ACCEPTED
03-15-00385-CR
8150331
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/9/2015 9:11:37 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00385-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
THIRD DISTRICT OF TEXAS AT AUSTIN
12/9/2015 9:11:37 AM
JEFFREY D. KYLE
Clerk
***************************************************
CAUSE NO. 72,941
IN THE 27TH JUDICIAL DISTRICT OF
BELL COUNTY, TEXAS
***************************************************
KARL LEE WIGGINS APPELLANT
VS
THE STATE OF TEXAS APPELLEE
***************************************************
APPELLANT’S BRIEF
___________________________________________________
APPEAL OF JUDGMENT IN CAUSE NO. 72,941
FROM THE 27TH JUDICIAL DISTRICT
OF BELL COUNTY, TEXAS
___________________________________________________
NO ORAL ARGUMENT REQUESTED
JAMES H. KREIMEYER
ATTORNEY FOR APPELLANT
P.O. BOX 727
BELTON, TEXAS 76513
(254) 939-9393
(254) 939-2870 FAX
T.S.B. #11722000
jkreime@vvm.com
IDENTITY OF PARTIES AND COUNSEL
Judge at Trial: Hon. John Gauntt
27th Judicial District
P.O. Box 324
Belton, Texas 76513
Prosecutors: Nelson Barnes &
Terry Clark
Asst. District Attorneys
P.O. 540
Belton, Texas 76513
Defense Attorneys Joseph Wiener, Jr.
at Hearing Attorney at Law
P.O. Box 298
Belton, TX 76513
Bob Barina
Attorney at Law
455 E. C.T.Expr. Ste.104
Harker Heights, TX 76548
Attorney for Appellant: James H. Kreimeyer
Attorney at Law
P.O. Box 727
Belton, TX 76513
Attorney for Appellee: Bob Odom
Asst. District Attorney
P.O. Box 540
Belton, Texas 76513
Appellant: Karl Lee Wiggins
TDCJ#02014439
Bill Clements Unit
9601 Spur 591
Amarillo, TX 79107-9606
ii
TABLE OF CONTENTS
PAGE NO.
IDENTITY OF PARTIES AND COUNSEL. . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . .iii
INDEX OF AUTHORITIES. . . . . . . . . . . . .iv
STATEMENT OF THE CASE. . . . . . . . . . . .1-2
ISSUES PRESENTED. . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . 3-5
SUMMARY OF THE ARGUMENT. . . . . . . . . . . .5
ARGUMENT . . . . . . . . . . . . . . . . . 6-12
PRAYER. . . . . . . . . . . . . . . . . . . .13
CERTIFICATE OF COMPLIANCE. . . . . . . . . . 14
CERTIFICATE OF SERVICE. . . . . . . . . . . .15
iii
INDEX OF AUTHORITIES
CASES: PAGE NO.
Trevino v. Thaler, 133 S. Ct. 1911, 1913,
185 L. Ed. 2d 1044 (2013). . . . . . . . . 5-6
Milburn v. State, 15 S.W.3d 267, 270
(Tex. App. Houston [14th Dist] 2000,
pet. ref’d.). . . . . . . . . . . . . . . .7-8
Torres v. State, No. 01-95-00862-CR, 2000
WL 1877641(Tex. App. Houston [1st Dist.]
pet. ref’d)(mem. Op., not designated for
publication). . . . . . . . . . . . . . . 9-11
Strickland v. Washington, 446 U.S. 668, 694,
(1984). . . . . . . . . . . . . . . . . . . 12
iv
NO.03-15-00385-CR
IN THE
COURT OF APPEALS
THIRD DISTRICT OF TEXAS
AT AUSTIN
*****************************************************
KARL LEE WIGGINS APPELLANT
VS.
THE STATE OF TEXAS APPELLEE
******************************************************
APPELLANT’S BRIEF
STATEMENT OF THE CASE
Appellant, KARL LEE WIGGNINS, on March 30, 2015
entered a plea of guilty to the offense of murder.
(R.R. IV at 9-10)
On May 28, 2015 the trial court found appellant
guilty, and assessed appellant’s punishment at life
in the Texas Department of Criminal Justice—
Institutional Division. (R.R. AV5 at 12)
1
The trial court denied a motion for new trial on
the record at the time of the hearing. (R.R. VI at
53) A supplemental notice of appeal was filed on
behalf of appellant on August 5, 2015.
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument.
ISSUE PRESENTED
Appellant’s trial attorneys rendered ineffective
assistance of counsel at punishment by not presenting
the testimony of the Texas Department of Public
Safety Forensic Scientist concerning the malfunction
of the quarter-cock safety noted by the scientist
during test firing of the alleged murder weapon.
(R.R. VI at DX 1)(R.R. VI at 18)
2
STATEMENT OF FACTS
During a hearing on appellant’s motion for new
trial, appellant’s attorney Joseph C. Wiener was
called by appellant. (R.R. VI at 14) A ballistics
report from the Texas Department of Public Safety
Crime Laboratory, Defendant’s Exhibit One, was shown
to Mr. Wiener concerning a malfunction of the
quarter-cock safety noted during test firing. (R.R.
