ACCEPTED
01-14-00121-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/15/2015 4:11:02 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00121-CR
IN THE COURT OF APPEALS FILED IN
FOR THE FIRST DISTRICT OF TEXAS 1st COURT OF APPEALS
HOUSTON, TEXAS
9/15/2015 4:11:02 PM
CHRISTOPHER A. PRINE
PAUL BRIONES Clerk
Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause Number 1268863
From the 178th District Court of Harris County, Texas
BRIEF FOR APPELLANT
ORAL ARGUMENT REQUESTED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
DAUCIE SCHINDLER
Assistant Public Defender
TBN 24013495
1201 Franklin, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
Counsel for Appellant
1
IDENTITY OF PARTIES AND COUNSEL
Appellant Mr. Paul Briones
TDCJ No. 01925826
James Lynaugh Unit
1098 South Highway 2037
Fort Stockton, Texas 79735
Presiding Judge The Honorable David Mendoza
178th District Court
1201 Franklin Street, 19th Floor
Houston, Texas 77002
Defense Counsel at Trial Mr. John T. Floyd
Mr. Christopher Carlson
The Kirby Mansion
2000 Smith Street
Houston, Texas 77002
(713) 224-0101
Prosecutors at Trial Mr. Connie Spence
Ms. Maritza Antu
Assistant District Attorneys
Harris County
1201 Franklin Street, 6th Floor
Houston, Texas 77002
(713) 755-6916
Defense Counsel at Motion for New Trial Mr. Abraham Fisch
Appellant’s Counsel Daucie Schindler
Assistant Public Defender
Harris County
1201 Franklin Street, 13th Floor
Houston, Texas 77002
(713) 274-6717
Daucie.schindler@pdo.hctx.net
2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................................... 2
TABLE OF CONTENTS ................................................................................................................. 3
INDEX OF AUTHORITIES ........................................................................................................... 5
STATEMENT OF THE CASE ....................................................................................................... 7
ISSUE PRESENTED ........................................................................................................................ 8
STATEMENT OF FACTS ............................................................................................................... 9
The Trial ................................................................................................................................... 9
The Motion for New Trial ................................................................................................... 10
SUMMARY OF THE ARGUMENTS ......................................................................................... 16
ISSUE ONE ...................................................................................................................................... 17
ISSUE TWO ...................................................................................................................................... 17
ISSUE THREE ................................................................................................................................. 17
ARGUMENT .................................................................................................................................... 17
Standard of Review ............................................................................................................... 17
Deficient performance under the totality of the circumstances ............................. 20
Deficient Performance – failure to secure the attendance of critical witnesses ........... 20
Deficient Performance – failure to impeach complainant .............................................. 23
Deficient Performance – failure to present mitigating evidence .................................... 25
Deficient Performance – failure to impeach the State’s punishment evidence ............ 26
Prejudice ................................................................................................................................. 27
CONCLUSION ................................................................................................................................ 34
PRAYER ............................................................................................................................................ 35
3
CERTIFICATE OF COMPLIANCE ........................................................................................... 36
CERTIFICATE OF SERVICE ...................................................................................................... 37
4
INDEX OF AUTHORITIES
Cases
Avery v. Prelesnik, 548 F.3d 434 (6th Cir. 2008) ...............................................................................29
Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990) ............................................................................26
Cannon v. State, 252 S.W.3d 342 (Tex. Crim. App. 2008) ............................................................33
Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004) .............................................................19
Coleman v. State, 966 S.W.2d 525 (Tex. Crim. App.1998) ............................................................31
Cuyler v. Sullivan, 446 U.S. 335 (1980) ..............................................................................................18
Doherty v. State, 781 S.W.2d 439 (Tex. App. -Houston [1st Dist.] 1998) ....................................30
Everage v. State, 893 S.W.2d 219 (Tex. App. -Houston [1st Dist.] 1995) ............................. 29, 32
Ex parte Amezquita, 223 S.W.3d 363 (Tex. Crim. App. 2006) .............................................. 21, 23
Ex parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983) ..............................................................31
Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990) .........................................................20
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) .............................................................20
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) ........................................................25
Holden v. State, 201 S.W.3d 761 (Tex. Crim. App. 2006) ............................................................20
Jackson v. State, 857 S.W.2d 678 (Tex. App. -Houston [14th Dist.] 1993, pet. ref'd) ......... 21, 23
Lockhart v. Fretwell, 506 U.S. 364 (1993) ..........................................................................................31
Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1992) ...................................................................................21
Martinez v. Ryan, 132 S.Ct. 1309 (2012) ..........................................................................................19
Matthews v. Abramajtys, 319 F.3d 780 (6th Cir. 2003) ......................................................................29
Montgomery v. Peterson, 846 F.2d 407 (7th Cir. 1988)........................................................................30
5
Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999) .......................................................................... 21, 24
Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985) ...............................................................................29
Powell v. Alabama, 287 U.S. 45 (1932) ..............................................................................................19
Rivera v. State, 123 S.W.3d 21 (Tex. App. -Houston [1st Dist.] 2003, pet. ref'd) .......................26
Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006) ..........................................................20
Shanklin v. State, 190 S.W.3d 154 (Tex. App. -Houston [1st Dist.] 2005, pet. dism'd) .............33
State v. Thomas, 768 S.W.2d 335 (Tex. App. -Houston [14th Dist.] 1989, no pet.) ....................32
Strickland v. Washington, 466 U.S. 688 (1984) ........................................................................... Passim
Toliver v. Pollard, 688 F.3d 853 (7th Cir. 2012) .................................................................................30
United States v. Cronic, 466 U.S. 648 (1984)............................................................................... 18, 33
U.S., ex rel, Cross v. DeRobertis, 911 F.2d 1008 (7th Cir. 1987) .......................................................30
Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006) ..................................................................................24
Walker v. State, 195 S.W.3d 250 (Tex. App. -San Antonio 2006, no pet.) .................................25
Washington v. Texas, 388 U.S. 14 (1967) ...........................................................................................31
Wiggins v. Smith, 539 U.S. 510 (2003) ........................................................................................ 21, 25
Wood v. State, 260 S.W.3d 146 (Tex. App. -Houston [1st Dist.] 2008, no pet.) .........................25
6
STATEMENT OF THE CASE
Mr. Briones was charged by indictment, on September 16, 2010, in the 176th
District Court of Harris County, with the felony offense of indecency with a child in
Cause Number 1268863.1 (C.R. at 12). Mr. Briones was represented at trial by Mr.
