ACCEPTED
01-15-00369-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/3/2015 2:37:55 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00369-CR
FILED IN
1st OF
IN THE COURT OF APPEALS FOR THE FIRST DISTRICT COURT OF APPEALS
TEXAS
HOUSTON, TEXAS
AT HOUSTON, TEXAS
8/3/2015 2:37:55 PM
CHRISTOPHER A. PRINE
Clerk
DANIEL WAYNE TOVAR
Appellant
vs.
THE STATE OF TEXAS
Appellee
On appeal from the 20th Judicial District Court of Milam County, Texas
The Honorable John Youngblood, Judge Presiding
Cause No. 23522
APPELLANT’S BRIEF
Counsel of Record;
Tyler Pennington
State Bar No. 24076617
Pennington Law PLLC
106 S. Harris St. Suite 125
Round Rock, TX 78664
PH: (512) 255-2733
FAX: (866) 736-3690
tylerpenningtonlawpIlc.net
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
PARTIES TO THE JUDGMENT:
APPELLANT: Daniel Wayne Tovar
Holliday Unit
295 I.H. 45 North
Huntsville, TX 77320
APPELLEE; W.W. Torrey
District Attorney
District Attorney’s Office of Milarn County, Texas
204 N. Central
Cameron, TX 76520
PH: (254) 697-7013
FAX: (254) 697-7016
wwtorreymilamcounty.net
PRESIDING JUDGE: The Honorable John Youngblood
DEFENSE TRIAL COUNSEL: Perry D. Cortese
P.O. Box 883
Little River, TX 76554
TRIAL PROSECUTORS: W.W. Torrey
District Attorney Milam County, Texas
204 N. Central
Cameron, TX 76520
APPELLANT COUNSEL: Tyler Pennington
Pennington Law PLLC
106 5. Harris St., Suite 125
Round Rock, TX 78664
PH: (512) 255-2733
FAX: (866) 736-3690
tyIerpenningtonlawplIc.net
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES iii-iv
STATEMENT OF CASE v-vi
STATEMENT REGARDING ORAL ARGUMENT vi
ISSUE PRESENTED vi
TRIAL COUNSEL’S REPRESENTATION AT APPELLANT’S
SENTENCING HEARING WAS DEFICIENT AND THE DEFICIENCY
WAS SO SERIOUS THAT IT PREJUDICED APPELLANT’S DEFENSE
AND DENIED APPELLANT’S RIGHT TO EFFECTIVE ASSISTANCE
OF COUNSEL
STATEMENT OF FACTS 1-3
SUMMARY OF THE ARGUMENT 3
ARGUMENT AND AUTHORITIES 4-Il
PRAYER 11
CERTIFICATE OF SERVICE 12
CERTIFICATE OF COMPLIANCE WITH WORD LIMIT 12
11
INDEX OF AUTHORITIES
TEXAS CASES
Haynes v. State, 790 S.W.2d 824 (Tex. Crirn. App. 1990) 4
Ex Parte Torres, 943 S.W.2d 469, (Tex. Crim. App. 1997) 4
Ex Parte Fe/ton, 815 S.W.2d 733 (Tex. Crirn. App. 1991) 4, 11
Robinson v. State, 16 S.W.3d 808 (Tex. Crim. App. 2000) 5
Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993) 5
Woods v. State, 59 S.W.3d 833 (Tex. App — Texarkana, 2001, pet. granted)
5,7,8
Hernandez v. State, 726 S.W.2d. 53 (Tex. Crim. App. 1986) 6
In the Matter ofR.D.B, A Juveni/e, 20 S.W.3d 255 (Tex. App — Texarkana,
2000) 6, 7, 8
[14th
In re G.MP., 909 S.W. 2d 198 (Tex. App. — Houston Dist. 1995, no writ) 10
..
FEDERAL CASES
Powel/ v. A/abama, 287 U.S. 45 (1932) 4
McMann v. Richardson, 397 U.s. 759 (1970) 4
Anders v. Caflfornia, 386 U.S. 738 (1967) 4
Strickland v. Washington, 466 U.s. 668 (1984) 5, 6, 11
(5th
Moore v. Johnson, 194 F.3d 586 Cir. 1999) 7
Wigginsv. Smith, etal. 539 U.S. 510 (2003) 9
III
STATUTES AND RULES
TEX. PEN. CODE §22.0 1 v
U.S. CONST. AMEND VI 4, 11
U.S. CONST. AMEND XIII 4, 11
TEX. CONST. ART. I, § 10 4,11
TEX. R. APP. P. §33.1(a) 5
TEX.R.EVIDENCE 405(a)(1) 10
iv
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Daniel Wayne Tovar, Appellant, and respectfully submits
this brief alleging that his trial counsel’s performance at the sentencing hearing on
his Motion to Proceed with Adjudication was ineffective.
