John Kirby v. State

ACCEPTED
13-14-00692-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
3/17/2015 3:33:10 PM
DORIAN RAMIREZ
CLERK
CAUSE NO. 13-14-00692-CR

IN THE COURT OF APPEALS
FILED IN
FOR THE THIRTEENTH JUDICIAL DISTRICT OF
13th COURTTEXAS
OF APPEALS
CORPUS
CORPUS CHRISTI, TEXAS CHRISTI/EDINBURG, TEXAS
3/17/2015 3:33:10 PM
DORIAN E. RAMIREZ
Clerk

JOHN KIRBY
Appellant

V.

THE STATE OF TEXAS
Appellee

APPEAL FROM THE 319' JUDICIAL DISTRICT OF NUECES COUNTY,
TEXAS, IN TRIAL CAUSE NO.. 13-CR-1711-G

APPELLANT'S BRIEF

TRAVIS BERRY

Texas Bar No. 24059194
P.O. Box 6333
Corpus Christi, Texas 78466
Telephone: (361) 673-5611
Facsimile: (361) 442-2562
travisberrylawgmail.com

ATTORNEY FOR APPELLANT

ORAL ARGUMENT IS REQUESTED
 IDENTITY OF INTERESTED PARTIES

Pursuant to Texas Rule of Appellate Procedure 3 8. 1(a), Appellant lists the
following persons who have an interest, in the appeal:

JUDGES: Hon.- David Stith
31 9"" District Court
901 Leopard
Corpus Christi, Texas 78401

PARTIES: COUNSEL FOR APPELLANT:

John Kirby - Appellant J. Esequiel'Zeke' Ramos Jr.
TDC#: 01968206 Texas Bar No. 16508030
Garza East Unit 7213 Lindenwood Dr.
4304 HWY. 202 Corpus Christi, TX 78414
Beeville, Texas 78102
Steven Giovannini
Texas Bar No. 24002143
P.O. Box 81312
Corpus Christi, TX 78468
Telephone: 361-510-5981

Travis Berry (Appeal)
Texas Bar No. 24059194
P.O. Box 6333
Corpus Christi, TX 78466-6333
Telephone: (361) 673-5611
Facsimile: (361) 442-2562

The State of Texas - Appellee COUNSEL FOR THE STATE:

Mark Skurka Kelly Palmarozzi
Nueces County District Attorney Assistant District Attorney
Texas Bar No. 18475570 Texas Bar No. 24049416
901 Leopard - Rm. 206
Corpus Christi ., Texas 78401
Telephone: (361) 888-0410 111.
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................ii.

TABLE OF CONTENTS ...........................................iii.

INDEX OF AUTHORITIES ..........................................iv.

STATEMENT OF THE CASE .......................................vi.

ISSUES PRESENTED ............................................vii.

ISSUE NO. 1: Defense counsel rendered ineffective assistance when (1)
verbally proffering to the trial court, (2) proffering in
Appellant's written guilty plea, and (3) advising
Appellant, that probation was an available punishment
for a Habitual Felony Offense under Texas Penal Code
§ 12.42(d).

ISSUE NO. 2: Texas law which allows an attorney to also act as a
defendant's bondsman is an impermissible conflict of
interest.

STATEMENT OF FACTS ...........................................1

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

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

PRAYER FOR RELIEF ..... .......................................23

CERTIFICATE OF SERVICE . * 0 0 0 a 0 0 0 0 a 0 0 0 0 & * a 0 a a a 0 0 0 9 0 a * 0 0 9 0 0 0 9 0 0 0 24

CERTIFICATE OF COMPLIANCE . a 0 0 0 0 0 0 0 0 0 0 0 0 *.o a 0 0 0 0 * 0 a a 0 a 0 0 0 0 0 0 0 0 25

APPENDIX ........................................................26

111.
 INDEX OF AUTHORITIES

CASES PAGE

Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) . 14915

Cardenas v. State, 960 S.W.2d 941 (Tex. App. - Texarkana 1998) . 15 9 16

Exparte Granviel, 561 S.W.2d 503 (Tex. Crim. App.1978) . 17

Exparte Lo, 424 S-W-3d 10 (Tex. Crim. App. 2013) . 17

Exparte Morse, 591 S.W.2d 904 (Tex. Crim. App. 1980) . 9

Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005)..............9, 14

Hernandez v. S 726 S.W.2d 53 (Tex. Crim. App 1 999) .............14, 15

Hill v. Lockhart, 474 U.S. 52 (1985) ........................... 0 0 0 0 8, 9, 16

Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998).................10

Lawrence v. State, 240 S.W.3d 912 (Tex. Crim. App. 2007).................17

Mitchell v. State,, 68 S.W.3d 640 (Tex. Crim. App.2002) ....... 60000600600*15

Roberts v. State,, 220 S.W.3d 521 (Tex. Crim. App. 2007) ...................9

Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002)..................17

Russell v. State, 711 S.W.2d 114 (Tex. App.— Houston [14th.] 1986, pet. ref d) . 15

Strickland v. Washington, 466 U.S. 668 (1984).........................8, 14

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ................8, 9

iv.
STATUTES AND RULES PAGE

Texas Occupations Code - §1704.163 . 79 17, 23

Texas Penal Code § 12.42(d).............................vi, viii, 7, 8 9 16

Texas Rule of Appellate Procedure 21.2 ............................ 0 0 0 a 10

U.S. CONST. amend. VI. .................... ...................8,22,23

ADDITIONAL MATERIALS

American Bar Association's Criminal Justice Section -
Standards of defense attorney conduct ...................
....... 12, 13, 19-21

American Bar Association Formal Opinion 432...........................21

Dayla S. Pepi and Donna Bloom, entitled "Take the Money or Run:
the Risky Business of Acting as Both Your Client's Lawyer
And Bail Bondsman." 37 St. Mary's L. J. 933 (2006) 20

V.
TO THIS HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

Appellant, John Kirby, was accused in cause number 13 -CR- 1711 -G by a

one count indictment, of driving while intoxicated (DWI) on May 18, 2013.1 This

DWI charge was enhanced under Texas Penal Code § 12.42(d) to a Habitual

Felony Offender charge carrying a twenty five to ninety-nine year punishment

range. (CR5)2

On November 10, 20 14, Appellant entered a plea of guilty without a plea

bargain and punishment was assessed by the trial court. (CR24) Appellant was

sentenced to thirty (30) years incarceration to be served concurrently with the

thirty (30) year sentence for another Habitual Felony Offender DWI charge in

cause number 14-CR-295 1-G, in the Texas Department of Criminal Justice

Institutional Division. (CR213, RR2 - 39, 40)

Appellant filed his timely notice of appeal on November 17, 2014, to appeal

the conviction and sentence in this case. (CR216)

vi.

1
This case is in conjunction with an additional Habitual Felony Offender DWI charge
under cause number 14-CR-2951-G being appealed under COA#: 13-14-00691-CR wherein the
same punishment (30 years) was assessed by the trial court to run concurrently. (CR213)
2
Citations to the Clerk's Record is CR followed by the page number, and citations to the
reporter's record will list the volume (RR#) followed by the page number within that volume.
 ISSUES PRESENTED

ISSUE NO. 1: Defense counsel rendered ineffective assistance when (1)
verbally proffering to the trial court, (2) proffering in
Appellant's written guilty plea, and (3) advising
Appellant, that probation was an available punishment
for a Habitual Felony Offense. under Texas Penal Code
§ 12.42(d).

ISSUE NO. 2: Texas law which allows an attorney to also act as a
defendant's bondsman is an impermissible conflict of
interest.

viii.
 STATEMENT OF FACTS

On November 10, 2014, pled guilty without a plea bargain to two felony

DWI cases, both which were enhanced to Habitual Felony Offenses producing a

punishment range of twenty five (25) to ninety nine (99) years. (RR2 - 9, 10) The

trial court sentenced Appellant to thirty (30) years on both cases to run

concurrently. (CR152)

These separate DWI cases saw representation by two different attorneys.

Appellant was arrested for DWI on May 18, 2013, in cause number 13-CR-1711-

G. He made bond and retained attorney Steven Giovannini to represent him. While

on bond, Appellant was again arrested for DWI on February 1, 2014, in cause

number 14-CR-295 1 -G. While incarcerated in the Nueces County Jail, attorney

Esequiel "Zeke" Ramos visited Appellant at the jail and bonded him out.