Abraham Fisch. (C.R. at 15). After a jury trial, Mr. Briones was found guilty of
indecency with a child and assessed a ten (10) year probated sentence.2 (C.R. at 15-
20). On July 12, 2011, a Motion for New Trial was filed. (C.R. at 21-23). On July
20, 2011, the trial court granted the Motion for New Trial. (C.R. at 24). On October
17, 2011, the case was transferred to the 178th District Court of Harris County,
Texas.3 (C.R. at 31-32).
Mr. Briones again entered a plea of not guilty to the charge of indecency with a
child in Cause Number 1268863.4 (4 R.R. at 71-72). On January 7, 2014, he
proceeded to trial by jury, represented at trial by Mr. John Floyd and Mr. Christopher
Carlson. (C.R. at 146). On January 17, 2014, the jury found Mr. Briones guilty of
indecency with a child and after trial on punishment, the jury sentenced him to twenty
(20) years imprisonment in the Institutional Division of Texas Department of
1 Mr. Briones was also charged in cause number 1268861 with aggravated sexual assault of a child.
2 He was also found guilty of aggravated sexual assault of a child and sentenced by the jury to seven (7) years in the
Institutional Division of the Texas Department of Criminal Justice
3 The Motion for New Trial was granted as to cause number 1268861 as well and this case was also transferred to the
178th District Court.
4 Mr. Briones entered a plea of not guilty to the charge of aggravated sexual assault of a child in cause number 1268861
as well.
7
Criminal Justice.5 (C.R. at 50, 61). Mr. Briones filed timely Notice of Appeal and a
Motion for New Trial was filed through attorney Abraham Fisch, on February 17,
2014. (C.R. at 68, 72-90).
The hearing on the Motion for New Trial began on April 2, 2014. Although
the Motion for New Trial was overruled by operation of law on April 2, 2014, the
hearing continued on April 10, 2014, April 11, 2014, and April 25, 2014. The Motion
for New Trial was denied by the trial court on May 2, 2014. (C.R. at 148-149). Mr.
Briones requested abatement for an out of time hearing on the Motion for New Trial.
However, this Court, on June 30, 2015, denied the abatement, but granted Mr.
Briones’ request that the record of the untimely portion of the hearing and the trial
court’s ruling be considered to resolve matters related to this direct appeal.
ISSUES PRESENTED
ISSUE ONE
THE DISTRICT COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHERE
DEFENSE COUNSEL FAILED TO SECURE THE ATTENDANCE OF MULTIPLE
WITNESSES IN VIOLATION OF MR. BRIONES’ RIGHTS UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND UNDER ART. I, §§ 10 AND 19 OF THE TEXAS
CONSTITUTION.
.
5The jury acquitted Mr. Briones of aggravated sexual assault in cause number 1268861 and the record of this charge was
expunged on January 16, 2014.
8
ISSUE TWO
THE DISTRICT COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHERE
DEFENSE COUNSEL FAILED TO IMPEACH THE COMPLAINING WITNESS
WITH MULTIPLE PRIOR INCONSISTENT STATEMENTS IN VIOLATION OF
MR. BRIONES’ RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND UNDER ART.
I, §§ 10 AND 19 OF THE TEXAS CONSTITUTION.
ISSUE THREE
THE DISTRICT COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHERE
DEFENSE COUNSEL FAILED TO PRESENT MITIGATING EVIDENCE AT
PUNISHMENT IN VIOLATION OF MR. BRIONES’ RIGHTS UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND UNDER ART. I, §§ 10 AND 19 OF THE TEXAS
CONSTITUTION.
STATEMENT OF FACTS
THE TRIAL
The evidence at trial established that sometime around July, 2007, Mr. Briones’
niece6, L.D., told her aunt, Katrina Pena, that several years prior, in approximately
December, 2004, she had been inappropriately touched by her uncle as she lay on the
floor of his living room surrounded by her sister and cousins who were asleep at the
time. (4 R.R. at 82-100). There were no other allegations of abuse made by L.D. or
by any of the other children. There was no action taken by either L.D. or her aunt
until about six months later when Ms. Pena informed L.D.’s mother of her allegation.
(4 R.R. at 108-116). Although her parents unsuccessfully attempted to obtain medical
6 Because the complainant was a minor at the time of the alleged offense, for purposes of this appeal, she will be referred
to as L.D.
9
help for L.D., the police were not contacted by the family until May, 15, 2010; nearly
three years after L.D.’s initial outcry to her aunt. (4R.R. at 175-199). Mr. Briones was
acquitted of the charge of aggravated sexual assault of a child, but convicted of
indecency and sentenced to twenty (20) years confinement in the Institutional
Division of the Texas Department of Criminal Justice. (9 R.R. at 8, 10 R.R. at 190).
THE MOTION FOR NEW TRIAL
Through a new attorney, Mr. Abraham Fisch, a claim of ineffective assistance
of counsel was raised in a Motion for New Trial. (C.R. at 72). The Motion for New
Trial was denied by the trial court on May 2, 2014. (C.R. at 148-149). At the hearing
on the motion, Mr. Floyd testified that he had been hired by Mr. Briones to represent
him against the allegations of indecency with a child and aggravated sexual assault of a
child. Mr. Briones was convicted of indecency and sentenced to twenty (20) years in
prison. He was acquitted of aggravated sexual assault of a child. (13 R.R. at 17).