STATEMENT OF THE CASE
On February 19, 2013, Daniel Wayne Tovar entered a plea agreement to
receive three years deferred adjudication probation for a third-degree felony assault
family violence —impeding breath or circulation under TEX. PEN. CODE § 22.01.
The Court entered an Order of Deferred Adjudication on the same date. (Clerk’s
Record Volume 1, pages 9-22). On November 7, 2014 the State filed a Motion to
Proceed with Adjudication alleging that Mr. Tovar had violated various conditions
of his three-year deferred adjudication. (Clerk’s Record Volume 1, pages 34-38).
Mr. Tovar entered into a plea of true to the allegations in the Motion to
Proceed with Adjudication on February 12, 2015, and with assistance of trial
counsel elected to go to the Court for sentencing. (Clerk’s Record Volume I, pages
47-49).
The sentencing hearing was set for March 13, 2015. (Reporter’s Record
Volume 3, page 7, line 9). At the conclusion of the sentencing hearing the Court
assessed his punishment at eight years in the Texas Department of Corrections
V
(Clerk’s Record Volume 1, pages 52-52). Mr. Tovar, through his trial counsel
filed a Motion for New Trial on March 25, 2015 and Notice of Appeal on March
26, 2015. (Clerk’s Record Volume 1, pages 57-58 and page 55).
STATEMENT REGARDING ORAL ARGUMENT
Oral argument will not aid the court’s decisional process in this appeal
ISSUE PRESENTED
TRIAL COUNSEL’S REPRESENTATION AT APPELLANT’S
SENTENCING HEARING WAS DEFICIENT AND THE DEFICIENCY
WAS SO SERIOUS THAT IT PREJUDICED APPELLANT’S DEFENSE
AND DENIED APPELLANT’S RIGHT TO EFFECTIVE ASSISTANCE
OF COUNSEL
vi
STATEMENT OF THE FACTS
Daniel Wayne Tovar was on a three-year deferred adjudication for third-
degree felony assault family violence —impeding breath or circulation. The State
filed a Motion to Proceed with Adjudication alleging various violations of his
deferred adjudication. Mr. Tovar pled true to the allegations in the State’s Motion
to Proceed with Adjudication and then proceeded to sentencing for the trial court to
assess his punishment. (Clerk’s Record Volume 1, pages 9-22, 34-38 and 47-49).
Prior to the sentencing hearing a Pre-Sentencing Investigation (PSI) was
conducted by Mrs. Lekethia Sims, Mr. Tovar’s probation officer. (Reporter’s
Record Volume 4, page 4, lines 11-12). The State asked the Court to take notice of
the PSI, and they also called as witnesses Chief Thomas Harris of Rockdale, Texas
Police Department, and Lieutenant J.D. Newlin of Rockdale, Texas Police
Department. (Reporter’s Record Volume 4, page 5, lines 1-4).
Both Chief Harris and Lieutenant Newlin testified on the State’s direct
examination that Mr. Tovar had a “bad” reputation in the community for being
peaceful and law abiding. Mr. Tovar’s trial counsel did not conduct any cross-
examination of either Chief Harris or Lieutenant Newlin. (Reporter’s Record
Volume 4, page 6, lines 5-10 and page 7, lines 8-12).
Mr. Tovar testified on direct examination through his trial counsel that he
has had both drug and alcohol issues for the past six or seven years. (Reporter’s
1
Record Volume 4, page 8, lines 8-14). Mr. Tovar also testified that he has
discussed attending rehab with his probation officer Mrs. Sims. He further testified
that he believes a rehab program would be good for him (Reporter’s Record
Volume 4, page 8, lines 16-23). On the State’s cross-examination ofMr. Tovar,
they elicited that Mrs. Sims had previously discussed rehab with Mr. Tovar and
that he was not interested in attending the rehab. (Reporter’s Record Volume 4,
page 11, lines 3-9). Mr. Tovar testified on cross-examination by the State that he
was unaware of Mrs. Sims’ recommendation of a sentence in the Texas
Department of Corrections in the PSI. (Reporter’s Record Volume 4, page 11, lines
22-25).