Mr. Ramos is a Corpus Christi attorney that is well known as a "bonding"

attorney, one that will sign you out ofjail for attorney's fees and also handle the

legal representation at court. 3 Mr. Ramos joined in Appellant's representation with

attorney Steven Giovannini when he bonded Appellant out ofjail for a fee. (See

clerk's record in 13-14-00692-CR, page 10) The clerk's record in this case does

3
At the plea hearing, the trial court addressed Appellant's confusion about his
representation by Mr. Ramos after Mr. Ramos acted as his bail bondsman: " you have
counsel with you today, and I assume that's probably because he bonded you out." (RR2 - 8)

1
not contain a motion to substitute from Mr. Ramos or a similar "motion to join

Steven Giovannini's representation" as in the other DWI. Rather, Mr. Ramos only

filed a notice of appearance. (CR2 1)

When Appellant appeared in court to enter his guilty plea, he was very

confused about the merits of the State's case as well as the ramifications of

entering such a plea. (Appendix - Appellant's affidavit) Due to the circumstances

of having two different DWI charges and having hired Steven Giovannini only to

be later represented in court by his bondsman, Appellant was not sure of what was

going on:

THE COURT: All right. If there's anything we go through that you don't
understand, will you let me know?

THE DEFENDANT: What I don't understand, sir, is that I had retained a
lawyer, Mr. Stephen Giovannini, and I paid him his court fees -- I mean, his
fees that he wanted, and he said that -- that the bond fees and the -- and his
payment fees would coincide together and they would, you know, be
together.

THE COURT: Uh-huh.

THE DEFENDANT: You know? And I paid him his fees, and I got the
receipts in my pocket to show it, and he charged me $2600 for it. And for
some reason -- you know, he told me that I hadn't paid him enough fees, but
it was clear to the fact that when we ade the contract in his office that -- that,
like I said, it was going to coincide together, you know.

THE COURT: Okay.

2
 THE DEFENDANT: The bond and his fee. And I'm just not - I'm not
understanding why he dropped me like that and he -- and Mr. Ramos here
was taking my case afterwards. (RR2 - 7 9 8)

The Court was not concerned with Appellant's confusion over his dual

representation, it only asked if Mr. Ramos had "gone over everything" with him

and admonished Appellant of the range of punishment for the charge. (RR2 - 8)

Later in the hearing the trial court inquired whether Appellant understood

everything:

THE COURT: All right. One other thing, Mr. Kirby. In both of these cases
you signed what are called judicial confessions. Do you understand that?
These documents right here. Is that your signature on the back part of it?

THE DEFENDANT: I'm not understanding what maybe I signed.

THE COURT: Did you sign these? This is called a judicial confession and
stipulation of evidence. Do you remember signing that document?

THE DEFENDANT: My name is on there, I guess I did......But I don't --
I'm not sure what it was for, though, you know. Is that for evidence or --

THE COURT: Right. It's basically ajudicial confession. Did you not
understand you were signing a judicial confession?

THE DEFENDANT: No, sir.

THE COURT: Okay. Do you want to take time to talk to your attorney
about it?

THE DEFENDANT: Yes, sir. (RR2 - 16, 17)

3
 Although the trial court sought to remedy Appellant's obvious confusion

about what was happening to him (legal procedure), Appellant maintains on

appeal that - because of the lawyer shuffle he had experienced and a total lack of

communication with Mr. Ramos - he truly did not understand all of the

proceedings that resulted in his thirty year sentence. (Appendix - Appellant's

affidavit)

When admonished by the trial court on Appellant giving up his right to a

jury trial, Appellant states that he cannot intelligently do such as he was without

the requisite information to make that decision:

THE DEFENDANT: Yes, sir, but it's like I haven't had enough, you know,
insight to my case, or my attorneys really haven't gotten with me to see if
there's anything that to have ajury trial, you know. So I don't know if, you
know, like I -- Mr. Giovannini, all he did was ever take my money and he
never did sit down and talk to me about my case or anything, you know.
And I feel like I -- you know, I don't know nothing about my case.

The trial court stated that the case had previously been set for a guilty plea,

its current status was that it was set for a guilty plea, that the court had previously

granted Mr. Ramos a request for continuance and, due to the age of the case, the

trial court was "not giving you any more additional time today" and informed

Appellant he was "waiving your right to trial by jury, waiving your right to remain

silent, enter your plea of guilty, and then I'm going to decide punishment on this

El
case." Appellant admitted to having a drinking problem and made a plea for some

form of treatment such as SAF-PF. (RR2 - 19)

The court asked Appellant whether he signed his plea paperwork freely and

voluntarily. This plea paperwork contained an application for probation signed by

Appellant and entered by Mr. Ramos even though it was not an available option

by law. (CR3 8, also see clerk's record in 13-14-00691-CR, page 35) Both sets of

plea paperwork from Mr. Ramos in each case also list Appellant's offense as a

third degree felony, not the habitual offender charge Appellant was actually

facing. (CR30, also see clerk's record in 13-14-00691-CR, page 27)

