subject of
Mr. Lopez's trial supposedly occurred.
16.Mr. Reed never visited the scene where Appellant was arrested.
17.Mr. Reed failed to call any witnesses in Appellant's defense at trial.
18.In fact, Mr. Reed failed to put on any evidence in Appellant's defense at
trial.
19. Mr. Reed failed to prove to the jury that Appellant's hands were deformed
from a prior injury to the point that he could not possibly have hit the victim
without causing further injury to himself.
20.Mr. Reed failed to properly communicate to Appellant the State's plea offer
and what charge the State was offering to allow him to plead to.6
6 Mr. Reed also failed to sign and return a Motion to Substitute Counsel until the week of
Thanksgiving and almost a month after it was first sent to him, leaving new Counsel without
adequate time to prepare for a trial on December 3, 2012.
16
This is plain error, that is, error that is both apparent on the face of the trial
record and that error clearly had an adverse impact upon the substantial rights of
the Appellant. The ineffectiveness of counsel resulted in the accused not receiving
a fair trial. Thomas Reed, Appellant Jesse Lopez' attorney at trial, was physically
present, but completely absent in effort.7
If counsel entirely fails to subject the prosecution's case to meaningful
adversarial testing, then there has been a denial of Sixth Amendment rights that
makes the adversary process itself presumptively unreliable. Castillo v. State, 751
S.W.2d 521,523 (Tex. App. -- San Antonio 1988, no pet.) The Sixth Amendment
guarantees competent representation. Counsel deprives a Defendant of the right to
effective assistance simply by failing to_ render "adequate legal assistance." Cuyler
v. Sullivan, 446 U.S. 335, 344 (1980).
The United States Supreme Court has established a two-part test to
determine whether counsel was ineffective. Strickland v. Washington, 466 U.S.
668, 687 (1984). Applicant must prove (1) his trial counsel's representation was
deficient and (2) his trial counsel's deficient performance was so serious that it
prejudiced his defense. Id. at 686-687; Bone v. State, 11 S.W.3d 828, 833 (Tex.
Crim. App. 2002). To establish deficient performance, Applicant must prove by a
7Lawyer Brendan Sullivan received international media attention in his role as defense counsel
to Iran-Contra affair figure Oliver North. During the ensuing congressional hearings, chairman
Daniel Inouye suggested that North should speak for himself, because he had wearied of
Sullivan's constant objections to questions put to North. Sullivan responded, "Well, sir, I'm not a
potted plant. I'm here as the lawyer. That's my job." Thomas Reed's representation of Jesse
Lopez will be shown herein to have approached the level of a potted plant.
17
preponderance of the evidence that counsel's representation fell below the
objective standard of prevailing professional norms, and there is a reasonable
probability that, but for counsel's deficiency, the result of the proceeding would
have been different. Id.
Applicant must identify specific acts or omissions of counsel that constitute
the alleged ineffective assistance and affirmatively prove that they fell below the
professional norm for reasonableness. McFarland v. State, 928 S.W.2d 482, 500
(Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983
S.W.2d 249, 263 (Tex. Crim. App. 1998) (citing Strickland, 466 U.S. at 690). The
alleged ineffectiveness must be firmly founded in the record. Bone, 11 S.W.3d at
835. If Applicant fails to satisfy either prong of the test, the court does not need to
consider the remaining prong. Strickland, 466 U.S. at 687.
Texas courts adhere to this United States Supreme Court's two pronged
Strickland test to determine whether counsel's representation was inadequate so as
to violate a defendant's Sixth Amendment right to counsel. Hernandez v. State, 726
S.W.2d 53, 55 (Tex. Crim. App. 1986). The Defendant must first show that
counsel's performance was deficient, i.e., that his assistance fell below an objective
standard of reasonableness, {see Sneed v. State, 964 S.W.2d 764, 766 (Tex. App.
Texarkana 1998, no pet.); {see also, Ex Parte Menchaca, 854 S.W.2d 128, 131
(Tex. Crim. App. 1993)). Second, assuming Appellant has demonstrated deficient
assistance, it is necessary to affirmatively prove prejudice. Strickland v.
Washington, 466 U.S. 689, 693 (1984).