Mr. Tovar’s trial counsel argued in closing that Mr. Tovar has had ongoing
problems with drugs and alcohol since he was about fifteen-years old. (Reporter’s
Record Volume 4, page 13, lines 20-22). He further argued that Mr. Tovar has
some limitations due to learning disabilities. (Reporter’s Record Volume 4, page
14, lines 5-7). The State focused a majority of their closing argument on Mrs.
Sims’ PSI by pointing out specific pages in the PSI detailing Mr. Tovar’s lengthy
criminal history. (Reporter’s Record Volume 4, page 14, lines 18-25 and page 15,
lines 1-25). Neither Mr. Tovar nor the State called Mrs. Sims as a witness.
The judge stated in his ruling stated that he “had hoped that Mrs. Sims
would testify and [he] could ask about it”. The Court further stated that Mr. Tovar
2
represented in the sentencing hearing that he had never been provided a previous
opportunity for treatment, but that the PSI stated that he had previously attended
treatment which resulted in him being terminated from the program after thirty
days. Finally, the Court made the determination that Mr. Tovar was terminated
from the program because he did not want to be in treatment and just wanted to do
his jail time. The Court came to these conclusions upon reviewing allegations in
the PSI. (Reporter’s Record Volume 4, page 16, lines 4-14). The Court agreed
with Mr. Tovar’s trial counsel that Mr. Tovar had a problem with substance abuse.
(Reporter’s Record Volume 4, page 16, lines 19-20). Neither Mr. Tovar nor the
State called any substance abuse witnesses.
Based upon the above evidence at the sentencing hearing the trial Court
assessed Mr. Tovar’s sentence at twenty-four months in the Texas Department of
Corrections for the state jail felony burglary of a building and eight years in the
Texas Department of Corrections on the third-degree felony assault family
violence —impeding breath or circulation. (Reporter’s Record Volume 4, page 17,
lines 10-15).
Summary of the Argument
Issue: Trial counsel’s performance at Appellant’s sentencing hearing was
deficient and the deficiency was so serious that it prejudiced Appellant’s defense
and denied Appellant’s right to effective assistance of counsel.
3
Argument and Authorities
The burden of proof in an ineffective assistance of counsel claim rests with
the defendant who must prove ineffective assistance of counsel by a preponderance
of the evidence. Haynes v. State, 790 S.W.2d 824, 827 (Tex. Crim. App. 1990). In
order to determine whether the defendant has met his burden, the reviewing court
looks to the totality of circumstances of the case in evaluating the reasonableness
of the attorney’s conduct. Lx Parte Fthon, 815 S.W.2d, 733, 735 (Tex. Crim. App.
1991).
The right to assistance of counsel is guaranteed by the Sixth and Fourteen
Amendments of the United States Constitution as well as the Article 1, Section 10
of the Texas Constitution. The right to be represented by counsel is by far the most
important of a defendant’s constitutional rights because it affects the ability of a
defendant to assert myriad other rights. Powell v. Alabama, 287 U.S. 45, 53
(1932).
A defendant is constitutionally entitled to have effective counsel acting in
the role of an advocate. Anders v. California, 386 U.S. 738, 743 (1967). This right
to assistance of counsel has long been understood to include a “right to effective
assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, n. 14(1970).
In most cases, a writ of habeas corpus is the preferred method for raising
ineffective assistance of counsel claims. Ex Parte Torres, 943 S.W.2d 469, 592-93
4
(Tex. Crim. App. 1997). This is not to say that a claim of ineffective assistance of
counsel cannot be raised on direct appeal. Reyes v. State, 849 S.W.2d 812, 815
(Tex. Crim. App. 1993). The direct appeal court has jurisdiction to hear ineffective
assistance of counsel claims. Woods v. State, 59 S.W.3d 833, 835 (Tex. App —
Texarkana, 2001, pet. granted). Texas Rules of Appellate procedure generally
require that in order to raise a complaint on appeal the complaint must be
preserved in the trial court by asserting a timely objection or motion. TEX. R.
APP. P. §33.1(a). However, ineffective assistance of counsel claims are exempted
from this rule of error preservation. Robinson v. State, 16 S.W.3d 808, 812 (Tex.
Crim. App. 2000).