After Appellant was finally sworn in, he answered defense counsel that he

understood his charge was a habitual offender case but that he should be given a

chance at re-hab followed by probation. (RR2 - 22) Appellant was steadfast in this

position, one of seeking re-hab and probation in the face of a mandatory 25-99

year Habitual Offense, due to the advise he received from Mr. Ramos. (RR2 - 22;

Appendix - Appellant's affidavit)

In support of Appellant's request for probation, defense counsel then

mentioned a felony conviction for evading arrest from Appellant's past to show

Appellant had previously completed a felony probation. (RR2 - 22, 23) On cross-

examination, the State recounted Appellant's entire criminal history to which

5
Appellant was in agreement with. (RR2 - 24-28)

The defense asked the trial court to "consider something other than a long

sentence" and to grant him probation with treatment even though Appellant faced

a mandatory minimum of twenty five years imprisonment. (RR2 - 35, 36) The

State rebutted this stating that a plea agreement could not be reached and that

Appellant was "not even eligible for it (probation)" (RR2 - 38)

The trial court found Appellant guilty of DWI, found the habitual offender

enhancements to be true, and sentenced Appellant to thirty (30) years in the

institutional division of the Texas Department of Criminal Justice to run

concurrently with the same sentence in cause number 14-CR-295 1-G.
 SUMMARY OF THE ARGUMENT

ISSUE ONE: Appellant was represented by counsel at his guilty plea but this

plea was made without effective representation. Before entering his plea

paperwork and the guilty plea, defense counsel led Appellant to believe that he

could get probation rather than the mandatory 25-99 year punishment. It is clear

from the record that defense counsel was wholly misinformed about the

punishment realities of a habitual offender case under Texas Penal Code § 12.42(d)

as he repeatedly asked the court to probate the sentence. Counsel's impossible

probation requests lends credence to Appellant's claims that counsel did misguide

Appellant before he entered his plea.

ISSUE TWO: Texas Occupations Code - Section 1704.163 - Attorney

Exemption, allows for attorney's to play a dual role ofattorney/bondsman which is

a clear conflict of interest that goes against the rest of the nation's stance on the

subject and goes against the American Bar Association's stance on the subject.

This conflict of interest can easily lead to unethical defense practices and

ineffective assistance as seen in the instant case.

7
 ARGUMENT

ISSUE NO. 1: Defense counsel rendered ineffective assistance when (1)
verbally proffering to the trial court, (2) proffering in
Appellant's written guilty plea, and (3) advising Appellant, that
probation was an available punishment for a Habitual Felony
Offense under Texas Penal Code § 12.42(d).

STANDARD OF REVIEW AND APPLICABLE LAW

A criminal defendant has a Sixth Amendment right to effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); U.S. CONST.

amend. VI.

To determine whether counsel's representation was inadequate so as to

violate a defendant's Sixth Amendment right to counsel, we apply the United

States Supreme Court's two-pronged Strickland test. Thompson v. State, 9 S.W.3 d

808, 812 (Tex. Crim. App. 1999). The Strickland standard applies to a challenge to

a guilty plea based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S.

52 (1985). Under Hill v. Lockhart, where a defendant enters a guilty plea upon

counsel's advice, the voluntariness of the plea depends on whether the advice was

within the range of competence demanded of attorneys in criminal cases. Id. at 52.

Under Strickland, the defendant must show that counsel's advice was

deficient and, but for that advice, there is a reasonable probability that he would

8
have pled not guilty. See Hill at 53. The assessment of whether a defendant

received effective assistance of counsel is made on a case by case basis by looking

to the totality of the representation and the particular circumstances of the case.

Thompson, 9 S.W.3d at 813. Any claim of ineffectiveness must be firmly founded

in the record and the record must affirmatively demonstrate the alleged

ineffectiveness. Id. Appellant bears the burden of proving by a preponderance of

the evidence that counsel was ineffective. Id.

In the case of a silent record, "the challenged conduct must be 'so

outrageous that no competent attorney would have engaged in it.' " Roberts v.

State, 220 S.W.3d 521, 533 (Tex.Crim.App. 2007) (quoting Goodspeed v. State,

187 S.W.3d 390,392 (Tex. Crim.App. 2005)

ISSUE ONE ARGUMENT

Counsel must advise the defendant how the law applies to the facts of the

case to ensure that the guilty plea is knowing and voluntary. Ex parte Morse, 591

S.W.2d 904 (Tex. Crim. App. 1980).