In other words, Appellant must show a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Hernandez, 726 S.W.2d at 55. This two pronged test is
the benchmark for judging whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a reliable and just result. Strickland, 466 U.S. at 686.
Ordinarily, if counsel's errors were so obviously unprofessional, as in the
present case, then there should be no need for an explanation of his subjective
intent. In such situations, Appellant is able to bring a direct appeal and obtain a
judgment by the Appellate Court. See Pinkston v. State, 744 S.W.2d 329, 333
(Tex. App. ~ Houston [1st Dist.] 1988, no pet.). In the instant case, though, to
Appellant's disappointment, the Honorable Trial Judge allowed Appellant's
Motion for New Trial to be overruled by operation of law, he at least allowed an
extremely detailed record at the hearing thereon to be developed.
Judicial scrutiny of counsel's performance must be highly deferential, and
the Court will indulge a strong presumption that counsel was effective. Id. at 689;
8Indeed, the hearing on the Motionfor New Trial lasted about as long as or longer than the entire
guilt/innocence phase of the trial.
19
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The Court will
presume counsel's actions were reasonably professional and motivated by sound
trial strategy. Strickland, 466 U.S. at 689 (stating that a fair assessment of attorney
performance requires every effort to eliminate the distorting effect of hindsight and
to evaluate the conduct from counsel's perspective at the time of trial).
Applicant must overcome this presumption by illustrating why counsel did
what he did. Belcher v. State, 93 S.W.2d 593, 595 (Tex. App.—Houston [14th
Dist.] 2002, pet. dism'd). When evaluating an allegation of ineffective assistance,
the Appellate Court looks to the totality of the representation and the particular
circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). The fact that another attorney may have acted in a different manner
will not be sufficient to prove ineffective assistance, and an error in trial strategy
will be considered inadequate only if counsel's actions lack any plausible basis.
Dickerson v. State, 87 S.W.3d 623, 637 (Tex. App.—San Antonio 2002, no pet.).
The duty to investigate cannot be delegated to an investigator or to the
prosecutor. Flores v. State, 576 S.W.2d 632, 634 (Tex. Crim. App. 1979); Bulter
v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986). Counsel must make an
independent investigation into the facts. See Pinkston v. State, 744 S.W.2d 329,
332 (Tex. App.—Houston [1st Dist.] 1988) (attorney has a duty to make an
independent investigation of his client's case; counsel is ineffective if the
consequence is that a viable defense available to the client is not advanced).
20
The next inquiry is prejudice. To determine prejudice, for guidance courts
look again to Strickland, where the United States Supreme Court made it clear that
although the burden upon the Appellant is high, a criminal Defendant "need not
show that counsel's deficient conduct more likely than not altered the outcome in
the case." Strickland, 455 U.S. at 693, 104 S. Ct. at 2068. In fact, "in every case
the court should be concerned with whether, despite the strong presumption of
reliability [of the trial's outcome], the result of the particular proceeding is
unreliable because of a breakdown in the adversarial process that our system
counts on to produce just results." Id. at 696.
An assertion of ineffective assistance of counsel will be sustained only if the
record affirmatively supports such a claim. Ex parte Ewing, 570 S.W.2d at 943.
Moreover, matters of trial strategy will be reviewed only if an attorney's actions are
without a plausible basis. Ex parte Burns, 601 S.W.2d 370 (Tex. Crim. App.
1980). Appellant urges that near complete inaction can never be a sound trial
strategy.
A presumption of prejudice applies where, as here, counsel's actions are the
equivalent of no legal assistance at all.
In Javor v. United States, 724 F.2d 831 (9th Cir. 1994), the court held:
Today we conclude that when an attorney for a criminal defendant
sleeps through a substantial portion of the trial, such conduct is
inherently prejudicial and thus no separate showing of prejudice is
necessary [citations omitted]. Javor's Sixth Amendment right to
counsel was violated not because of specific legal errors or omissions
21
indicating incompetence, but because he had no legal assistance
during a substantial portion of his trial....
Prejudice is inherent in this case because unconscious or sleeping
counsel is equivalent to no counsel at all. The mere physical presence
of an attorney does not fulfill Sixth Amendment entitlement to the
assistance of counsel... [A]n attorney's absence prejudices a defendant
more by what was not done than by what was done.
