ACCEPTED
03-14-00528-CR
6327823
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/3/2015 12:24:00 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00528-CR
In the FILED IN
3rd COURT OF APPEALS
Court of Appeals for the Third District of Texas AUSTIN, TEXAS
at Austin 8/3/2015 12:24:00 PM
___________________________ JEFFREY D. KYLE
Clerk
No. 12-0465-K277
In the 368th Judicial District Court
Williamson County, Texas
____________________________
JAMES ALAN WEATHERFORD
Appellant
v.
THE STATE OF TEXAS
Appellee
_____________________________
STATE’S BRIEF IN RESPONSE TO APPELLANT’S PRO SE BRIEF
_____________________________
Jana Duty
District Attorney
Williamson County, Texas
John C. Prezas
State Bar No: 24041722
Assistant District Attorney
405 Martin Luther King, Box 1
Georgetown, Texas 78626
(512) 943-1234
(512) 943-1255 (fax)
jprezas@wilco.org
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list
of the names of all interested parties follows:
Presiding Judge at Trial
The Honorable Rick Kennon, 368th Judicial District Court, Williamson
County, Texas.
Attorneys for the State
Ms. Jana Duty, District Attorney for Williamson County, 405 Martin Luther
King, Georgetown, Texas 78626.
Ms. Elizabeth Whited (pretrial/trial), Former Assistant District Attorney for
Williamson County, 405 Martin Luther King, Georgetown, Texas 78626.
Mr. Danny Smith (pretrial/trial), Assistant District Attorney for Williamson
County, 405 Martin Luther King, Georgetown, Texas 78626.
Mr. John C. Prezas (appeal), Assistant District Attorney for Williamson
County, 405 Martin Luther King, Georgetown, Texas 78626.
Mr. Daniel Sakaida (appeal), Intern/Special Prosecutor/Postgraduate Fellow
for the Williamson County District Attorney, 405 Martin Luther King,
Georgetown, Texas 78626.
Attorneys for the Defendant
Mr. Daniel Wannamaker (trial), Wannamaker & Assosiates, P.O. Box 2271,
Austin, Texas, 787681.
Mr. Dal Ruggles (appeal), Law Offices of Dal R. Ruggles, 1103 Nueces,
Austin, Texas, 78701.
Defendant/Appellant Pro Se
Mr. James Weatherford, TDCJ # 01953853, Middleton Unit, 13055 F.M.
3422, Abilene, Texas 79601.
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TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES .................................................................. ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.................................................................................... iv
STATEMENT OF THE CASE ..................................................................................1
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................3
REPLY TO ISSUE FOR REVIEW ONE ..................................................................3
PRAYER ....................................................................................................................6
CERTIFICATE OF COMPLIANCE .........................................................................7
CERTIFICATE OF SERVICE ..................................................................................7
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INDEX OF AUTHORITIES
State Cases
Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992) ..................................... 4, 6
Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980) ......................................... 5
Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997)..................................... 4
Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997) ....................................... 5
Ex parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987)......................................... 3
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) ................................. 4
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) .................................. 3
Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998)....................................... 5
Kober v. State, 988 S.W.2d 230 (Tex. Crim. App. 1999)......................................... 4
Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) ..................................... 5
Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) .......................................... 4
Strickland v. Washington, 466 U.S. 668 (1984) ................................................3, 4, 6
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ....................................... 4
iv
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant pleaded guilty in an open plea to numerous counts of Possession
of Child Pornography in two different cause numbers. Appellant appealed this
conviction, and his appellate counsel has since filed an Anders brief in this case
No. 12-0465-K368 asserting that there are no meritorious grounds for this appeal.
Appellant himself filed a Pro Se brief on July 14, 2015 alleging that his trial
counsel was constitutionally ineffective. This brief is a response to Appellant’s Pro
Se filing.