Appellant's guilty plea was involuntary by reason of ineffective assistance

of counsel because his attorney had misinformed him that he was eligible for

probation on a habitual offense. Appellant openly expressed concern with his trial

9
counsel at his plea. Appellant provided the court with his own defacto claims of

ineffective assistance of counsel' and asked the trial court for more time to

determine whether to proceed to trial which was denied. (RR2 - 18)

In the majority of cases, the record on direct appeal is simply undeveloped

and cannot adequately reflect the alleged failings of trial counsel. Jackson v. State,

973 S.W.2d 954, 957 (Tex. Crim. App. 1998). Under Texas Rule of Appellate

Procedure 21.2, a motion for new trial is a prerequisite to presenting a point of

error on appeal only when necessary to adduce facts not in the record. Here, the

record is more than adequate to substantiate Appellant's claim of ineffective

assistance of counsel on direct appeal.

Appellant believed his lawyer when he signed all of his plea paperwork that

probation was a viable option. (CR35, Appendix - Appellant's affidavit) This,

herein, induced Appellant to enter such guilty plea to this habitual offender

charge. In support of this search for a probated sentence, Appellant made certain

admissions of guilt in an effort to garner sympathy for alcoholism treatment. (RR2

- 13, lines 9-20) Once Appellant realized the true nature of the gravity of his own

situation, that he was going to be sentenced to a significant amount of

4
Appellant informed the trial court that his attorney's (1) have not adequately informed
him about his situation, and (2) a determination of whether to go to trial upon the evidence was
never made or communicated to him.

10
incarceration rather than the probation defense counsel caused him to believe was

available, he asked for "more time" or essentially a continuance which was denied.

(RR2 - 18, 19)

Defense counsel did mention the habitual offender status during his direct

examination of Appellant - "Basically, you understand that they're charging you as

a habitual felony offender based on a burglary of a building offense that occurred

in 1996; is that correct?" - counsel simultaneously argued that Appellant should

receive some form of community supervision which should show that counsel was

ignorant of what a "habitual felony offender" charge means and what that offender

must receive as punishment under Texas law.

In addition, counsel's erroneous argument was made after having been

present when the trial court admonished Appellant that the minimum potential

sentence would be an incarceration of at least twenty-five year s5 :

."I'm asking the Court to consider something other than a long sentence.
Apparently with the same history that he has, back in 2006 he got probation
and he completed it successfully. To me that says a lot. He had the same
history, everything the same. These offenses that
at are part of the
enhancement happened almost 30 years ago . .........
.

•1 think sending him to TDC is not the best way to deal with his problems. I
think it's a misuse of the taxpayers' money. I think he needs to be sent
somewhere where he needs to get help for his problems, other than just send

5
RP-2 - 8 5 9

11
 him to TDC on a long sentence.

•1 would request the Court consider sending him to some kind of a re-hab
place, some Safe-P with probation. He's shown in the most recent felony
case that he picked up prior to these two cases that are pending now, that he
could successfully complete probation. I don't know why they didn't
address his issues in that probation. Maybe they weren't brought up, but he's
shown he can actually complete probation. So I would ask the Court to
consider giving him probation by sending him to get some kind of rehab
help for his problem." (RR2 - 35, 36)

The State was quick to respond to the obvious problem with defense

counsel's impossible argument for probation:

"Your Honor, it's a 25 to life case. He's pled true to both of those
enhancements. I think -- and the judgments are there. I believe that the
Court must find that there is enough evidence to find those two
enhancement paragraphs true. I understand that now defense doesn't like
that those two are being brought up from so long ago, but that's what the
law states." (RR2 - 36)

Part VIII of the American Bar Association's Criminal Justice Section

Standards of defense attorney conduct addresses defense counsel's duty at

sentencing. Standard 4-8.1 states that at sentencing 6 :

(a) Defense counsel should, at the earliest possible time, be or become
familiar with all of the sentencing alternatives available to the court and
with community and other facilities which may be of assistance in a plan for
meeting the accused's needs. Defense counsel's preparation should also

http://www.americanbar.org/publications/criminaljustice_section_archive/crimjust_standards_d
func_blk.html#3 .5

12
 include familiarization with......the normal pattern of sentences for the
offense involved ....... The consequences of the various dispositions
available should be explained fully by defense counsel to the accused.

Reading the transcript of Appellant's plea hearing and the plea paperwork

signed by defense counsel (CR35), shows that defense counsel was wholly

uninformed about the consequences of Appellant's plea as it related to

punishment. Defense counsel's performance is woefully short of what the ABA

proscribes in Standard 4 - 8. 1.