VI at 17)(R.R. VII at Def. Ex. 1) Mr. Wiener
acknowledged the safety that was not working properly
could have caused the gun to go off accidentally.
(R.R. VI at 18)
Co-counsel, Bobby Barina, appointed by the trial
court on March 9, 2015 (Cl. R. at 24) testified at
the motion for new trial. (R.R. VI at 31) When
questioned about the Texas Department of Public
Safety (DPS) Crime Laboratory report on the
ballistics of the weapon, Barina recalled the State
had a gentleman from a local gun shop who testified
about testing the weapon for trigger pull. The
3
witness found the trigger pull to be heavy. Mr.
Barina agreed he had seen the DPS ballistic report.
(Def. Ex. 1) Mr. Barina recalled the gun shop owner
called by the State did not have a problem with the
safety on the weapon. When asked if he explored
getting the DPS expert, Mr. Barina allowed as how
that was one of the things Mr. Wiener was to handle.
(R.R. VI at 36) Mr. Barina agreed he knew what was
in the DPS report and discussed it with Appellant
and Mr. Wiener. At that discussion it was apparently
decided to look into the report only if the case went
to trial. (R.R. VI at 38)
During the punishment hearing on May 28, 2015
the State called David Cheadle, employed at Guns
Galore (R.R. V at 10) as manager. There is not a
gunsmith employed at the store. Mr. Cheadle does
simple repairs. (R.R. V at 11) Mr. Cheadle was
brought a weapon, by the district attorney’s
investigator. The weapon was identified as State’s
Exhibit 2, a .25 Tangoglio Armalite handgun. (R.R. V
4
at 12)(R.R. VII at State’s Ex. 2) Being asked to test
the trigger pull of the weapon, Cheadle related the
trigger pull on State’s Ex. 2 was not a hair trigger
[3½ pounds]. (R.R. V at 13) The tested trigger pull
on State’s Ex. 2 was 7¼ pounds. (R.R. V at 15) When
examined by appellant, Cheadle related he had not
been made aware of the safety problem found by the
DPS lab and was only testifying about the trigger
pull. (R.R. V at 16)
SUMMARY OF THE ARGUMENT
By not presenting to the trial court the
evidence of the Texas Department of Public
Safety scientist’s conclusions concerning the
firearm alleged to have been used, trial counsel
for appellant rendered ineffective assistance of
counsel at the punishment phase of appellant’s
plea of guilty.
5
ARGUMENT
In argument on the motion for new trial, it was
conceded by appellant that counsel was ineffective,
had not be shown. This illustrates the problem
arising from requiring a motion for new trial before
the appellate record is available; as pointed out by
the Supreme Court of the United States in Trevino v.
Thaler. In Trevino, the Supreme Court noted: Texas
procedures make it nearly impossible for an
ineffective-assistance-of-trial-counsel claim to be
presented on direct review. The nature of an
ineffective-assistance claim means that the trial
record is likely to be insufficient to support the
claim. And a motion for a new trial to develop the
record is usually inadequate because of Texas rules
regarding time limits on the filing, and the
disposal, of such motions and the availability of
trial transcripts. Trevino v. Thaler, 133 C. Ct.
1911, 1913, 185 L. Ed. 2d 1044 (2013)
6
Had appellant known of the trigger pull issue at
the motion for new trial hearing, a better record
could have been made concerning the firearm alleged
to have been the instrumentality causing the death
of the complainant. The trial attorneys could have
been questioned more thoroughly about the fact the
trial attorneys for appellant did not obtain and
present the evidence of the DPS Crime Lab expert to
explain the safety problem and determine the accuracy
of the trigger pull evidence from the gun store
manager.
Appellant cannot question the effectiveness of
entering a plea of guilty or the finding of guilty
by the trial court. The issue is: Were his trial
attorneys ineffective by not securing the testimony
and opinions of the DPS Crime Lab firearms expert to
counteract the testimony of the gun store manager?
When asked about this testimony, Mr. Barina
deferred to his co-counsel. (R.R. VI at 37) Mr.
Barina’s only explanation concerning the DPS Crime
7
Lab report was, basically, if there was not a plea,
then a request for additional time would be made.
This conversation was on March 30, 2015. The
punishment hearing in May of 2015 was where the issue
of the trigger pull was stressed by the State as
being a conscious effort by appellant to kill the
complainant. (R.R. AV5 at 6)
In Milburn v. State, 15 S.W.3d 267, (Tex. App.
Houston [14th Dist] 2000, pet. ref’d.) Milburn’s
counsel failed to contact a number of potential
favorable witnesses for the punishment phase of
Milburn’s trial. The Houston Court of Appeals noted
the sentencing process consists of weighing
mitigating and aggravating factors, and making
adjustments in the severity of the sentence
consistent with this calculus. In that case,
Milburn's trial counsel presented no evidence of
mitigating factors for the jury to balance against
the aggravating factors presented by the State.