Id. at 833 (emphasis added).
Appellant submits that having an unqualified attorney who committed the
actions and inactions fully delineated above in 20 numbered paragraphs in the
Argument section I. of this brief, was the "equivalent to no counsel at all."
Appellant's unqualified attorney's silence and inaction before and during the trial
prejudiced Appellant more "by what was not done than by what was done".
In Tippins v. Walker, 889 F. Supp. 91 (S.D.N.Y. 1995), the Court granted
the writ of habeas corpus when counsel slept through much of the trial:
Accordingly, as the Second Circuit has accepted Javor's holding that
sleeping counsel is tantamount to no counsel at all, this Court holds
that Tirelli's sleeping constituted a per se violation of petitioner's
Sixth Amendment right to effective assistance of counsel. The Court
rejects the law espoused by the [lower state courts] that petitioner
must demonstrate that he was prejudiced by the fact of his counsel's
slumber.
Id. at 94.
Likewise, under the unique facts of this case, Appellant should not have to
demonstrate specific prejudice (though, in fact, he has done so). Rather, prejudice
22
must be presumed by counsel's near complete inaction and Appellant is entitled to
a new trial.
Other cases in which courts have held counsel to be per se ineffective
are Hays v. State of Alabama, 85 F.3d 1492 (11th Cir. 1996) (prejudice presumed
when counsel absent, prevented from assisting during critical state, or if
counsel failed to subject prosecution's case to meaningful adversarial
testing); Golden v. Newsome, 755 F.2d 1478 (11th Cir. 1985) (absence of counsel is
presumptively prejudicial); Green v. Am, 809 F.2d 1257, 1263 (6th Cir.
\9Sl){vacated on other grounds, Am v. Green (1987) 484 U.S. 806) (temporary
absence of counsel during critical stage is prejudicial per se and not subject to
harmless error inquiry); Chadwick v. Green, 740 F.2d 897 (1 l^Cir.
1984) (circumstances which would warrant a presumption of prejudice from
counsel's ineffectiveness are those in which adversary process itself is rendered
presumptively unreliable by the circumstances).
In Strickland v. Washington, 466 U.S. 668, 696 (1984) the United States
Supreme Court concluded its analysis of ineffective assistance of counsel claims
with this caveat:
Although those [foregoing] principles should guide the process of
decision, the ultimate focus of inquiry must be on the fundamental
fairness of the proceeding whose result is being challenged. In every
case the court should be concerned with whether, despite the strong
presumption of reliability, the result of the particular proceeding is
23
unreliable because of a breakdown in the adversarial process that our
system counts on to produce just results.
Strickland, 466 U.S. 696 (emphasis added).
Here, there was just such a breakdown in the adversarial process, rendering
the result of Appellant's trial unreliable. It is difficult to imagine a more egregious
case of incompetent counsel than the case here.
B. WHETHER APPELLANT'S STATORY RIGHT PER THE TEXAS
FAIR DEFENSE ACT TO REPRESENTATION BY A COMPETENT
AND QUALIFIED ATTORNEY WAS VIOLATED?
The Texas Fair Defense Act (the "FDA"), passed in 2001, for the first time,
required all criminal courts in Texas to adopt formal procedures for providing
appointed lawyers to indigent defendants.
These procedures must be consistent in all courts of the same jurisdiction
within any particular county (e.g., all district (felony) courts in a county
must adopt consistent procedures), and counties may adopt unified
procedures that apply to all criminal courts (felony and misdemeanor) in a
county. ...