MR. FLOYD FAILED TO CHALLENGE THE CREDIBILITY OF THE COMPLAINANT
Mr. Floyd testified that he was aware of the fact that Mr. Briones had
previously been convicted by a jury on both counts, but those convictions were
reversed by the trial court when it was discovered that the jury considered an exhibit
that had not been admitted into evidence. As part of his trial preparation, Mr. Floyd
reviewed the transcript from the previous trial. (13 R.R. at 19-30). He considered the
testimony of the complainant about what allegedly happened on the night in question
to be the heart of the case. Despite the significance of her testimony about that night,
10
Mr. Floyd did not use her prior inconsistent statements at the previous trial to
impeach her credibility because he either did not recognize the inconsistencies or he
thought them immaterial.7 (13 R.R. at 57-64). Mr. Floyd’s cross-examination
consisted nearly entirely of open ended questions similar to those already covered
during the State’s direct. (13 R.R. at 93-94; 6 R.R. at 127-233). According to Mr.
Floyd it was not his strategy to conduct “cross-examination with a transcript in [his]
hand” (13 R.R. at 98) and the inconsistent statements of the complainant “didn’t
mean anything to our defense.” (14 R.R. at 24).
Although L.D. testified to being depressed and angry Mr. Floyd had obtained
hundreds of posts on her Facebook page contradicting her testimony regarding her
mental state, and in one instance posting that “[i]f you upset me, you better get out of
my way,” but Mr. Floyd did not impeach L.D. with this information. (13 R.R. at 136-
137). Mr. Briones’ step-daughter, Ashley, and his son, Jonathon, spent a lot of time
around L.D. and were available to testify as to her reputation for truthfulness. Ashley
would have testified that L.D. was a manipulative liar and a troublemaker.
L.D. testified that Ashley and Jonathon were sleeping on the floor next to her
when the alleged sexual misconduct occurred. Ashley and Jonathon would have
7 For example, L.D. testified at trial in 2011 that her uncle came home and went to his bed room before going into the
kitchen, but in 2014, L.D. testified that her uncle came home and went straight into the kitchen. (13 R.R. at 89-90). She
testified at trial in 2011 that she was able to see her uncle in the kitchen because of the proximity and the light from the
refrigerator, but in 2014, she testified that she could not see, but only hear, her uncle in the kitchen. (13 R.R. at 91-92).
She testified in 2014 that her uncle adjusted the blankets before making a sandwich in the kitchen, but in 2011 she
testified that he adjusted the blankets after leaving the kitchen. (13 R.R. at 95-97). In 2011, L.D. testified that after
adjusting the blankets, Mr. Briones returned to the kitchen for five to ten minutes, but in 2014 she testified that he went
from the kitchen to his bedroom. (13 R.R. at 99).
11
testified that they did not have any recollection of the events in question, but Mr.
Floyd did not provide this testimony at trial for the jury’s consideration. (13 R.R. at
138-142). Mr. Floyd did not provide the testimony of the complainant’s sister, Kayla,
(although she had testified at the trial in 2011, was subpoenaed, and available to testify
at the trial in 2014) because “they were still interviewing her” and he was “unsure
about what her testimony might be, up until the last day.” (13 R.R. at 149).
MR. FLOYD FAILED TO PROVIDE CRUCIAL EVIDENCE AT TRIAL
Although he acknowledge the significance of eye witness testimony, Mr. Floyd
did not call any of the available eye witnesses, including Mr. Briones’ children and his
wife, who would have been able to refute the complainant’s testimony that on the
night in question, she, her sister, and her cousins were sleeping on the floor, and that
her aunt, Joanna Briones, was asleep when her uncle got home. Mr. Floyd did not call
them because they are members of Mr. Briones’ immediate family and he was
concerned about possible harmful testimony. (13 R.R. at 65-81). Mr. Floyd
acknowledged that he could have approached the bench and requested a hearing to
determine the admissibility of the testimony he deemed harmful from these witnesses,
but he didn’t even attempt to do so. (14 R.R. at 175).
Although he testified that he had reviewed the medical records in this case and
agreed that substance abuse by the complainant is important, Mr. Floyd did not call
the psychologist who ultimately treated L.D. even though L.D. admitted during her
therapy sessions to having a very tumultuous relationship with her father and that she
12
was abusing alcohol, marijuana, and pain pills during the time she decided to make her
initial outcry to her aunt. (13 R.R. at 105-108). In addition, a nurse practitioner
treated L.D. after the psychologist. discharged her from therapy for not “being open.”
(13 R.R. at 171). L.D. had been diagnosed with and was being treated for bipolar
disorder, but Mr. Floyd did not present this evidence because, although he agreed that
the evidence would have benefitted Mr. Briones’ case, he did not know how to
present it without it “backfiring and hurting the client.” (13 R.R. at 109-116).
In preparation for trial, Mr. Floyd obtained the expert assistance of Dr. Aaron
Pierce who was available to testify at trial. Mr. Floyd did not recall giving Dr. Pierce
any of L.D.’s medical records or previous trial testimony to review, but he thought
they had discussed the records with him and determined that his testimony would not
be helpful. (13 R.R. at 129-131). In addition, Mr. Floyd hired an investigator who
questioned the family in this case and determined that L.D. loved spending time at the
Briones’ house and continued to go there without complaint for years following the
alleged conduct. The family contradicted L.D.’s testimony regarding the basic
functioning of the Briones’ household indicating that Joanna Briones always waited
up for her husband to come home and would not have been asleep at the time in
question. Mrs. Briones also either left food out for her husband him or told him to
pick something up on his way home, but he did not ever prepare food when he got
home late from work. (13 R.R. at 152-156).
13
The investigator also uncovered evidence that L.D. had asked Paul and Joanna
Briones if she could live with them shortly before the initial outcry occurred and they
had informed her that she could not because she was too much of a problem child.
Despite having this evidence, Mr. Floyd argued in closing that he had “no idea why
she’s making this story up.” (14 R.R. at 127). The reason Mr. Floyd offered for
failing to utilize this information was that he “chose not to call any witness in [Mr.