During the punishment hearing, clearly Appellant's decision to proceed with

an open plea was based on his hope of receiving community supervision from the

trial court. Appellant insists that he entered the courtroom believing that he had a

chance at probation. (See Exhibit A - Appellant's affidavit) This is corroborated

by his attorney's persistence that the trial court grant a probated sentence in the

face of a mandatory twenty-five to ninety-nine year sentence. Appellant also

persisted in a desire to continue counseling outside the confines of prison. (RR2 -

19,20)

Appellant vehemently asserts that his decision to plead guilty was based

solely on his attorney's advise that they would be asking the court for probation,

both on paper (CR35) and in person (RR2 - 35, 36). The record substantiates

13
Appellant's claim that his decision to plead guilty was based on his attorney's

erroneous advice that the trial court could grant community supervision which was

ineffective assistance on the guilty plea as a matter of law.

Although the trial court attempted to remedy this in its admonishments

before accepting Appellant's guilty plea, those admonishments were given after

Appellant had filled out and filed his plea paperwork where his attorney proffered

an application for probation because he truly believed probation was a viable

option.

Such. advice from his attorney was clearly erroneous, and the reliability of

Appellant's claim of ineffectiveness is substantiated by defense counsel's own

impossible argument for probation. There is no possibility that defense counsel's

handling of this case could have been based on legitimate trial strategy.

Goodspeed at 392. Therefore., Appellant has established that his attorney's

performance fell below an objective standard of reasonableness for criminal

defense in the State of Texas. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052;

Hernandez V. State, 726 S.W.2d 53, 55 (Tex. Crim. App 1999).

We must next consider whether Appellant has demonstrated the record

supports a finding that counsel's deficient performance prejudiced Appellant's

defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Bone v. State, 77 S.W.3d

14
828, 833 (Tex. Crim. App. 2002); Hernandez, 726 S.W.2d at 55. "This means that

the appellant must show a reasonable probability that, but for his counsel's

unprofessional errors, the result of the proceeding would have been different."

Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002); see also Bone at 833.

Appellant believes that the record in this case affirmatively demonstrates

that, but for counsel's errors, the result of the proceeding would have been

different on November 10, 2014. Appellant would not have entered court to give a

plea of guilty to a 25-99 habitual offender case and voluntarily accept such fate

without a trial. See Cardenas v. State, 960 S.W.2d 941, 948 (Tex. App. -

Texarkana 1 998) (the appellate court found harm as a result of deficient

performance).

Although Appellant made certain admissions at his guilty plea (RR2 - 13),

those admissions were made in an effort to bolster the request for probation and

they were given without effective guidance from counsel. The record supports the

contention that the appellant's plea was, in fact, induced by significant

misinformation before the hearing. See Russell v. State, 711 S.W.2d 114, 116

(Tex.App. --Houston [1 4th Dist.] 1986, pet. ref d).

The record also reflects probable misunderstanding of the situation by

defense counsel (CR35, RR2 - 35, 36) and raises the probability that such

15
incorrect information was provided to the defendant in preparation for the plea

proceeding. Cardenas at 947.

Under Hill v. Lockhart, 474 U.S. 52 (1985), where a defendant enters a guilty

plea upon counsel's advice, the voluntariness of the plea depends on whether the

advice was within the range of competence demanded of attorneys in criminal

cases.' Basic competence in practicing criminal defense in Texas is to know that a

habitual felony offender charge under Texas Penal Code § 12.42(d) cannot, by any

means, result in probation.

Had Appellant known this before filling out his plea paperwork just before

his hearing on November 10, 2014, he would not have entered that guilty plea to

which the trial court proceeded upon. Hill at 57. The trial court's admonishments

during the hearing are insufficient to place Appellant where he was before filling

out his plea paperwork under the informed belief he could receive probation.

(Appendix - Appellant's affidavit)

Based on the facts in the case at bar, the appropriate result is to find

Appellant received ineffective assistance of counsel before entering his guilty

7
In Hill, the defendant knew he was pleading to a charge that would lead him to prison,
the erroneous advise in Hill dealt with parole eligibility and when he would be released from that
prison sentence. The Supreme Court declined relief in Hill because the erroneous advice was not
shown to have induced the guilty plea, only misinformed the defendant when he would be
released. The instant case is distinct because the erroneous advice did induce Appellant's guilty
plea and impossible request for probation.

16
plea.

ISSUE N 2 Texas law which allows an attorney to also act as a defendant's

bondsman is an impermissible conflict of interest.

STANDARD OF REVIEW AND APPLICABLE LAW

Challenges to the Constitutionality of a Texas statute are reviewed de novo.

