White, Erik

PD-1060&1061&1062&1063-15

THE COURT OF CRIMINAL APPEALS OF TEXAS

ERIK WHITE, §
APPELLANT §
§
v. § No. ________________
§
THE STATE OF TEXAS, §
APPELLEE §

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW OF THE
DECISION OF THE COURT OF APPEALS FOR THE SECOND DISTRICT OF
TEXAS IN CAUSE NUMBERS 02-14-00320-CR, 02-14-00321-CR, 02-14-
00322-CR AND 02-14-00323-CR AFFIRMING THE DECISION IN CAUSE
NUMBERS 1316391D, 1330277D, 1330414D AND 1331423D IN THE 371 ST
JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS THE
HONORABLE MOLLEE WESTFALL, PRESIDING.

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

Barry J. Alford
State Bar No. 00783534
1319 Ballinger Street
Ft. Worth, Texas 76102
Telephone: (817) 335-5229
Facsimile: (817) 335-4944
E-mail: barryalford13@gmail.com

Attorney for Appellant
August 17, 2015
IDENTITY OF PARTIES AND COUNSEL

1. Mr. Erik White, Defendant in the trial court, Appellant in this appeal,
TDC #01948718, 3899 Highway 98, Barry B. Telford Unit, New Boston, Texas
75570.

2. Hon. Mollee Westfall, presiding Judge in the trial court, 371st Judicial
District Court of Tarrant County, Texas, 401 West Belknap Street, Fort Worth,
Texas 76196.

3. Hon. Christy Jack, Hon. Kelly Loftus and Hon. Katie A. Woods,
Assistant Criminal District Attorneys, Counsel for the State in the trial court, 401
West Belknap Street, Fort Worth, Texas 76196.

4. Hon. David L. Richards, Counsel for Appellant at trial, 3001 W. 5th
Street, Suite 800, Fort Worth, Texas 76107.

5. Hon. Barry Alford, Counsel for the Appellant on appeal, 1319 Ballinger
Street, Fort Worth, Texas 76102.

6. Hon. Debra Windsor, Assistant Criminal District Attorney, Counsel for
the State on appeal, 401 West Belknap Street, Fort Worth, Texas 76196.

i
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...........................................................i

TABLE OF CONTENTS ........................................................................................ ii

INDEX OF AUTHORITIES .................................................................................. iii

STATEMENT REGARDING ORAL ARGUMENT .............................................iv

STATEMENT OF THE CASE ................................................................................ 1

STATEMENT OF THE PROCEDURAL HISTORY .............................................2

QUESTION PRESENTED FOR REVIEW ............................................................. 4

I. DID THE COURT OF APPEALS PROPERLY DETERMINE THAT
APPELLANT’S TRIAL COUNSEL WAS NOT INEFFECTIVE BY FAILING
TO REQUEST THAT THE TRIALS OF THE CO DEFENDANTS BE
SEVERED AND THAT APPELLANT BE GIVEN A SEPARATE TRIAL
PURSUANT TO TEX. CODE CRIM PROC. 36.09 AND WAS ALSO NOT
INEFFECTIVE BY FAILING TO INQUIRE FURTHER AS TO THE TRIAL
COURT’S RELATION TO A COMPLAINING WITNESS AND WHETHER
THE TRIAL COURT JUDGE SHOULD BE RECUSED.

REASONS FOR REVIEW AND ARGUMENTS AND AUTHORITIES .............5

PRAYER FOR RELIEF ......................................................................................... 15

CERTIFICATE OF SERVICE .............................................................................. 16

OPINION OF THE COURT OF APPEALS ......................................... EXHIBIT A

ii
INDEX OF AUTHORITIES
Bone v. State,
77 S.W.3d 828, 833 (Tex. Crim. App. 2002)............................................7, 8, 12, 13

Garcia v. State,
57 S.W.3d 436 (Tex. Crim. App. 2001)..............................................................7, 12

Goodspeed v. State,
187 S.W.3d 390 (Tex. Crim. App. 2005) .......................................6, 8, 9, 11, 13, 14

Jaynes v. State,
216 S.W.3d 839 (Tex. App. – Corpus Christi 2006, no pet.) ...................8, 9, 13, 14

McMann v. Richardson,
397 U.S. 759, 90 S.Ct 1441, 25 L.Ed.2d 763 (1970) ..........................................7, 12

Rylander v. State,
101 S.W.3d 107 (Tex. Crim. App. 2003)............................................................7, 12

Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ..................6, 8, 9, 11, 13, 14

Thompson v. State,
9 S.W.3d 808 (Tex. Crim. App. 1999) ...............................................................7, 12

Tong v. State,
25 S.W.3d 707 (Tex. Crim. App. 1999)..............................................................8, 13

STATUTES, CODES, AND RULES

Tex. Code Crim. Proc. art. 36.09 .............................................................................5

Tex. Penal Code, § 29.03 ......................................................................................... 1

Tex. Penal Code § 30.02 (c) (2) ............................................................................... 1

Tex. R. App. Proc. 66.3(f) .......................................................................................iv

U.S. Const. amend. VI ..................................................................................7, 12, 14

iii
STATEMENT REGARDING ORAL ARGUMENT

This case addresses important issues regarding whether the Court of

Appeals has so far departed from the accepted and usual course of judicial

proceedings as to call for an exercise of this Court’s power of supervision. Tex. R.