Briones’] defense.” (13 R.R. at 163).
L.D.’s parents, Lucinda and Karl, first reported their daughter’s allegations to
the Houston Police Department nearly three years after L.D.’s initial outcry. The
HPD officer that they reported the incident to was Officer Munoz. This initial report
contained several inconsistencies as compared to the trial testimony including an
allegation of penile penetration. Mr. Floyd issued a subpoena for Officer Munoz and
he was available to testify at trial. Although Lucinda denied the false statements in the
first report to police at trial, Mr. Floyd did not call Officer Munoz to impeach her
testimony because he believed that Officer Munoz was “extremely interested in
helping the State in this case” and he would have been “difficult to control.” (13 R.R.
at 183-200).
MR. FLOYD FAILED TO PRESENT MITIGATING EVIDENCE AT PUNISHMENT
Ultimately, Mr. Briones was found guilty and sentenced to twenty years in
prison as compared to the ten year probated sentence he received at the previous trial
in this case. (13 R.R. at 208). At punishment, the State called numerous witnesses,
14
but Mr. Floyd called only one witness, Mr. Briones’ sister: Oralia Schmidt, on Mr.
Briones’ behalf. Although he acknowledged that it was mitigating, Mr. Floyd did not
offer evidence from Mr. Briones’ previous employers, including Judge Jefferson,
Judge McSpadden, and Judge Cagle, who provided favorable character evidence on
Mr. Briones’ behalf at the previous trial. (13 R.R. at 216-217; Defendant’s Exhibits
17-20). According to Mr. Floyd, he did not provide the jury with this mitigating
evidence because “recommendations from work saying he did a good job just really
didn’t mean a lot to [him].” (14 R.R. at 179).
In addition, during the cross-examination of the one character witness that he
called on Mr. Briones’ behalf, Mr. Floyd failed to object when the State repeatedly
cross examined Ms. Schmidt with evidence not before the jury at that time. (13 R.R.
at 220-223). At one point during the cross of Ms. Schmidt, the State improperly
alleged that Mr. Briones failed to pay child support for his son from a previous
relationship, but Mr. Floyd failed to correct the jury’s impression on this issue. (13
R.R. at 223-225; See Defendant’s Exhibit 16). Mr. Floyd admitted that it would have
been easy to obtain certified government documents establishing both that Mr.
Briones had paid child support and also that Mr. Briones had an honorable military
record, but Mr. Floyd “didn’t do that.” (14 R.R. 1t 169).
At punishment, the State called Dr. Lawrence Thompson who would testify,
without objection, that “[t]he only way to be certain a sex offender is not going to
reoffend, is to incarcerate them.” (16 R.R. at 134-135). Although Mr. Floyd had an
15
expert, Dr. Pierce, who was available and could have “definitely” challenged Dr.
Thompson’s testimony, he did not call him because he did not “find that there was
anything from Thompson that was so damaging.” (16 R.R. at 136).
SUMMARY OF THE ARGUMENTS
The trial court abused its discretion in denying Mr. Briones’ Motion for New
Trial which alleged that his trial attorneys rendered ineffective assistance of counsel.
In failing to secure the testimony of crucial, exculpatory witnesses for Mr. Briones
who would have offered material facts and impeached the testimony of the
complainant, trial counsel’s conduct was objectively deficient and prejudiced the
defense. Trial counsel’s failure to uncover and utilize readily available evidence to
impeach the credibility of the complainant, where her credibility was critical cannot be
considered strategic and was objectively deficient performance. In addition, at
punishment, trial counsel failed to present a plethora of mitigating evidence that was
readily available. The harm caused by the lack of investigation into and presentation
of mitigation evidence is apparent as the jury assessed the maximum punishment
allowed for a second degree felony. As a result, Mr. Briones’ constitutional right to
present a defense was eviscerated. The trial court’s findings that counsel used sound
trial strategy are not entitled to deference because the record supports a finding that
counsel failed to understand and present crucial evidence in support of the defense.
16
ISSUE ONE
THE DISTRICT COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHERE
DEFENSE COUNSEL FAILED TO SECURE THE ATTENDANCE OF MULTIPLE
WITNESSES IN VIOLATION OF MR. BRIONES’ RIGHTS UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND UNDER ART. I, §§ 10 AND 19 OF THE TEXAS
CONSTITUTION.
.
ISSUE TWO
THE DISTRICT COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHERE
DEFENSE COUNSEL FAILED TO IMPEACH THE COMPLAINING WITNESS
WITH MULTIPLE PRIOR INCONSISTENT STATEMENTS IN VIOLATION OF
MR. BRIONES’ RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND UNDER ART.
I, §§ 10 AND 19 OF THE TEXAS CONSTITUTION.
ISSUE THREE
THE DISTRICT COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHERE
DEFENSE COUNSEL FAILED TO PRESENT MITIGATING EVIDENCE AT
PUNISHMENT IN VIOLATION OF MR. BRIONES’ RIGHTS UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND UNDER ART. I, §§ 10 AND 19 OF THE TEXAS
CONSTITUTION.
ARGUMENT
Standard of Review
In the seminal case of Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court granted certiorari to determine what standards are to be applied in adjudicating
claims of ineffective assistance of counsel. The Court reaffirmed “that the Sixth
Amendment right to counsel exists, and is needed, in order to protect the
fundamental right to a fair trial.” Id. at 684. Although the Due Process Clauses
17
guarantee “a fair trial,” it is the Sixth Amendment which “defines the basic elements
of a fair trial…” Id. at 685. As Justice O’Connor reasoned,
A fair trial is one in which evidence subject to adversarial testing is presented to
an impartial tribunal for resolution of issues defined in advance of the
proceedings. The right to counsel plays a crucial role in the adversarial system embodied in
the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord
defendants the ‘ample opportunity to meet the case of the prosecution.’