STATEMENT OF FACTS
Appellant’s Pro Se brief outlines a claim for ineffective assistance of
counsel, and attempts to bolster that argument with allegations regarding acts and
statements attributable to Appellant’s trial counsel. Specifically, Appellant alleges
that his attorney bullied him into entering an open guilty plea, partly by relaying to
Appellant that his daughter may be called to testify and “humiliated” at a trial.
Appellant also claims he was under the impression that, even after pleading guilty,
the trial court judge would determine his guilt or innocence, and that he was not
informed the trial would only be a punishment phase.
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However, none of the facts asserted by Appellant have proof in the record
which is now before the court. The motion for new trial, filed August 21, 2014 by
appellant only claimed that the verdict was contrary to the law and the evidence.
C.R. vol. 1 pp. 104-106.
Before pleading guilty, the trial court and Appellant had the following
exchange:
THE COURT: Okay. And I understand that you have decided to
waive your right to a jury trial; is that right?
THE DEFENDANT: Yes, sir, Your Honor.
THE COURT: Okay. And, understand, I have paperwork in front of
me, as well, and both of these cases indicates that you're going
to enter a plea and then we're going to have a sentencing
hearing in front of me?
THE DEFENDANT: Yes, sir, Your Honor.
THE COURT: Is that what you want to do?
THE DEFENDANT: Yes, sir, Your Honor.
THE COURT: Okay. So we're going to go through all these this
morning. And you understand that if you enter your plea today
and I accept that plea, that you can't take that back; you can't
later say, "Oh, I changed my mind and I want to go to a jury
trial now." Do you understand that?
THE DEFENDANT: Yes, sir, Your Honor.
R.R. vol. 4 p. 5-6. Following this, Appellant twice in this cause number
acknowledged that he understood that by pleading guilty he was waiving his right
to a trial by jury, and instead moving to a punishment hearing. R.R. vol. 4 pp. 9,
11. Appellant also affirmed that he was not coerced or threatened into entering his
plea of guilty. R.R. vol. 4 pp. 10, 12.
2
SUMMARY OF THE ARGUMENT
Because Appellant’s claim of ineffective assistance of trial counsel has no
basis in the record on appeal, this Court should permit Dal Ruggles to withdraw as
counsel and find that the appeal is indeed frivolous.
REPLY TO INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Texas has adopted the Strickland standard for cases involving allegations of
constitutionally ineffective assistance of counsel. See Ex parte Wilson, 724 S.W.2d
72, 73 (Tex. Crim. App. 1987); Strickland v. Washington, 466 U.S. 668 (1984).
This standard requires that Appellant prove both i) that counsel’s conduct was
deficient as falling below an objective standard of reasonableness, and ii)
prejudice, that there is a “reasonable probability” the result of the trial would have
been different but for counsel’s deficient performance. Hernandez v. State, 988
S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999). Specifically, when a defendant is
claiming ineffective assistance of counsel that has induced him to enter a plea of
guilty, the Strickland standard requires the defendant to show a reasonable
probability that “but for defense counsel’s errors,” the defendant “would not have
pleaded guilty and would have insisted on going to trial.” Kober v. State, 988
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S.W.2d 230, 232 (Tex. Crim. App. 1999); Ex parte Morrow, 952 S.W.2d 530, 536
(Tex. Crim. App. 1997).
An appellate court should review the totality of an attorney’s representation,
and the particular circumstances of each case in evaluating such claims. Thompson
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Judicial scrutiny of trial
counsel’s decisions is “highly deferential,” and must include a strong presumption
that trial counsel made all significant decisions in the exercise of a reasonable trial
strategy, and the Appellant must overcome this presumption to establish a claim of
ineffective assistance of counsel. See Delrio v. State, 840 S.W.2d 443, 445 (Tex.