Although the FDA gives local officials significant flexibility in establishing
their indigent defense plans, every plan is required to meet minimum
statewide standards and/or specify local procedures in the following areas:
• Prompt appointment of defense counsel
• Methods for selecting defense lawyers eligible to receive court
appointments, including qualification standards
• Methods for selecting defense lawyers for appointment in specific cases
• Methods for determining defendant eligibility for appointment of counsel
(indigence standards)
• Fee schedules for payment of appointed defense lawyers
• Compensation procedures for experts and investigators in cases involving
indigent defendants
24
The FDA also created a new state indigent defense commission, the Task
Force on Indigent Defense, to oversee the implementation of the FDA and
administer a new state program for awarding indigent defense grants to
counties.9
The Texas Fair Defense Act modified several statutes, most notable of
which was the Texas Code of Criminal Procedure. Texas Code of Criminal
Procedure, Art. 26.04 provides, in pertinent part:
(a) The judges of the county courts, statutory county courts, and district
courts trying criminal cases in each county, by local rule, shall adopt and
publish written countywide procedures for timely and fairly appointing
counsel for an indigent defendant in the county arrested for, charged
with, or taking an appeal from a conviction of a misdemeanor punishable
by confinement or a felony. The procedures must be consistent with this
article and Articles 1.051. 15.17, 26.05, and 26.052. A court shall appoint
an attorney from a public appointment list using a system of rotation,
unless the court appoints an attorney under Subsection (f), (f-1), (h), or
(i). The court shall appoint attorneys from among the next five names on
the appointment list in the order in which the attorneys' names appear on
the list, unless the court makes a finding of good cause on the record for
appointing an attorney out of order. An attorney who is not appointed in
the order in which the attorney's name appears on the list shall remain
next in order on the list.
(b) Procedures adopted under Subsection (a) shall:
(1) authorize only the judges of the county courts, statutory county
courts, and district courts trying criminal cases in the county, or the
judges' designee, to appoint counsel for indigent defendants in the
county;
(2) apply to each appointment of counsel made by a judge or the judges'
designee in the county;
(3) ensure that each indigent defendant in the county who is charged
with a misdemeanor punishable by confinement or with a felony and who
9"Texas Fair Defense Project." Texas Fair Defense Project. Texas Fair Defense Project, n.d. Web. 13 Oct
2013.
25
appears in court without counsel has an opportunity to confer with
appointed counsel before the commencement ofjudicialproceedings;
(4) require appointments for defendants in capital cases in which the
death penalty is sought to comply with any applicable requirements
under Articles 11.071 and 26.052:
(5) ensure that each attorney appointedfrom a public appointment list
to represent an indigent defendant perform the attorney's duty owed to
the defendant in accordance with the adopted procedures, the
requirements of this code, and applicable rules of ethics; and
(6) ensure that appointments are allocated among qualified attorneys in
a manner that is fair, neutral, and nondiscriminatory.
(c) Whenever a court or the courts' designee authorized under Subsection (b)
to appoint counsel for indigent defendants in the county determines for
purposes of a criminal proceeding that a defendant charged with or
appealing a conviction of a felony or a misdemeanor punishable by
confinement is indigent or that the interests of justice require representation
of a defendant in the proceeding, the court or the courts' designee shall
appoint one or more practicing attorneys to represent the defendant in
accordance with this subsection and the procedures adopted under
Subsection (a). If the court or the courts' designee determines that the
defendant does not speak and understand the English language or that the
defendant is deaf, the court or the courts' designee shall make an effort to
appoint an attorney who is capable of communicating in a language
understood by the defendant.
(d) A public appointment list from which an attorney is appointed as
required by Subsection (a) shall contain the names of qualified attorneys,
each of whom:
(1) applies to be included on the list;
(2) meets the objective qualifications specified by the judges under
Subsection (e);
(3) meets any applicable qualifications specified by the Texas
Indigent Defense Commission; and
(4) is approved by a majority of the judges who established the
appointment list under Subsection (e).
(e) In a county in which a court is required under Subsection (a) to appoint
an attorney from a public appointment list:
(1) the judges of the county courts and statutory county courts trying
misdemeanor cases in the county, by formal action:
(A) shall:
26
(i) establish a public appointment list of attorneys
qualified to provide representation in the county in
misdemeanor cases punishable by confinement; and
(ii) specify the objective qualifications necessary for an
attorney to be included on the list; and
(B) may establish, if determined by the judges to be
appropriate, more than one appointment list graduated
according to the degree of seriousness of the offense, the
attorneys' qualifications, and whether representation will be
provided in trial court proceedings, appellate proceedings, or
both; and
(2) the judges ofthe district courts trying felony cases in the county,
byformal action:
(A) shall:
(i) establish a public appointment list of attorneys
qualified to provide representation in felony cases in the
county; and
(ii) specify the objective qualifications necessary for an
attorney to be included on the list, and
(B) may establish, if determined by the judges to be
appropriate, more than one appointment list graduated
according to the degree of seriousness of the offense, the
attorneys' qualifications, and whether representation will be
provided in trial court proceedings, appellate proceedings, or
both.10
Appellant is mindful that, "[u]nder most circumstances, the record on direct
appeal will not be sufficient to show that counsel's representation was so deficient
and so lacking in tactical or strategic decision-making as to overcome the strong
presumption that counsel's conduct was reasonable and professional." Bone v.