***
The Sixth Amendment recognizes the right to the assistance of counsel because it envisions
counsel’s playing a role that is critical to the ability of the adversarial system to produce just
results. An accused is entitled to be assisted by an attorney, whether retained or appointed,
who plays the role necessary to ensure that the trial is fair. (Emphasis added).
Id. In the final analysis, “[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result. Id. at 686. “Unless a defendant charged with a serious offense
has counsel able to invoke the procedural and substantive safeguards that distinguish
our system of justice, a serious risk of injustice infects the trial itself.” Cuyler v.
Sullivan, 446 U.S. 335, 343 (1980). Absent competent counsel, ready and able to
subject the prosecution’s case to the “crucible of meaningful adversarial testing,” there
can be no guarantee that the adversarial system will function properly to produce just
and reliable results. United States v. Cronic, 466 U.S. 648, 656 (1984). “Thus, the right
to the effective assistance of counsel is recognized not for its own sake, but because
of the effect it has on the ability of the accused to receive a fair trial.” Cronic, at 658.
18
As the Supreme Court reaffirmed in Martinez v. Ryan, 132 S.Ct. 1309, 1317
(2012):
Defense counsel tests the prosecution’s case to ensure that the proceedings
serve the function of adjudicating guilt or innocence, while protecting the rights
of the person charged. See, e.g., Powell v. Alabama, 287 U.S. 45, 68-69
(1932)(“[The defendant] requires the guiding hand of counsel at every step in
the proceedings against him. Without it, though he be not guilty, he faces the
danger of conviction because he does not know how to establish his
innocence”).
The Court set out a two component standard with respect to claims of
ineffective assistance of counsel:
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a defendant
makes both showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders the result
unreliable.
Strickland, at 687.
Here, Mr. Briones raised his allegations of ineffective assistance of counsel
through a motion for new trial. Therefore, this court must determine whether the
trial court abused its discretion in denying the motion. A trial court abuses its
discretion if it acts without reference to any guiding principles or in an arbitrary or
unreasonable manner. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).
The abuse of discretion standard may not be used to insulate questions of law from
plenary review on appeal. After all, a deferential standard with respect to a trial
19
court’s denial of a motion for new trial is only applicable to “a trial court’s
determination of historical facts.” Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim.
App. 2006). Although deference should be afforded to a trial court’s underlying
factual determinations, the objective reasonableness of the challenged conduct is a
question of law reviewed de novo. Strickland, 466 U.S. at 698; Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997).
Deficient Performance under the totality of the circumstances
To establish the first prong of Strickland, Mr. Briones must show by a
preponderance of the evidence that trial counsel’s performance fell below the
objective standards of prevailing professional norms. Counsel’s performance is
judged by “the totality of the representation.” The deficiencies in counsel’s
representation of Mr. Briones permeated the proceedings. A multitude of examples
are provided below. The many instances of professional neglect and mistreatment
work to paint a picture of an extremely unprofessional course of representation in a
very serious case. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
Deficient Performance – failure to secure the attendance of critical
witnesses
Trial counsel has a duty to make an independent investigation of the facts of a
case. Ex parte Welborn, 785 S.W.2d 391, 395 (Tex. Crim. App. 1990). The United
States Supreme Court has explained that “’[s]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
20
unchallengeable; and strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.’” Wiggins v. Smith, 539 U.S. 510, 521 (2003)(quoting
Strickland, 466 U.S. at 690-691). Because there is a “crucial distinction between
strategic judgments and plain omissions,” Loyd v. Whitley, 977 F.2d 149, 158 (5th Cir.
1992), courts are “not required to condone unreasonable decisions parading under the
umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it
appears on the face of the record that counsel made no strategic decision at all.”
Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999).
Mr. Floyd had a constitutional duty to present “available evidence and
arguments” to support Mr. Briones’ defense. Jackson v. State, 857 S.W.2d 678, 683
(Tex. App. –Houston [14th Dist.] 1993, pet. ref’d). He was obligated to conduct a
reasonable investigation in an effort to present the most persuasive case that he could.
This duty encompasses presenting evidence to demonstrate Mr. Briones’ innocence,
undermine the prosecution’s case, or raise a reasonable doubt as to guilt. See Ex parte
Amezquita, 223 S.W.3d 363, 368 (Tex. Crim. App. 2006).
Mr. Floyd had available at trial, the testimony of several members of Mr.
Briones’ family who would have been able to contradict many of the allegations of the
complainant. Joanna Briones would have been able to offer testimony that
contradicted the complainant’s assertion that her aunt was asleep when Mr. Briones
21
returned home from work on the night in question. She also would have been able to
offer her opinion as to her niece’s reputation for truthfulness.
Most importantly, Mrs. Briones would have offered testimony that she and Mr.
Briones informed the complainant a few days before her initial outcry that she could
not move in with them because she was too problematic a child at that time. Mr.
Floyd would argue to the jury in summation that he did not know why L.D. would
make up this story when the answer to that question was at his fingertips, but he
failed to present the evidence of the answer to the jury. The State added fuel to the
already raging fire when they asked the jury during summation, “Why? Good God,
why would she want to make this up?” (8 R.R. at 46).
L.D.’s sister and two cousins were alleged to have been present and in the
room on the night in question, but none of them had any recollection of the events as
alleged by L.D. and none of them had ever experienced inappropriate behavior by Mr.
Briones. L.D.’s cousin, Ashley, was available to offer her opinion that L.D. was a
manipulative liar and troublemaker who often lied to get her way or so others would
pity her. Ashley was also able to establish L.D.’s volatile relationship with her own
parents and her sexual proclivity that materialized right around the time of her initial
outcry, but Mr. Floyd did not call her to the stand. (13 R.R. at 138-141; Defendant’s
Exhibit 12). His explanation that he feared harmful testimony from the witnesses is
not reasonable in light of his acknowledgment that he could have approached the
22
bench and requested a hearing to determine the admissibility of any testimony he
deemed harmful, but he didn’t even attempt to do so. (14 R.R. at 175).