App. P., Rule 66.3(f). Appellant argues that the Court of Appeals erred by holding

that they cannot infer ineffective assistance of counsel and that counsel’s failure to

object or request a severance was not so outrageous that no competent attorney

would have engaged in it. Further, because the record does not offer an

explanation for failing to seek a severance, the Court presumes that trial counsel

made all significant decisions in the exercise of reasonable judgment. Also, they

concluded that competent counsel could have reasonably credited and relied on the

trial judge’s representations that her association with the complaining witness was

limited and that her sentencing decision would not be impacted by that

association. Therefore, trial counsel’s unexplained decision to not inquire further

about the association was not so outrageous that no competent attorney would

have made the same decision.

Because of these important issues, oral argument will greatly aid the Court

and should be granted.

iv
THE COURT OF CRIMINAL APPEALS OF TEXAS

ERIK WHITE, §
APPELLANT §
§ No. ________________
v. §
§
THE STATE OF TEXAS, §
APPELLEE §

APPELLANT’S PETITION FOR DISCRETIONAR REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Appellant, through counsel, files this Petition for Discretionary Review

pursuant to Tex. R. App. P., Rules 66 and 68 on behalf of Appellant urging that

this Court grant his relief on appeal from the judgment of the Court of Appeals in

the Second District of Texas in cause numbers 02-14-00320-CR, 02-14-00321-

CR, 02-14-00322-CR and 02-14-00323-CR from convictions obtained in the 371st

Judicial District Court of Tarrant County, Texas.

STATEMENT OF THE CASE

This case addresses whether Appellant is entitled to relief from his two

convictions for Aggravated Robbery with a Deadly Weapon (Texas Penal Code §

29.03) and his two convictions for Burglary of a Habitation (Texas Penal Code §

30.02 (c) (2)). Specifically, Appellant contends that the Court of Appeals erred in

finding that trial counsel was not ineffective in not seeking a severance in

Appellant’s trial from that of his co-defendant and, further, that trial counsel was

not ineffective in not seeking to have the trial court judge recused based on her
relationship with one of the complaining witnesses against Appellant. It is for

these reasons that Appellant seeks relief.

STATEMENT OF PROCEDURAL HISTORY

Appellant was charged with two Burglary of a Habitation charges, alleged

to have been committed on or about February 25, 2013 and two charges of

Aggravated Robbery with a Deadly Weapon, alleged to have been committed on

or about June 9, 2013 and June 11, 2013. Through counsel, Appellant entered a

plea of guilty to all four charges and had the Court assess punishment. After

hearing the punishment evidence, the Court found him guilty and sentenced him to

twenty (20) years in the Institutional Division of the Texas Department of

Criminal Justice on the two Burglary of a Habitation charges and life in the

Institutional Division of the Texas Department of Criminal Justice on the two

Aggravated Robbery with a Deadly Weapon charges.

Appellant filed timely notice of appeal on all four charges on or about

August 14, 2014 and the cases were sent to the Court of Appeals for the Second

District of Texas. These cases were submitted without oral argument on or about

June 2, 2015. On or about July 30, 2015, the Court of Appeals affirmed the

judgment of the trial court, holding that:

1. The Court of Appeals cannot infer ineffective assistance of counsel

and that counsel’s failure to object or request a severance was not so outrageous

2
that no competent attorney would have engaged in it. Further, because the record

does not offer an explanation for failing to seek a severance, the Court presumes

that trial counsel made all significant decisions in the exercise of reasonable

judgment; and

2. The Court of Appeals concluded that competent counsel could have

reasonably credited and relied on the trial judge’s representations that her

association with the complaining witness was limited and that her sentencing

decision would not be impacted by that association. Therefore, trial counsel’s

unexplained decision to not inquire further about the association was not so

outrageous that no competent attorney would have made the same decision.

3
QUESTION PRESENTED FOR REVIEW

DID THE COURT OF APPEALS PROPERLY DETERMINE THAT
APPELLANT’S TRIAL COUNSEL WAS NOT INEFFECTIVE BY FAILING
TO REQUEST THAT THE TRIALS OF THE CO DEFENDANTS BE
SEVERED AND THAT APPELLANT BE GIVEN A SEPARATE TRIAL
PURSUANT TO TEX. CODE CRIM PROC. 36.09 AND WAS ALSO NOT
INEFFECTIVE BY FAILING TO INQUIRE FURTHER AS TO THE TRIAL
COURT’S RELATION TO A COMPLAINING WITNESS AND WHETHER
THE TRIAL COURT JUDGE SHOULD BE RECUSED?