State, 11 S.W.3d 828, 833 (Tex. Crim. App. 2002).
10 Emphasis in Article 26.04 was added by counsel for illustrative purposes.
27
However, in this case, the hearing on the Motion for New Trial that took
place on February 1, 2013 actually took longer than the entire Guilt/Innocence
phase of the trial". Furthermore, Appellant contends that his rights under the
Texas Fair Defense Act were violated, an argument that was not advanced or
considered in Bone.
Appellant's counsel has found a few reported cases that cite the Texas Fair
Defense Act tangentially, but none where a complaint was based on a pellucidly
clear, incontrovertible, flagrant violation of the FDA as this case presents.
Appellant urges this Court to hold that, in enacting the FDA, the Texas legislature
created an objective standard for qualification of and appointment of counsel for
indigent defendants.
Historically, cases analyzed under Strickland have historically been done on
a case by case basis.
In Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. - 1997), the Court
stated, "Except for certain federal constitutional errors labeled 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."
11 The length of time allowed for the hearing on the Motionfor New Trial on February 1, 2013 is
a credit to the patience of and thoroughness of the visiting Judge, the Hon. Dan Beck.
28
The result of this analytical approach has been to create an almost
impossible hurdle for Appellants to overcome when complaining about grossly
deficient performance by court appointed counsel unless it is what the Supreme
Court labels "structural." Moreover, many Appellants could meet Strickland's first
prong - that is that counsel's performance was deficient, i.e., that his assistance fell
below an objective standard of reasonableness. But Strickland's second prong -
that is there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different is virtually an impossible
burden to meet. Even the qualification that "A reasonable probability is a
probability sufficient to undermine confidence in the outcome" provides little help
since whose confidence must be undermined is not defined and is thus also
subjective. While the first prong speaks of objective standards, the second prong
language is inherently subjective, ephemeral and nebulous. One can never truly
know what may have been.
Appellant urges this Court to hold either that by enacting the FDA, the
legislature has eliminated the need to meet the second prong of Strickland when
court appointed counsel is by judicial pronouncement deemed unqualified, or that
the enactment of the FDA necessarily made appointment of an unqualified attorney
to represent an indigent defendant a structural defect which eliminates the harm
analysis that would otherwise be required. In other words, appointment of an
29
unqualified attorney should be considered fundamental error under the Texas Fair
Defense Act.
In Cantu v. State, 930 S.W.2d 594 (Tex.Cr.App.1996), the Court of Criminal
Appeals reversed this honorable Court when it addressed the issue of whether a
lawyer's suspension for failing to respond to demands from the State Bar
Grievance Committee for information deprived the defendant of his Sixth
Amendment right to effective assistance of counsel.
The Court in Cantu held that, as matters of first impression: (1) a never been
licensed layman can never be considered "counsel" under Sixth Amendment and
representation by such person will always constitute a denial of counsel; (2) a
suspended or disciplined attorney is incompetent as a matter of law if reasons for
the discipline imposed reflect so poorly upon attorney's competence that it may
reasonably be inferred that attorney was incompetent to represent defendant; and
(3) the defendant's attorney who was suspended for failing to respond to demands
from State Bar Grievance Committee for information was not incompetent as a
matter of law and accordingly, defendant did not establish a complete denial of his
right to counsel.
Appellant urges this Court that his representation by a court appointed
attorney who had been deemed unqualified to accept felony appointments is
virtually identical to the second of three categories defined above. Just as it may
be inferred that an attorney disciplined for incompetence was incompetent to
30
represent a particular defendant, it may and should be inferred that an attorney
found to be unqualified to accept felony appointments for indigent defendants
under the FDA was incompetent and unqualified to represent this Appellant.