Although he testified that he had reviewed the medical records in this case and
agreed that substance abuse by the complainant is important, Mr. Floyd did not call
the psychologist who ultimately treated L.D. even though L.D. admitted during her
therapy sessions to having a very tumultuous relationship with her father and that she
was abusing alcohol, marijuana, and pain pills during the time she decided to make her
initial outcry to her aunt. (13 R.R. at 105-108). In addition, the nurse practitioner
who treated L.D. after the psychologist discharged her from therapy for not “being
open” and whose primary role was to assist L.D. with the treatment of bipolar
disorder was available to testify, but Mr. Floyd did not call her either. Although he
agreed that the evidence would have benefitted Mr. Briones’ case he did not know
how to present it without it “backfiring and hurting the client.” (13 R.R. at 109-116).
Deficient Performance – failure to impeach the complainant
Trial counsel had a constitutional duty to present “available evidence and
arguments” to support Mr. Briones’ defense. Jackson, 857 S.W.2d at 683. This duty
encompasses presenting evidence to demonstrate Mr. Briones’ innocence, undermine
the prosecution’s case, or raise a reasonable doubt as to guilt. See Ex parte Amezquita,
223 S.W.3d at 368. Trial counsel’s professed reasons for failing to use the previous
inconsistent statements of the complaining witness makes clear the unavailing nature
of his claim of trial strategy. Trial counsel’s explanation for not impeaching L.D. with
23
her previous inconsistent statements – that he did not want to make the jury mad – is
an after-the-fact excuse unsupported by either logic or reason. See Virgil v. Dretke, 446
F.3d 598, 611 (5th Cir. 2006)(“When trial counsel presents an [explanation] attempting
to justify his performance at trial for facially unexplainable conduct, the justifications
not evident on the record and presented for the first time in response to a petition for
habeas corpus…have little value.”).
Trial counsel’s assertion that prior inconsistent statements of the complainant
were immaterial is not supported by the record. The complainant was the most
critical witness for the State and their entire case hinged on her credibility; indeed the
State emphasized the importance of the credibility of the complainant repeatedly
during summation going so far as to argue that “if you believe what [L.D.] says, that is
evidence and Paul Briones is guilty” and “it all goes down to credibility…[d]o you
believe [L.D.]?” (8 R.R. at 46). Trial counsel’s cross-examination of L.D. did more
harm than good as it created the false impression that her assertion has been
consistent, rather than expose her as untruthful. See Moore v. Johnson, 194 F.3d at 611-
612 (Strickland does not require deference to claim of trial strategy “where conduct
was not motivated by ‘any strategic purpose that could conceivably have yielded any
benefit to the defense.’”).
The fact that trial counsel did not comprehend the significance of the critical
impeachment evidence –which eviscerates his claimed strategic reason for not eliciting
it – is fortified by his failure to mention her credibility issues even once during
24
summation. See Walker v. State, 195 S.W.3d 250, 260 (Tex. App. –San Antonio 2006,
no pet.)(rejecting claim of trial strategy where counsel “failed even to follow his own
flawed strategy.”). The State however, made L.D.’s credibility the end all be all of the
case when they argued that “it all goes down to credibility.” (8 R.R. at 46). Therefore,
this Court should not defer to the trial court’s flawed finding that trial counsel made a
sound strategic decision not to present L.D.’s prior inconsistent statements. See Wood
v. State, 260 S.W.3d 146, 148 (Tex. App. –Houston [1st dist.] 2008, no pet.)(“We agree
with appellant that his counsel could have no reasoning or strategy” that explains his
challenged conduct).
Deficient Performance – failure to present mitigating evidence
Although the Strickland standard was not always applied in Texas to claims of
ineffective assistance of counsel at the punishment phase of a noncapital trial, the
Court of Criminal Appeals has unambiguously adopted that standard for such claims.
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). Thus, the same two-
prongs of deficient performance and prejudice laid out in Strickland are applicable to
punishment proceedings. Wiggins v. Smith, 539 U.S. at 510.
Mr. Briones was found guilty and sentenced to twenty years in prison as
compared to the ten year probated sentence he received at the previous trial in this
case. (13 R.R. at 208). At punishment, the State called numerous witnesses, but Mr.
Floyd called only one witness, Mr. Briones’ sister: Oralia Schmidt, on Mr. Briones’
behalf. Although he acknowledged that it was mitigating, Mr. Floyd did not offer
25
evidence from Mr. Briones’ previous employers, including Judge Jefferson, Judge
McSpadden, and Judge Cagle, who provided favorable character evidence on Mr.
Briones’ behalf at the previous trial, nor did he offer evidence of Mr. Briones’
honorable military service. (13 R.R. at 216-217). According to Mr. Floyd, he did not
provide the jury with this mitigating evidence because “recommendations from work
saying he did a good job just really didn’t mean a lot to [him]” (14 R.R. at 179) and
although it would have been easy to demonstrate Mr. Briones’ military service, he just
“didn’t do that.” (14 R.R. at 169).
No reasonable strategy can be inferred from the failure to present this
mitigating evidence to the jury. A failure to uncover and present mitigating evidence
cannot be justified as a tactical decision when defense counsel has “not ‘fulfilled their
obligation to conduct a thorough investigation of the defendant’s background.”
Rivera v. State, 123 S.W.3d 21, 31 (Tex. App. –Houston [1st Dist.] 2003, pet. ref’d);
Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir. 1990)(counsel failed to present
defendant’s medical history even though counsel was informed that defendant had
been institutionalized on several occasions in the past).
Deficient Performance – failure to impeach the State’s punishment
evidence.
In addition, during the cross-examination of the one character witness that he
called on Mr. Briones’ behalf at punishment, the State improperly alleged that Mr.
Briones failed to pay child support for his son from a previous relationship, but Mr.
26
Floyd failed to correct the jury’s impression on this issue. (13 R.R. at 223-225; See
Defendant’s Exhibit 16). Mr. Floyd admitted that it would have been easy to obtain
certified government documents establishing both that Mr. Briones had paid child
support, but Mr. Floyd “didn’t do that.” (14 R.R. 1t 169).