Indeed, Milburn's counsel performed no investigation
8
into any possible mitigating factors and failed to
contact even a single family member or friend,
despite the availability of such mitigation
evidence. Milburn, 15 S.W.3d at 270. (Tex. App. 2000)
Although appellant’s trial counsel put on some
testimony at punishment, nothing was done to rebut
the firearm evidence given by the gun store manager.
The firearm evidence as to trigger pull was relied
upon by the State in the final remarks to the trial
court to show evidence of seven (7) pounds of trigger
pull to rule out accidental or unintentional firing
of the weapon. This was despite the evidence of the
victim’s common law wife and sister of appellant,
Elizabeth Gallagher, that appellant cried: “I didn’t
mean to do it. I didn’t mean to do it.” (R.R. V at
35) The testimony of the DPS expert would have
injected the issue of the problem with the quarter-
cock safety giving consideration of a faulty safety
as supporting appellant’s not meaning to do it. This
evidence was not produced by trial counsel taking
9
the position that evidence would only have been
presented in the event of a trial. (R.R. VI at 38)
The Court’s attention is directed to Torres v.
State, No. 01-95-00862-CR, 2000 WL 1877641 (Tex. App.
Houston [1st Dist.] pet. ref’d) (mem. op., not
designated for publication). There, Torres and his
companion Burnett robbed and shot the victim. The
shooting was with a 9mm pistol. Torres maintained he
was not the shooter. The pistol attributed to Torres
was not the weapon that shot the victim. After an
open plea to aggravated robbery, Torres alleged his
attorney was ineffective at the punishment phase of
his plea because he did not present the ballistic
evidence showing Torres’ weapon did not fire the
shots at the victim. The defense attorney for Torres
testified he saw the ballistics report and even
discussed it with the prosecutor, but did not think
it was relevant because the prosecutor suggested the
appellant and Burnett could have switched guns after
10
the shooting, when they drove off in the car
together. Torres, 2000 WL 1877641, at *4.
In reversing and remanding for a new punishment
hearing, the Court of Appeals pointed out: Failure
to present mitigating evidence at punishment is
ineffective assistance unless counsel made a
reasonable decision to forego presentation of
mitigating evidence after evaluating available
testimony. Even though defense counsel investigated
the ballistics evidence, it was unreasonable for him
to decide not to present the report at the punishment
hearing. This evidence would have helped the Torres'
only defense-that he was not the shooter. Torres,
2000 WL 1877641, at *4
The same reasoning should be applied to
appellant. The fact is, the weapon had a safety
problem and the DPS scientist is certainly more
qualified to express opinions about firearms than
the gun store manager used by the State. Had trial
counsel subpoenaed the state firearms expert making
11
the trial court aware of the safety problem with the
firearm, the trial court would probably not have seen
fit to impose the maximum sentence. When this is
coupled with the emphasis put on the trigger pull by
the State to show a conscience effort by appellant
to kill the complainant, even though appellant
immediately after the shot stated he did not mean to
do it, a new punishment hearing should be granted
appellant.
The defendant must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability
sufficient to undermine confidence in the
outcome. Strickland v. Washington, 466 U.S. 668,
694, (1984) Appellant has shown the probability
that less than the maximum sentence would have
been imposed, if the trial judge had all the
mitigating facts before him.
12
PRAYER
Wherefore, premises considered, appellant prays
the Court of Appeals to reverse and remand for a new
punishment hearing and for any other relief to which
appellant may be entitled.
Respectfully submitted,
/s/ James H. Kreimeyer
James H. Kreimeyer
Counsel for Appellant
P.O. Box 727
Belton, TX 76513
254-939-9393 Fax:939-2870
TSB#11722000
jkreime@vvm.com
13
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with
the length limitations of Texas Rule of Appellate
Procedure 9.4(i)(3) because this brief contains
1,613 words, excluding the parts of the brief
exempted by Texas Rule of Appellate Procedure
9.4(i)(1); a number which is less than the 15,000
words allowed under Rule 9.4(i)(2)(B).
I also certify that this brief complies with the
typeface requirements of Texas Rule of Appellate
Procedure 9.4(e) because this brief has been written
with a conventional typeface using a 14-point font
(with footnotes no smaller than 12-points) using
Microsoft Office Word 2010 (version 14), in Courier
New font.
/s/ James H. Kreimeyer
JAMES H. KREIMEYER
14
CERTIFICATE OF SERVICE TO OPPOSING COUNSEL
This is to certify a true copy of the foregoing
Appellant’s Brief was furnished to Bob Odom Assistant
District Attorney for Bell County, P.O. Box 540,
Belton, Texas 76513 on the 9th day of December, 2015.
/s/ James H. Kreimeyer
JAMES H. KREIMEYER
CERTIFICATE OF SERVICE TO APPELLANT
This is to certify a true copy of the brief,
mailed to Appellant, Karl Lee Wiggins, Bill Clements
Unit, 9601 Spur 591, Amarillo, TX 79107 on the 9th
day of December, 2015.
/s/ James H. Kreimeyer
JAMES H. KREIMEYER
15