Cantu contains an interesting and lengthy discussion of why a per se rule
should exist when a defendant is represented by a non-lawyer even though that was
not the precise issue before the Court. The Court, in addressing judicial reticence
of adoption ofper se rules, observed:
While the competence rationale can support a case-by-case determination of
incompetence as a matter of law, we do not believe that the rationale can
support a per se rule that suspended or disbarred counsel constitutes an
automatic Sixth Amendment violation. The Supreme Court has explained
that per se rules should apply only when they will usually reach the correct
result as an empirical matter:
[Per se rules are] designed to avoid the costs of excessive inquiry
where a per se rule will achieve the correct result in almost all cases.
As we explained in a different context: "Per se rules ... require the
Court to make broad generalizations.... Cases that do not fit the
generalization may arise, but a per se rule reflects the judgment that
such cases are not sufficiently common or important to justify the
time and expense necessary to identify them." [Citation omitted]. Per
se rules should not be applied, however, in situations where the
generalization is incorrect as an empirical matter; the justification for
a conclusive presumption disappears when application of the
presumption will not reach the correct result most of the time.
Coleman v. Thompson, 501 U.S. 722, 737, 111 S.Ct. 2546, 2558, 115
L.Ed.2d 640 (1991). See also Bellamy, 974 F.2d at 308. Bond, 1 F.3d at 636.
Similar considerations underlie the use of prophylactic rules such as those
announced in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694(1966):
Although recognizing that the Miranda rules would result in the
exclusion of some voluntary and reliable statements, the Court
31
imposed these "prophylactic standards" on the States [citation
omitted] to safeguard the Fifth Amendment privilege against self-
incrimination.
Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 1180, 108 L.Ed.2d
293 (1990).
Under the competence rationale, a per se rule is appropriate for the never-
been-licensed layman because we can infer that the rule reaches the correct
result most of the time. Persons who have not passed the threshold
requirements for membership in the bar cannot be expected to provide
competent representation, and it is surely true that most laymen could not in
fact do so. While some laymen may in fact have the requisite knowledge and
skill, the chance that such persons may commit significant errors is great
enough that the courts should not risk the possibility that a layman might
commit prejudicial errors that would escape an appellate court's notice under
a traditional Strickland analysis. A per se rule against never-been-licensed
laymen is essential to safeguarding the Sixth Amendment right to the
effective assistance of counsel.
Cantu v. State, 930 S.W.2d 594, 600-601 (Tex. Crim. App. - 1996).
Holding that the Texas Fair Defense Act requires the adoption of a per se
rule that appointment of counsel in felony case found to be unqualified for such an
appointment constitutes a per se deprivation of effective assistance of counsel
would result in a rule that reaches the correct result not most of the time, but all of
the time.
Consider this: if an attorney who has been deemed qualified by the local
District Judges under the FDA provides marginal or substandard representation to
a defendant, the prospective appellant's complaint for ineffective assistance would
most assuredly have to be made under Strickland v. Washington. It would make no
sense for him to try and argue that the qualified attorney should not have been
32
deemed qualified when the more efficient argument would be to attack his or her
performance at trial under a Strickland analysis.
Appellant's representation by an attorney unqualified under the Texas Fair
Defense Act was also not the result of any knowingly and intelligently made
10
decision on his part. " In the first place, Appellant speaks little English. In the
second place, there is no showing that Appellant knew what being qualified to
accept felony appointments meant. See RR MNT p. 139 where Thomas Reed
acknowledged that in the April 25, 2012 hearing, he could hear Jesse Lopez
struggling to understand what Judge Gore was saying.
Arguing by analogy, the Court in Manley v. State, 23 S.W.3d 172, 173-74
(Tex. App. Waco — 2000), when discussing an accused's right to self-
representation observed:
The Sixth Amendment to the United States Constitution and Article 1,
Section 10 of the Texas Constitution provide that a defendant in a criminal
trial has the right to assistance of counsel. U.S. Const. Amend. VI; Tex.