The State relied on the testimony of Dr. Lawrence Thompson who would
testify at punishment, without objection, that “[t]he only way to be certain a sex
offender is not going to reoffend, is to incarcerate them.” (16 R.R. at 134-135).
Although Mr. Floyd had an expert, Dr. Pierce, who was available and could have
“definitely” challenged Dr. Thompson’s testimony, he did not call him because he did
not “find that there was anything from Thompson that was so damaging.” (16 R.R. at
136). Even looking with deference to trial counsel’s perspective at the time, his
misunderstanding of the magnitude of Dr. Thompson’s testimony is objectively
unreasonable.
Prejudice
With respect to the prejudice showing, the Court rejected application of an
“outcome determinative” test stressing that “we believe that a defendant need not
show that counsel’s deficient conduct more likely than not altered the outcome in the
case.” Strickland, 466 U.S. at 693. As the Court reasoned, “[t]he result of a
proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if
the errors of counsel cannot be shown by a preponderance of the evidence to have determined the
outcome.” Id. at 694. What the defendant must show “is that there is a reasonable
27
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability sufficient to undermine
confidence in the outcome.” Id.
The “totality of the evidence” must be considered in making the prejudice
determination bearing in mind that
[s]ome errors will have a pervasive effect on the inferences to be drawn from
the evidence, altering the entire evidentiary picture, and some will have had an
isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported
by the record is more likely to have been affected by errors than one with
overwhelming record support. Taking the unaffected findings as a given, and
taking due account of the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has met the burden of
showing that the decision reached would reasonably likely have been different
absent the errors.
***
[A] court should keep in mind that the principles we have stated do not
establish mechanical rules. Although those principles should guide the process
of decision, the ultimate focus of inquiry must be on the fundamental fairness of the
proceedings whose result is being challenged. In every case the court should be concerned with
whether, despite a strong presumption of reliability, 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. (Emphasis added).
Id. at 696. Although “counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment,” that presumption applies only to the question of whether counsel’s
performance was deficient. Id. at 690.
In his concurring opinion, Mr. Justice Brennan stressed that “the prejudice
standard announced today does not erect an insurmountable obstacle to meritorious
claims, but rather simply requires courts carefully to examine records in light of both
28
the nature and seriousness of counsel’s errors and their effect in the particular
circumstances of the case.” Id. at 703. The Fifth Circuit has held
[a]lthough ‘the defendant [must] affirmatively prove prejudice,’ there are no
easily applied or specific guidelines for us to use in determining whether the
inadequate performance of the defendant’s counsel harmed his case ‘enough’ to
constitute a violation of the sixth amendment. The Supreme Court in Strickland
recognizes this problem, and, rather than develop mechanical rules, the Court
directed us to place our ‘ultimate focus of inquiry … on the fundamental
fairness of the proceeding whose result is being challenged.’
Nealy v. Cabana, 764 F.2d 1173, 1179 (5th Cir. 1985).
In applying the “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different” test, courts have
stressed that “[t]his standard does not require that defendant be found not guilty or
assessed a lenient punishment absent counsel’s errors.” Everage v. State, 893 S.W.2d
219, 222 (Tex. App. –Houston [1st Dist.] 1995). See Matthews v. Abramajtys, 319 F.3d
780, 790 (6th Cir. 2003)(“Of course, a ‘reasonable probability’ does not mean a
certainty, or even a preponderant likelihood … of a different outcome, nor, even
more, that no rational juror could constitutionally find Matthews guilty.” Id.; and
Avery v. Prelesnik, 548 F.3d 434, 439 (6th Cir. 2008), cert. denied, 558 U.S. 932
(2009)(“We do not ask whether Avery was ultimately innocent, but, rather, whether
he was deprived [of] a reasonable shot of acquittal. Here the jury was deprived of the
right to hear [potential alibi] testimony that could have supplied such ‘reasonable
doubt.’”). Moreover, “the components of the Strickland analysis cannot be treated as
hermetically sealed containers. [A court’s] inquiry with respect to one component will
29
therefore often shed a valuable cross-light upon [its] inquiry with respect to the
other.” U.S., ex rel, Cross v. DeRobertis, 911 F.2d 1008, 1013 (7th Cir. 1987).
In Toliver v. Pollard, 688 F.3d 853, 857 (7th Cir. 2012), the Court held by failing
to call “the only two witnesses that would have corroborated his theory of the
defense” and impeached the testimony of a State’s witness, defense counsel’s
performance was prejudicial to the defendant because it “’would have enhanced
significantly the chances of the jury’s accepting Mr. Toliver’s characterization of the
facts, thereby affording Mr. Toliver a reasonable probability of a different result at
trial.’” See also Montgomery v. Peterson, 846 F.2d 407, 415 (7th Cir. 1988)(Prejudice found
where defense failed to present the testimony of an exculpatory witness who would
have both “contradicted the state’s chief witness” and corroborated the defendant’s
account of the facts and, “[a]s such, it did not merely raise doubts about the
petitioner’s guilt; if believed by the jury, it would have directly exonerated him of the
crime”);(Nealy v. Cabana, 764 F.2d at 1180)(“Given that the missing witness directly
contradicted Ewing’s testimony and supports Nealy’s theory of the case, Nealy has
met his ‘burden of showing that the decision reached would reasonably likely have
been different absent the errors.’” The Court concluded that “[e]ven though defense
counsel’s errors cannot be shown by a preponderance of the evidence to have
determined the outcome of Nealy’s trial, they were of sufficient gravity to undermine
the fairness of the proceeding to suggest that a new trial is necessary to ensure that
Nealy receives a fair trial.”) Id.; and (Doherty v. State, 781 S.W.2d 439, 442 (Tex. App. –
30
Houston [1st Dist.] 1998), citing, Ex parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App.
