ACCEPTED
06-14-00220-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
9/18/2015 3:34:37 PM
DEBBIE AUTREY
CLERK
IN THE COURT OF APPEALS FOR THE
SIXTH DISTRICT OF TEXAS AT TEXARKANA
FILED IN
6th COURT OF APPEALS
SHAHID KARRIEM ANSARI III, § TEXARKANA, TEXAS
APPELLANT § 9/21/2015 8:33:00 AM
§ DEBBIE AUTREY
Clerk
v. § Nos. 06-14-00220-CR
§
§
THE STATE OF TEXAS, §
APPELLEE §
STATE'S BRIEF
FROM THE 354nr JUDICIAL DISTRICT COURT
HUNT COUNTY, TEXAS
TRIAL CAUSE NUMBER 27,739
THE HONORABLE RICHARD A. BEACOM, JR., JUDGE PRESIDING
NOBLE DAN WALKER, JR.
District Attorney
Hunt County, Texas
KELI M. AIKEN
First Assistant District Attorney
P. 0. Box441
4th Floor Hunt County Courthouse
Greenville, TX 7 5403
kaiken@huntcounty.net
ORAL ARGUMENT IS NOT (903) 408-4180
REQUESTED FAX (903) 408-4296
State Bar No. 24043442
TABLE OF CONTENTS
Table of Contents .......................................................................................................... .ii
Index of Authorities ..................................................................................................... iii
Issues Presented .................................................................................................... 5-10
1. Appellant's trial counsel provided effective assistance by presenting the best
trial strategy he could when his client chose to plead true to the elements of the
offense and throw himself on the mercy of the comi ................................. 5-10
Prayer ........................................................................................................................ 11
Certificate of Service ................................................................................................ 12
Ce1iificate of Compliance with Rule 9 .4 .................................................................. 12
INDEX OF AUTHORITIES
CASES:
Blott v. State, 588 S.W.2d 588 (Tex. Crim. App. 1979) ........................................... 6
Eddie v. State, 605 S.W.2d 924 (Tex. Crim. App. 1980) ....................................... 6
Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) ................................... 5
Johnson v. State, 959 S.W.2d 230 (Tex.App.-Dallas 1997) ................................ 6
Kimmelan v. Morrison, 477 U.S. 365, 91 L.Ed. 305 (1986) .................................. 6
Strickland v. Washington, 466 U.S. 668, 80 L.Ed. 674 (1984) .............................. 5-6
Moore v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ........................................ 6-7
Toupal v. State, 926 S.W.2d 606 (Tex. App.-Texarkana 1996)) ......................... 6
IN THE COURT OF APPEALS FOR THE
SIXTH DISTRICT OF TEXAS AT TEXARKANA
SHAHID KARRIEM ANSARI III, §
APPELLANT §
§
v. § NOS. 06-14-00220-CR
§
§
THE STATE OF TEXAS, §
APPELLEE §
STATE'S BRIEF
TO THE HONORABLE COURT OF APPEALS:
NOW COMES the State of Texas, Appellee, in this appeal from Cause No.
27,739 in the 354th Judicial District Court in and for Hunt County, Texas,
Honorable Richard A. Beacom, Jr., Presiding, now before the Sixth District Comi
of Appeals, and respectfully submits this its brief to the Court in suppmi of the
judgment of sentence in the comi below.
STATE'S RESPONSE TO POINTS OF ERROR ONE
Appellant's trial counsel provided effective assistance
by presenting the best trial strategy he could when his
client chose to plead true to the elements of the offense
and throw himself on the mercy of the court.
Argument and Authorities
In order to prevail on a claim that counsel was ineffective, appellant must
prove that: (1) his counsel's representation was deficient; and (2) the deficient
performance was so serious that it prejudiced his defense. That is, appellant must
prove by a preponderance of the evidence that counsel's representation fell below
the standard of prevailing professional nonns and there is a reasonable probability
that, but for counsel's deficiency, the result of the trial would have been different.
See Stricklandv. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984);
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).
The review of counsel's representation is highly deferential, and the Comi
should indulge a strong presumption that counsel's conduct falls within a wide
range of reasonable representation. Strickland, 466 U.S. at 689. The burden is on
the appellant to overcome that presumption by identifying the acts or omissions of
counsel that are alleged to have constituted the ineffective assistance and to
affirmatively prove that they fall below the professional norm or reasonableness.
Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Additionally,
appellant must prove that counsel's en-ors, judged by the totality of the
representation, denied him a fair trial. Merely showing that they had some
conceivable effect on the proceedings is inadequate to prevail on a claim of
ineffective assistance of counsel. Strickland, 466 U.S. at 693.
In evaluating the first prong of the Strickland inquiry, appellant must rebut
the presumption that counsel's representation was competent by proving that the
challenged assistance was not sound trial strategy. Kimm,elan v. Morrison, 4 77
U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed. 305 (1986) (citing Strickland, 466 U.S. at
688-689); Johnson v. State, 959 S.W.2d 230, 236-237 (Tex.App.-Dallas 1997).
The comi must not second-guess through hindsight the strategy of counsel at trial;
nor should the fact that another attorney might have pursued a different course of
action support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592
(Tex. Crim. App. 1979). The fact that another attorney, including appellant's
counsel on appeal, might have pursued a different course of action does not
indicate that the trial att0111ey was ineffective. Id.
Fmihermore, when an Appellant pleads guilty (or true), trial counsel does
not have to perform the same level of independent investigation he would in a
contested proceeding. Toupal v. State, 926 S.W.2d 606, 608 (Tex. App.-
Texarkana 1996); Eddie v. State, 100 S.W.3d 437, 442 (Tex. App.-Texarkana
2002). The State only has to prove one of the allegations in the motion for the trial
comi to revoke (or adjudicate) probation. Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. 1980).