Const. Art. I, §10. However, this right to counsel may be waived, and the
defendant may choose to represent himself at trial. Faretta v. California,
411 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975). Although
the right to self-representation is absolute, a waiver of the right to counsel
will not be "lightly inferred," and the courts will indulge every reasonable
12 At the April 25, 2012 hearing, Associate Judge Glynis Gore, after recognizing that Appellant
needed a translator, told him in English that Mr. Reed was not on the list of attorneys qualified to
accept appointments for felony cases, but that he could agree to keep Mr. Reed as his attorney if
he chose. The Appellant, in the recording of the April 25, 2012 hearing which was admitted into
evidence as Exhibit A by the State on February 1, 2013, can be heard to say, "'Es, better." (for
illustrative purposes, counsel is borrowing vernacular utilized by Lupe Tortilla, a restaurant
chain popular in the mid to southeast parts of Texas). For the convenience of the Court, the
uncertified transcript of that hearing is attached as Appendix A. See RR MNT pp. 131-138 for
the Court Reporter's transcription of the audio recording of the April 25, 2012 hearing.
33
presumption against the validity of such a waiver. George v. State, 9 S.W.3d
234, 236 (Tex.App.—Texarkana 1999, no pet.) (citing Johnson v. Zerbst,
304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and Jordan
v. State, 571 S.W.2d 883, 884 (Tex.Crim.App.1978)).
How does a court decide whether a valid waiver of counsel exists? Faretta
requires that (1) the appellant make a "knowing and intelligent" waiver; and
(2) the appellant must be made aware of the "dangers and disadvantages of
self-representation." Id. (citing Tex. Code Crim. Proc. Ann. art. 1.051
(Vernon Supp.1999)); Faretta, 411 U.S. at 835, 95 S.Ct. at 2541. To decide
whether a defendant's waiver is knowing and intelligent, the court must
make an inquiry, evidenced by the record, which shows that the defendant
has sufficient intelligence to demonstrate a capacity to waive his right to
counsel and the ability to appreciate the practical disadvantage he will
confront in representing himself. George, 9 S.W.3d at 237 (citing Archie v.
State, 799 S.W.2d 340, 344 (Tex.App.—Houston [14th Dist.] 1990), affd,
816 S.W.2d 424 (Tex.Crim.App.1991)). The court must determine not only
that the defendant wishes to waive his right to counsel, but that he
understands the consequences of such waiver. Id.
Likewise, there was no intelligent waiver of Appellant's rights under the
Texas Fair Defense Act in this case.
Further, as a matter of anticipatory rebuttal, Appellant addresses the
possibility that the State may argue that he waived his complaint that he was not
represented by a qualified attorney in violation of his rights under the Texas Fair
Defense Act. In the first place, such a contention would be disingenuous. The
Appellant speaks little English and was represented by an attorney who does not
speak Spanish. He was also shackled to his court appointed attorney, Thomas
Reed, when Associate Judge Glynis Gore, on November 30, 2013, refused to allow
34
his December 3, 2012 jury trial setting be continued13 so that Appellant could
proceed with an attorney retained by his family.
Moreover, the Appellant asserted his complaint in detail in his Motion for
New Trial and hearing thereon, which was the first logical opportunity for him to
do so. Arguing by analogy, in construing the timeliness of an Appellant's
complaint about a breached plea agreement which was first raised in a motion for
new trail, the Court of Criminal Appeals, in Bitterman v. State, 180 S.W.3d 139,
142-43 (Tex. Crim. App. - 2005) observed:
The State also relies on these cases in its brief, citing them for the
proposition that Appellant should have objected at a time when the trial
court had an opportunity to correct the error. In addition, the State points to
Mendez v. State to support its argument that a defendant must make a timely
objection or he fails to preserve error. However, reliance on this case is
misplaced for two reasons. First, the facts in Mendez involved a defendant,
after a trial by jury and sentencing, who claimed that the trial court should
have sua sponte withdrawn the guilty plea he entered due to new testimony
which raised an issue as to his guilt. This is distinguishable from the case at
hand, which involves not the withdrawal of a plea made by the defendant at
trial, but the withdrawal of a plea agreement after this agreement was
breached by the State.