Crim. App. 1992); Strickland, 466 U.S. at 689. A court should generally decline to
find trial counsel ineffective absent an opportunity to explain his actions.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
The burden for proving an ineffective assistance of counsel claim by a
preponderance of the evidence rests on the Appellant, and failure to show either
prong will defeat a claim. Thompson, 9 S.W.3d at 813; Smith v. State, 286 S.W.3d
333, 340 (Tex. Crim. App. 2009). Naturally then, ineffective assistance of counsel
is difficult to prove on direct appeal absent a hearing, such as on a Motion for New
Trial, which would provide the reviewing court with a record. Indeed, the Court of
Criminal Appeals has repeatedly held that the appropriate or most preferred means
by which a defendant should raise a claim of ineffective assistance of counsel is by
4
way of a post-conviction writ of habeas corpus. See, e.g., Rylander v. State, 101
S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Jackson v. State, 973 S.W.2d 954,
957 (Tex. Crim. App. 1998); Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim.
App. 1997) (“in most ineffective assistance claims, a writ of habeas corpus is
essential to gathering the facts necessary to adequately evaluate such claims”); Ex
parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980) (“Experience has taught
us that in most instances where the claim of ineffective assistance of counsel is
raised, the record on direct appeal is simply not in a shape, perhaps because of the
very alleged ineffectiveness below, that would adequately reflect the failings of
trial counsel”).
In this case, Appellant has pointed to no evidence in the record to support his
claims that he was coerced into pleading and did not understand the consequences.
Even the Motion for New Trial filed on filed August 21, 2014 does not allege
ineffective assistance of counsel, and no facts to that end were developed. See C.R.
vol. 1 pp. 104-106. Further, the facts that are in the record indicate that Appellant
was properly admonished, and that he was not being coerced into pleading.
Appellant was properly admonished of the consequences of his plea of guilty on
the record, and affirmed that he understood what rights he was waiving. R.R. vol. 4
p. 5-12. Contrary to Appellant’s claims that he was not aware pleading guilty
5
would put the trial in a punishment phase, the Court did directly admonish
Appellant multiple times to that effect prior to his plea. R.R. vol. 4 p. 5-6.
Because the record in this case does not support Appellant’s claims, and the
facts in the record as it currently stands would in fact tend to show the opposite, he
has not disrupted the “highly deferential” strong presumption that his trial counsel
acted made all significant decisions in the exercise of a reasonable trial strategy.
See Delrio, 840 S.W.2d at 445; Strickland, 466 U.S. at 689. Therefore, Appellant
has not met his burden to show ineffective assistance of counsel, and his claims
must fail on direct appeal.
PRAYER
Wherefore, the State respectfully requests that this Court permit Dal Ruggles
to withdraw as appellate counsel in this case and find that the appeal in this cause
is indeed frivolous.
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Respectfully submitted,
Jana Duty
District Attorney
Williamson County, Texas
/s/ John C. Prezas
John C. Prezas
State Bar No: 24041722
Assistant District Attorney
405 Martin Luther King, Box 1
Georgetown, Texas 78626
(512) 943-1234
(512) 943-1255 (fax)
jprezas@wilco.org
CERTIFICATE OF COMPLIANCE
I certify that, after allowable exclusions, the State’s brief contains 1,304
words in compliance with Rule 9.4 of the Texas rules of Appellate Procedure.
__/s/ John C. Prezas______________
John C. Prezas
CERTIFICATE OF SERVICE
I hereby certify that on August 8, 2013, I electronically filed the foregoing
document with the clerk of the court for the Texas Court of Criminal Appeals,
using the efile.txcourts.gov system. Via that system, a “Notice of Electronic
Filing” was sent to Appellee’s appellate attorney of record, Dal Ruggles at
dal@ruggleslaw.com. A copy was also sent by certified mail directly to Appellant,
James Weatherford, TDCJ # 01953853, Middleton Unit, 13055 F.M. 3422,
Abilene, Texas 79601.
_/s/ John C. Prezas_______________
JOHN C. PREZAS
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