A. Appellant chose to plead true to the allegations that the State
could prove.
This was not Appellant's first motion to adjudicate so Appellant knew what to
expect at the hearing. A year before Appellant faced a motion to adjudicate.
RRl 7/pp.1-39. During that hearing the State offered proof that Appellant: 1) made
only $65.00 in payments while on probation; 2) had only completed 44 hours of
community service; 3) failed to complete the anger management class; 4) did not
complete the psychological evaluation; 5) failed to appear at a violation review and
6) was an-ested for family violence assault. RR19/p.18, lines 10-21. At the prior
MTA Appellant presented no witnesses. RRl 78/pp.1-39. Appellant did testify at
the end of the prior hearing when the comi asked him questions. RRl 7/pp.36-37.
At the end of Appellant's first MTA, Appellant was allowed to remain on probation
with amended terms including: an extension of the length of probation, a 90 day
sanction and work release. RRl 7/pp.38-39; RR19/p.9, lines 9-16 and pp.11-12.
Appellant made the decision to plead true as part of his overall trial strategy of
admitting to everything but asking the trial court to give him another chance at
probation. Appellant had the opportunity to have his MTA set off so the State
could order certified copies of the two judgments for the offenses in paragraphs 1
and 2 or pled true and have a hearing the following week. RR18/p.5, lines 7-19.
Trial counsel spoke with Appellant and then came back onto the record with
Appellant establishing his intent to plead true to both paragraphs alleging the new
offenses. RR18/pp.5-6. Once Appellant pled true, the trial comi asked ifhe
wanted to proceed with the final hearing that day or next week. RRl 8/p.6, lines
19-20. Appellant did enter pleas of not true to paragraphs 3-5 and true to the
allegations in paragraph 6 and the trial comi set the final hearing for a week away
after consulting to make sure the date worked with trial counsel's schedule.
RR18/p.7, lines 2-20. The trial comi found that paragraphs 1, 2 and 6 were true
and proceeded to a sentencing hearing. RR19/pp.6-7.
B. Trial counsel's strategy was to have Appellant testify and ask
for mercy as when Appellant testified at the prior adjudication
hearing the trial court allowed him to remain on probation with
a jail sanction.
The evidence presented at sentencing reflected the initial allegations in the
MTA as well as Appellant's perfonnance on probation. At the final MTA hearing,
the State abandoned paragraphs 3,4, and 5. RR19/pp.5-6. Probation Officer
Cindy Ware explained how Appellant accomplished very little while on probation.
RR19/pp.7-10. Appellant perfonned only 3 community service hours in the last
year. RR19/p.7, lines 16-22. Appellant made one payment of $30.00 since
December 2013. RR19/pp.7-8. Appellant last repmied to probation in December
of 2013 and has not repmied since. RR19/p.8, lines 2-9. At the final hearing
Officer Ware also testified that she reviewed a final judgment showing
Appellant's conviction for the offense of possession of marijuana alleged in
paragraph 2. RRl 9/p.10, lines 8-20.
Appellant even admitted to the offenses alleged in paragraphs 1 and 2 again
in his testimony at punislunent. RR19/pp.11-12. Appellant received probation for
the new offenses alleged in paragraphs 1 and 2. RRl 9/p.10, lines 8-20. Appellant
also admitted he never took the anger management class listed in paragraph 6.
RR/19/p.12, lines 12-17. Appellant did claim he performed additional hours of
community service for the City of Commerce on probation and that he told his
probation officer when he reported about the additional hours. RRl 9/pp.12-13.
Appellant asked the trial court to give him another chance and reinstate
Appellant on probation. RRl 9/p.14, lines 3-6. Appellant admitted he was on his
second motion to adjudicate and had not perfonned well on probation but felt that
now he was able to make it work and wanted another chance. RRl 4-15. He
explained he was a young man with four small children under the age of 3 and that
he had a place to live here in Greenville if allowed to remain on probation.
RR19/pp.14-15. Appellant admitted he was not perfonning community service
because he knew there was a wan-ant out for his arrest. RR19/p.17, lines 9-15.
Trial counsel argued to the comi asking for leniency and to give Appellant another
chance at probation so he could take care of his children. RR19/p.18, lines 2-8.
Appellant's trial counsel provided effective assistance of counsel; therefore,
Appellant's point of eITor should be denied and his conviction and sentence
affirmed.
CONCLUSION AND PRAYER FOR RELIEF
The State prays that the Court will affirm Appellant's sentence.
Respectfully submitted,
NOBLE DAN WALKER, JR.
District Attorney
Hunt County, Texas
Isl Keli M. Aiken
KELI M. AIKEN
Assistant District Attorney
P. 0. Box 441
4th Floor, Hunt County Comihouse
Greenville, TX 7 5403
kaiken@huntcounty.net
State Bar No. 240434482
(903) 408-4180
FAX (903) 408-4296
CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT
In accordance with Texas Rules of Appellate Procedure 9 .4 ( e) and (i), the
undersigned attorney or record certifies that Appellants Brief contains 14-point
typeface of the body of the brief and contains 1,896 words and was prepared on
Microsoft Word 2013.
/sf Keli M. Aiken
KELI M. AIKEN
First Assistant District Att01ney
P. 0. Box 441
4th Floor Hunt County Comihouse
Greenville, TX 75403
(903) 408-4180
FAX (903) 408-4296
State Bar No. 24043442
CERTIFICATE OF SERVICE
A true copy of the State's brief has been placed in Jason Duffs box in the
Hunt County District Clerk's Office and emailed to him, today September 18,
2015, pursuant to local rules.
Isl Keli M. Aiken
KELI M. AIKEN
First Assistant District Att01ney