Secondly, even if this Court were to find Mendez persuasive in this case, the
defendant in Mendez did not raise the issue until his appeal to the court of
appeals. In this case, it is clear from the record that Appellant raised the
issue for the first time at the trial level, at the hearing on the motion for a
new trial. This was the first time that the issue could have been cured, and
thus the first time that it made sense to raise the issue. Even if the Appellant
had objected at the time of the breach of the plea agreement, the error could
not have been cured by the trial judge at that time because the prosecutor's
13 The Defendant's Motion for Continuance that Associate Judge Gore denied on November 30,
2012 was his first and only Motion for Continuance. The indictment was filed against the
Defendant on March 22, 2012, eight months and eight days previously. Defendant's case could
not be considered an old case by any reasonable stretch of the imagination.
35
recommendation was already before the judge to consider. Objecting at that
point would be similar to asking the judge to forget everything the
prosecutor had just told him and make the sentencing decision based only on
the testimony of the defense. There was no attempt at an "end-run" around
the trial judge straight to the court of appeals. Raising the objection for the
first time at a motion for a new trial gave the trial judge notice of the breach,
and gave him an opportunity to correct the error by granting Appellant's
motion for a new trial. Neither the court of appeals nor the State cite any
caselaw requiring a defendant who has pled guilty as part of an agreement
with the State to object at the moment of the breach rather than at a motion
for a new trial. Rather, this Court has simply held, as have a number of
courts of appeals, that in this same fact scenario, the defendant is entitled
either to specific performance or to withdraw his plea if the State has
breached a plea agreement. The Appellant in this case chose to request a
new trial in order to compel specific performance of the agreement into
which he and the State entered.
In light of all of the foregoing, Appellant urges this Honorable Court to
reverse his conviction and remand the case for a new trial.
It has been uniformly recognized that a layman masquerading as an
attorney—that is, one who has never been a licensed attorney in any jurisdiction—
can never be considered "counsel" under the Sixth Amendment regardless of the
skill exercised by the layman. Cantu v. State, 930 S.W.2d 594, 596 (Tex. Crim.
App. 1996).
The Courts acknowledge that representation by one not licensed to practice
law is the same as no representation at all. Appellant urges this Court to hold that
representation by even a licensed attorney who failed to meet the objective
standards established to qualify one to accept court appointments in felony cases
36
under the Texas Fair Defense Act is functionally equivalent to no representation
under either the Sixth Amendment to the United States Constitution or under the
Texas Fair Defense Act. Indeed, Appellant was represented by a lawyer who was
twice deemed to be unqualified to receive felony appointments by Brazos County's
District Judges.
VIII. CONCLUSION
Issue No. 1: The Appellant's 6th Amendment right to effective assistance of
counsel and 14th Amendment right to due process were violated due to the inaction
of the attorney appointed to represent him. Appellant's attorney's representation
fell below an objective standard of reasonableness under prevailing professional
norms and the client was prejudiced by this unreasonable conduct, which was set
forth in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by the Texas
Court of Criminal Appeals of Texas in Hernandez v. State, 116 S.W.2d 53 (Tex.
Crim. App. 1986).
Issue No. 2: Appellant's right to representation by a qualified attorney under
the Texas Fair Defense Act was violated and constitutes reversible error.
This Court should REVERSE Appellant's conviction and grant him a
new trial.
37
IX. PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays this honorable
Court reverse and remand this case for a new trial, and to enter any other relief
appropriate under the facts and the law.
Respectfully submitted,
Richard W.B, "Rick" Datfis, P.C.
By: RiclliJavis
State Bar No. 05539100
504 E. 27th Street.
Bryan, Texas 77803
(979) 779-4357
(888) 435-4080 - facsimile
Attorney for Appellant Jesse Tirado Lopez
CERTIFICATE OF SERVICE
I, Rick Davis, counsel for Appellant, do hereby certify that a true and correct
copy of the foregoing document was hand delivered to counsel for the State, Doug
Howell and Jeff Garon, Assistant District Attorneys, Brazos County, Texas at 300
E. 26th Street, Suite 310, Bryan, Texas, 77803, on this the ^?<"day of October,
2013.
Rick Davis
State Bar No. 05539100
38
CERTIFICATE OF COMPLIANCE PER T.R.A.P. 9.4(i)(3)
Word Count -
Statistics:
Pages: 38
Words: 9,751
Paragraphs: 199
Lines: 906
Includes textboxes, footnotes, and endnotes
I certify that the above word count is true and correct to the best of my knowledge.
RickD4vis~ Lopez, Jesse Tirado
Combined Opinion