The court in Strickland v. Washington set forth the groundwork for
addressing an ineffective assistance of counsel claim. Stricklandv. Washington,
466 U.S. 668 (1984). To prove a claim of ineffective assistance of counsel, the
defendant must show by the preponderance of the evidence that his counsel’s
representation was deficient and that the deficient performance was so serious that
it prejudiced his defense so as to provide a fair trial. Id at 687-696. The proper
standard for judging attorney performance is that the assistance should be
reasonably effective considering all the circumstances. The defendant must show
that counsel’s representation fell below an objective standard of reasonableness. Id
at 687-691. The defendant must then show that there is a reasonable probability
S
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different to prove that the deficient performance prejudiced the
defendant.
The state of Texas has applies the Strickland test and has recognized that it
applies to all stages of the criminal trial. In fact, Strickland applies to a claim of
deficient attorney performance at a non-capital sentencing hearing. See [fernandez
v. State, 726 S.W.2d. 53, 56 (Tex. Crim. App. 986).
In the Matter ofR.D.B recognized that defense counsel’s failure to get a
mental health expert was ineffective. In the Matter ofR.D.B, A Juvenile, 20
S.W.3d 255 (Tex. App — Texarkana, 2000). In R.D.B, the State called the only
witnesses who testified at the release or transfer hearing was Leonard Cucolo,
program administrator for the Texas Youth Commission. This witness testified that
R.D.B. has a brain injury. The witness then testified regarding a psychological
evaluation conducted by Larry’ Reue and Reue’s conclusion that most of R.D.B.’s
behavior was a result of anti-social values and characteristics rather than the brain
disorder. Cucolo testified that in Reue’s opinion R.D.B was at a high risk of re
offending. Id at 256-257.
The State relied heavily on this testimony at sentencing but did not actually
call any of the experts involved with the report. R.D.B.’s counsel did not call any
of the individuals involved in the report, nor did they call their own expert. The
6
court in R.D.B determined that if defense counsel would have called an expert
witness it would have required the State to call their own mental health expert to
testify. Defense counsel would then have been able to better test the conclusions
contained in the report. The court in R.D.B. found defense counsel ineffective. Id at
261.
In JJ’oods v. State the record contained a substantial amount of information
regarding Woods’ previous mental health history. Woods i State, 59 S.W.3d 833
(Tex. App — Texarkana, 2001, pet. granted). The Court in Woods determined that
based on the facts, it was defense counsel’s obligation to request a court-appointed
mental health expert in order to render effective assistance of counsel. Id at 838.
Defense counsel had previously filed a motion for psychiatric examination, where
counsel refers to Woods’ past psychiatric history, therefore counsel was aware of
Woods mental health histon’. Idat 836. See also Moore v. Johnson, 194 F.3d 586
(5th
Cir. 1999) (finding defense counsel ineffective for failing to investigate,
develop, or present mitigating evidence at punishment despite evidence of
defendant’s brain damage.).
Mr. Tovar’s case is similar to Woods in that Tovar’s counsel knew of his
past history of substance and alcohol abuse, as evidenced by the following line of
questioning:
“Q. Okay. An one -- how long has drugs been an issue in your life?
7
A. The last maybe six, seven years.
Q. (BY MR. CORTESE) How about alcohol? Has alcohol been an issue in
your life, too?
A. Uh-huh, since I was a teenager.” (Reporter’s Record Volume 4, page
8, lines 8-15).
Additionally, Mr. Tovar’s counsel argued in closing that “he’s had an
ongoing problem with drugs and alcohol since he was about 15 years old.”
(Reporter’s Record Volume 4. page 13, lines 20-22). He further argued that Mr.
Tovar has some learning disabilities, and does not read well which causes
limitations. (Reporter’s Record Volume 4, page 14, lines 5-7). As in Woods, Mr.
Tovar’s counsel clearly was aware of his history of substance and alcohol abuse
along with his mental health history. However, he failed to request a court
appointed substance abuse or mental health expert to testi& at sentencing, and, like
in Woods, his failure to do so rendered his representation ineffective.
Much like in R.D.B, the State in Mr. Tovar’s case reLied heavily on a pre
sentence investigation conducted by his probation officer, Mrs. Sims. However,
unlike in R.D.B., neither Mr. Tovar’s counsel nor the State called anyone involved
with the report. In fact, the Court in Tovar even mentioned that it would had hoped
that Mrs. Sims would have testified. (Reporter’s Record Volume 4, page 16, lines
B
5-7). The Court also agreed with Mr. Tovar’s counsel that he had a problem with
substance abuse. (Reporter’s Record Volume 4, page 14, lines 19-20).