Ex parte Lo, 424 S.W.3 d 10 (Tex.Crim.App. 2013); Lawrence v. State, 240

S.W.3d 912, 915 (Tex.Crim.App. 2007) When the constitutionality of statute is

attacked, we usually begin with the presumption that the statute is valid and that

the legislature has not acted unreasonably or arbitrarily. Rodriguez v. State, 93

S.W.3d 60, 69 (Tex.Crim.App. 2002); Exparte Granviel, 561 S.W.2d 503, 511

(Tex.Crim.App. 1978) The burden normally rests upon the person challenging the

statute to establish its unconstitutionality. Id.

The Texas Occupations Code - Section 1704.163(a) - Attorney Exemption -

allows for an exemption to the Texas licensing of bail bondsmen where the

surety/bondsman is an attorney and is also the attorney of the person subject to the

IDWI I

ISSUE TWO ARGUMENT

Although "attorney bonds" are permitted by a special exemption in Texas, it

17
appears that Texas may be the only state that explicitly allows this practice. The

conflict of interest is clear because where a lawyer is both a client's attorney and

bondsman, there are conflicting goals between what a criminal defense attorney

desires for their client and what a bondsman needs to secure his collateral. During

representation in any criminal matter, an attorney acting dually has polar loyalties.

For example, a lawyer might refrain from informing a client about the

weakness in their case for fear the client will jump bond, causing the attorney to be

out of bond money. This is especially relevant in cases where a defendant is

granted bond but is facing a serious sentence due to the nature of the crime or their

criminal history.

Under Texas law, this lawyer/bondsman is also allowed to summarily get

off the bond and withdraw from the case when certain circumstances arise. A

lawyer could be quick to get off a bond in order to protect their assets where there

is new (possibly confidential) information, that causes the lawyer to believe that

the client may not comply with bond conditions. Also, the lawyer/bondsman may

not inform the defendant that they are getting off the bond leaving them at a bond

revocation without a lawyer to advocate against it, when money they paid was to

assure against this result. In this way, one's lawyer could actually be in control

and become a "jailer" awaiting trial to secure that lawyer's assets. This is the

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antithesis of what the role of a criminal defense lawyer is supposed to be as is

taught throughout American law schools and believed in by the public at large.

Under the Criminal Justice Standards as set by the American Bar

Association, one's defense attorney is to be a zealous advocate and a person that

the defendant can fully confide in rather than being a bondsman who is monitoring

and analyzing a defendant in order to make sure they are complying with bond

conditions. This is contrary to ABA Standards for Defense 4-3.6. See infra.

Texas' allowance of the lawyer/bondsman role also "locks in" a defendant

financially regardless of the effectiveness of representation. When a defendant

gets a bad feeling about the bondsman/lawyer and later decides that they do not

want the lawyer hired to post your bond to also represent them in the case, they are

typically trapped and that is just the way the bondsman/lawyer model of

representation works. It is almost certain that the lawyer who also serves as the

bondsman will tell the client that, if they fire the lawyer, he will go off the their

bond putting the defendant back to square one less fees lost on that lawyer. As

previously explored, this could result in the defendant being arrested for an

insufficient bond before they are able to hire a new lawyer and arrange for a real

bail bondsman to assume their bond.

There is an excellent article on point from two law professors, Dayla S. Pepi

19
and Donna Bloom, entitled "Take the Money or Run: the Risky Business of

Acting as Both Your Client's Lawyer And Bail Bondsman."' This article fully

discusses the practice of attorneys acting as bondsmen, that most states and the

American Bar Association (the "ABA") believe that it is unethical for attorneys to

also act as their clients' bondsmen. For example, at the time of the article, ABA

Formal Opinion 432, ABA's Standards for Criminal Justice 4-3.5, and ethics

opinions and/or laws in Alabama, Alaska, Arizona, Arkansas, Colorado,

Connecticut, Delaware, Florida, Georgia, Iowa, Kansas, Kentucky, Michigan,

Minnesota, New York, North Carolina, Oklahoma, Oregon, South Carolina,

Virginia, West Virginia, and Wisconsin suggested that this practice is illegal

and/or unethical except in limited circumstances.

The ABA outlines its standards for criminal defense attorneys' where

potential conflicts of interest exist. 9 (Standard 4 - 3 .5 Conflicts of Interest) The

following standards in subsections (a) & (j) under ABA. Standard 4-3.5 are not

followed in Texas when the defense attorney is also the bondsman:

(a) Defense counsel should not permit his or her professional judgment or
obligations to be affected by his or her own political, financial, business,

8
37 St. Mary's L. J. 933 (2006)

http://www.americanbar.org/publications/criminaljustice_section_archive/crimjust_standards_d
funcb1k.htm1#3 .5

20
 property, or personal interests.

a) Defense counsel should not act as surety on a bond either for the accused
represented by counsel or for any other accused in the same or a related
case.