1983, pet. ref’d)(Ineffective assistance is established with respect to defense counsel
not presenting favorable witnesses at trial “where the result is that any viable defense
available to the accused is not advanced.”).
It logically follows that in factual scenarios where defense counsel’s deficient
performance results in the failure to secure at trial the testimony of crucial witnesses
for the defense, especially when the evidence is not otherwise overwhelming,
prejudice will nearly invariably be found because such abdication of duty by counsel
implicates the substantive constitutional right to put on a defense. Lockhart v. Fretwell,
506 U.S. 364, 372 (1993)(Deprivation of substantive or procedural right to which
defendant is entitled affects reliability and fairness of the proceeding whish can result
in ineffective assistance of counsel.). The appellant enjoys “a Sixth Amendment right
to present a defense and present his version of the facts.” Coleman v. State, 966 S.W.2d
525, 527-528 (Tex. Crim. App. 1998). In Washington v. Texas, 388 U.S. 14, 19 (1967),
the Supreme Court held:
The right to offer the testimony of witnesses, and to compel their attendance, if
necessary, is in plain terms a right to present a defense, the right to present the
defendant’s version of the facts as well as the prosecution’s to the jury so it may
decide where the truth lies. Just as an accused has the right to confront the
prosecution’s witnesses for the purpose of challenging their testimony, he has
the right to present his own witnesses to establish a defense. This right is a
fundamental element of due process of law.
In the case sub judice, defense counsel’s failure to secure critically important
testimony for presentation at trial and failure to impeach the complainant with a
31
multitude of prior inconsistent statements fatally impacted Mr. Briones’ “right to
present a defense and present his version of the facts;” it also thwarted his right to
challenge the testimony of the prosecution’s most crucial witness by being unable to
present highly favorable and material testimony that contradicted the complainant’s
version of events. The sole defensive theory at trial was that the complainant’s story
lacked credibility so the decision not to challenge the credibility of the complainant
cannot be justified as strategy and resulted in the complete failure to advance the one
defensive theory available to Mr. Briones.
An attorney has a professional duty to present all available testimony in support
of the client’s defense. See State v. Thomas, 768 S.W.2d 335, 336 (Tex. App. –Houston
[14th Dist.] 1989, no pet.). Mr. Floyd basically conceded his ineffective representation
when he admitted that the answer to the seminal question of why L.D. would make
up this story would have been reasonably deduced from the evidence had he
presented the available evidence that: (1) L.D. wanted to live with Mr. and Mrs.
Briones not a month prior to her initial outcry, but they turned her down because she
was a problem child; (2) L.D. had been diagnosed with bipolar disorder; (3) L.D. was
abusing alcohol, marijuana, and pain pills at the time of the outcry; (4) and L.D.
wanted attention from her father that she was not getting. (14 R.R. at 129).
Courts are not bashful about reversing cases for ineffective assistance due to
the failure to present exculpatory witnesses. In Everage v. State, 893 S.W.2d 219 (Tex.
App. –Houston [1st Dist.] 1995, pet. ref’d), this Court held that it was ineffective
32
assistance to fail to call a potentially exculpatory witness. Surely, instances of deficient
performance of such magnitude and significance result in “evidence (not being)
subject to adversarial testing,” and irrefutably establishes that counsel did not “play
[the] role that is critical to the ability of the adversarial system to produce just results,”
and “necessary to ensure that the trial is fair.” Strickland, 466 U.S. at 685. Here, Mr.
Floyd entirely failed to subject the State’s case to any meaningful adversarial testing so
Mr. Briones suffered a constructive denial of the assistance of counsel altogether and,
because it is so likely, prejudice should be presumed. See Cronic, 466 U.S. at 659;
Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008).
With regard to the punishment proceeding, there is a reasonable probability
that Mr. Briones sentence would have been less severe had the available mitigation
evidence been presented and the State’s witnesses properly challenged. For practical
purposes, no mitigation case was presented by the defense and Mr. Briones was given
the maximum allowable sentence. Although there is no definitive way to determine
whether the jury would have delivered a lesser sentence had the mitigation evidence
been presented, when counsel deprives a defendant of the opportunity to bring out
any mitigating factors when there are witnesses available to present a mitigation case,
harm may be found. See Shanklin v. State, 190 S.W.3d 154, 165-66 (Tex. App. –
Houston [1st dist.] 2005, pet. dism’d)(“We conclude that appellant has demonstrated
prejudice in this case, even though we cannot say for certain that appellant’s character
witnesses would have favorably influenced the jury’s assessment of punishment.”).
33
Considering that when the mitigating evidence was provided to the jury at his first
trial, Mr. Briones received a ten year probated sentence, it is again so likely, that
prejudice should be presumed.
CONCLUSION
Based on the totality of the circumstances, “the fundamental fairness of the
proceedings whose result is being challenged” is so undermined by the inept conduct
of trial counsel that it establishes a “breakdown in the adversarial process that our
system counts on to produce just results.” Strickland, supra, at 696. There is certainly a
reasonable probability that had Mr. Briones been represented by effective trial
counsel, he would not have been found guilty or he would not have been assessed the
maximum punishment.
34
PRAYER
This court must reverse the conviction and remand for a new trial.
Respectfully submitted,
Alexander Bunin
Chief Public Defender
/s/ Daucie Schindler
Daucie Schindler
State Bar No. 24013495
Public Defender’s Office
Harris County, Texas
Assistant Public Defender
1201 Franklin, 13th Floor
Houston, Texas 77002
Daucie.Schindler@pdo.hctx.net
Tel: 713-274-6717
Fax: 713-368-9278
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CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 7,371 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 13 point font in footnotes produced by
Microsoft Word Software.
3. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
/s/ Daucie Schindler
DAUCIE SCHINDLER
36
CERTIFICATE OF SERVICE
I certify that on the 15th day of September, 2015, a copy of the foregoing
instrument has been electronically served upon the Appellate Division of the Harris
County District Attorney’s Office.
/s/ Daucie Schindler
DAUCIE SCHINDLER
37