Mr. Tovar’s counsel not only failed to adequately challenge Mrs. Sims’
report at the sentencing hearing, but the record is void of any investigation counsel
conducted in order to verify or to challenge the statements contained in the report.
Furthermore, there is nothing in the record, which suggests that counsel did an
investigation independent of the PSI. See Wiggins v. Smith, et aL 539 U.S. 510
(2003) (finding counsel ineffective where the only investigation into mitigation
evidence was a PSI and department of social services records. The Court found
counsel’s failure to conduct investigation independent of the PSI and social
services records to be ineffective.).
Failure of Mr. Tovar’s counsel to call Mrs. Sims to testify was deficient and
prejudiced Mr. Tovar’s defense of presenting a treatment option rather than a
prison option for sentencing. Had Mr. Tovar’s counsel called Mrs. Sims and
retained a court appointed expert to review the report and to testify to Mr. Tovar’s
substance abuse, alcohol abuse, and mental health history, it would have required
the State to call its own mental health experts to testify and would have enabled
defense counsel to better test the conclusions contained in the report. See R.D.B at
261.
9
Not only did Mr. Tovar’s counsel fail to get a court appointed expert to
review the PSI and to testify’, but he failed to challenge reputation testimony by
Chief Harris or Lieutenant Newlin who both stated that Mr. Tovar’s reputation for
being law abiding was “bad”. (Reporter’s Record Volume 4, page 5, lines 1-4).
Both Chief Harris and Lieutenant Newlin failed to testify’ as to how they
specifically had knowledge of Mr. Tovar’s reputation and Mr. Tovar’s counsel
failed to cross-examine both Harris and Newlin on how they formed the basis of
[14th
this opinion. See In re G.MP.. 909 S.W2d 198, 209 (Tex. App. — Houston
Dist. 1995, no writ) and TEX. R. EVIDENCE 405(a)(1). Furthermore, Mr.
Tovar’s counsel called no witnesses to rebut the claims made by Harris and
Newl in.
Due to the above, Mr. Tovar has shown by a preponderance of the evidence
that his counsel’s performance was deficient and this deficient performance
prejudiced Mr. Tovar and deprived him of a fair trial. But for Mr. Tovar’s trial
counsel failing to request a court appointed expert or calling Mrs. Sims as a
witness, the Court would have been able to hear more detailed evidence of Mr.
Tovar’s substance abuse and mental health history along with why a treatment
option versus a lengthy prison sentence may have been more appropriate.
Additionally, but for Mr. Tovar’s counsel failing to challenge or rebut the
reputation evidence by Chief Harris and Lieutenant Newlin, the Court could have
10
assessed whether the reputation evidence was credible and would have likely heard
not only negative evidence presented by the State of Mr. Tovar’s character, but
positive evidence of his character as well. There is a reasonable probability that
had counsel presented the above evidence it would have caused a different result in
Mr. Tovar’s sentencing. A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the proceeding. See Strickland at 691-696.
In reviewing the totality of circumstances including the failure to call the
PSI witness, failure to get a court appointed expert, and failure to challenge
reputation evidence, Mr. Tovar’s counsel’s performance was affirmatively not
reasonable. See Ex Pane Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991).
Therefore, Mr. Tovar’s right to counsel as guaranteed by the Sixth and Fourteen
Amendments of the United States Constitution as well as the Article 1, Section 10
of the Texas Constitution was violated.
PRAYER
WHEREFORE, PREMISIS CONSIDERED, Appellant Daniel Wayne
Tovar, asks the court to reverse the sentence on this cause and remand to the trial
court for a new sentencing hearing.
11
CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that a true and correct copy of this
brief was served by mail to counsel for the State, W.W. Torrey, District Attorney,
Milam County District Attorney’s Office 204 N. Central Cameron, TX 76520, PH:
(254) 697-7013, FAX: (254) 697-7016 on August 3,2015 via facsimile
transmission.
Tyler Pennington
Attorney for Appellant
CERTIFICATE OF COMPLIANCE WITH WORD LIMIT
The undersigned counsel represents that they have relied on the word count
tool in the Word document and that this brief is a total of 2606 words.
Tyler Pennington
Attorney for Appellant
12