In addition, ABA Formal Opinion 432 finds that:

"A lawyer may post, or arrange for the posting of, a bond to secure the
release from custody of a client whom the lawyer represents in the matter
with respect to which the client has been detained, but only in those rare
circumstances in which there is no significant risk that her representation of
the client will be materially limited by her personal interest in recovering
the amount advanced."

Any attorney who has bonded someone out is "materially limited by their

personal interest in recovering the amount advanced." There is a very large gap

between what Texas allows and what the ABA proscribes coupled with what is

followed by most other states. The dangers posed by this practice in Texas are

clearly seen in this case.

Appellant hired one attorney only to be bonded out and represented by

another attorney. He expressed confusion over such practice to the trial court.

(RR2 - 8) Appellant proceeded to court with his bondsman attorney for fear that

his bond would be forfeited if he did not stick with that landing him back

in jail pending trial.

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 The bond attorney (Mr. Ramos) made no contact with Appellant nor made a

meaningful investigation into the case before appearing at court to plea Appellant

guilty. (RR2 - 1 8) Mr. Ramos failed to admonish Appellant as to the consequences

of a plea to a habitual offender case and at that guilty plea, Mr. Ramos was so ill-

informed as to make multiple requests for a probation not allowed by law.

This case shows that when the role of a defense attorney and the role of a

bondsman are allowed to be combined into one, the legal representation can take a

back seat. Although it is convenient for one's attorney to be able to bond them out,

this scenario works fine when the attorney is going to know the basics about the

case and exhibit some form of criminal defense competence.

As in the case at bar, where the attorney does not even know that a habitual

offender case carries the most penal punishment range in all of Texas (sans capitol

cases), it is evident that the "attorney bond" in this case was nothing more than a

way to secure a paying client (if they have the funds) who is stuck in jail.

Whatever happens to that client after the bond/attorney's fees have been paid is

another matter altogether as was the case for Appellant.

CONCLUSION

Anything that interferes with a criminal defendant's right to effective

counsel under the Sixth Amendment should face scrutiny. Texas law does not

22
allow attorney's to be bondsman, rather it has to create an exemption from such

law for attorney's. This exemption within the Texas Occupation code which

allows this unusual hybrid bondsman/attorney representation should be abolished.

It serves no purpose as every county jail in Texas (and America) has a bail bond

office nearby which has their telephone number posted within the jail for inmates

in addition to the area phone book.

This Court should hold that the practice in Texas of allowing the dual

attorney/bondsman is an impermissible conflict that fails to assure defendant's full

protection under the Sixth Amendment to effective counsel.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

requests this Honorable Court of Appeals uphold his issues on appeal, reverse this

case and remand the cause for a trial, hold Texas Occupation Code § 1704.163(a)

unconstitutional or grant any other relief Appellant is entitled to by law.

Respectfully submitted,

Is! Travis Berry
Travis Berry
Texas Bar No. 24059194
P.O. Box 6333
Corpus Christi, Texas 78466
T: (361) 673-5611; F: (361) 442-2562
travisberrylawgmail.com
ATTORNEY FOR APPELLANT

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 CERTIFICATE OF SERVICE

This is to certify that on this March 17, 2015, a true and correct copy of the

Appellant's Brief has been sent via email to the Nueces County District Attorney's

office, 901 Leopard - Rm. 206, Corpus Christi, Texas 78401.

/5/ Travis Bern'
Travis Berry

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 CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the

undersigned certifies this brief complies with the type-volume limitations

announced in Rule 9.4(i)(2)(B) of the Texas Rules of Appellate Procedure.

1. The undersigned certifies that the Initial Brief contains no more than

5 060 words in proportionately spaced typeface, an amount of
,

words within the limits set forth in Rule 9.4(i)(2)(B)

2. The brief has been prepared in proportionately spaced typeface using

WordPerfect 12 in 14 pt. Times New Roman. Footnotes have been used and

are all accounted for in the above word count.

3. The undersigned acknowledges a material misrepresentation in completing

this certificate, or circumvention of the type-volume limits states in Rule

9.4(i)(2)(B) of the Texas Rules of Appellate Procedure, may result in the

Court striking the brief.

/5/ Travis Berry
Travis Berry

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APPENDIX

26
AFFIDAVIT