4
REASONS FOR REVIEW AND ARGUMENT AND AUTHORITIES

DID THE COURT OF APPEALS PROPERLY DETERMINE THAT
APPELLANT’S TRIAL COUNSEL WAS NOT INEFFECTIVE BY
FAILING TO REQUEST THAT THE TRIALS OF THE CO DEFENDANTS
BE SEVERED AND THAT APPELLANT BE GIVEN A SEPARATE TRIAL
PURSUANT TO TEX. CODE CRIM PROC. 36.09 AND WAS ALSO NOT
INEFFECTIVE BY FAILING TO INQUIRE FURTHER AS TO THE
TRIAL COURT’S RELATION TO A COMPLAINING WITNESS AND
WHETHER THE TRIAL COURT JUDGE SHOULD BE RECUSED?

a. Failure to ask for severance of co-defendants

The Court of Appeals held that they cannot infer ineffective assistance of

counsel and that counsel’s failure to object or request a severance was not so

outrageous that no competent attorney would have engaged in it. Further, because

the record does not offer an explanation for failing to seek a severance, the Court

presumes that trial counsel made all significant decisions in the exercise of

reasonable judgment.

Appellant contends that his trial counsel was ineffective because counsel

failed to request that the Court sever the punishment hearings of Appellant and his

co-defendant. Two or more co-defendants who are jointly or separately indicted

or complained against for the same offense or any offense growing out of same

transaction may be, in the discretion of the Court, tried jointly or separately as to

one or more defendants. Tex. Code Crim. Proc. art. 36.09. However, it is

5
incumbent upon trial counsel to request such a severance prior to trial in order to

protect the rights of Appellant.

As a result, Appellant’s trial counsel was constitutionally ineffective and,

but for his trial counsel’s actions, a reasonable probability existed that the result of

the proceeding would have been different. To establish ineffective assistance of

counsel, a defendant must show that: (1) his attorney’s representation fell below

an objective standard of reasonableness; and (2) there is a reasonable probability

that, but for his attorney’s error, the result of the proceeding would have been

different. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005);

Strickland v. Washington, 466 U.S. 668, 684, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984).

A claim of ineffective assistance of counsel must be “firmly founded in the

record” and “the record must affirmatively demonstrate” the meritorious nature of

the claim. Goodspeed v. State, 187 S.W.3d at 392. Direct appeal is usually an

inadequate vehicle for raising such a claim because the record is generally

underdeveloped. Id. This is true with regard to the question of deficient

performance in which counsel’s conduct is reviewed with great deference, without

the distorting effects of hindsight where counsel’s reasons for failing to do

something do not appear in the record. Id.

6
Trial counsel should ordinarily be afforded with an opportunity to explain

his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d

107, 111 (Tex. Crim. App. 2003). Absent such an opportunity, an appellant court

should not find deficient performance unless the challenged conduct was “so

outrageous that no competent attorney would have engaged in it.” Garcia v. State,

57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

The Sixth Amendment to the United States Constitution guarantees the

right to reasonably effective assistance of counsel in criminal prosecutions. U.S.

Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 777 n. 14, 90 S.Ct.

1441, 25 L.Ed.2d 763 (1970). The standard of proof necessary to establish an

ineffective assistance of counsel claim is based upon a preponderance of the

evidence. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson

v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A review of the record

indicates that Appellant’s trial counsel’s failure to inquire of potential jurors as to

this crucial element of the offense fell below the standard as set forth in

Strickland.

No matter the strength of weakness of the State’s case or trial strategy, trial

counsel’s decision to fail to request severance of the two co-defendant’s

punishments hearings was devastating on a review of the record in this case.

7
As a result, the first prong of the Strickland test, under a preponderance of

the evidence test has been met by a review of what appears “firmly within the

record.” Goodspeed v. State, 187 S.W.3d at 392. Even under a highly deferential

review of the defense counsel’s actions, the performance fell below an objective

standard of reasonableness. Bone v. State, 77 S.W.3d at 833; Tong v. State, 25

S.W.3d 707, 712 (Tex. Crim. App. 2000).

Moving on to the second prong of the Strickland test, a review of the record

based on the trial counsel’s inaction therefore shows that, but for this failure to act,

a probability exists that the result of the proceeding would be different. Strickland

v. Washington, 466 U.S. at 684; Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.

– Corpus Christi 2006, no pet.). It is reasonable to believe that, given the

participation of Appellant in the offense for which he was convicted as compared

to his co-defendants, his strategy for defending himself at punishment would vary

greatly with that of his co-defendants.

In fact, while testifying on his own behalf at punishment, Appellant made it

clear how his role differed from that of his co-defendants:

MR. RICHARDS: In what respect is he [Mr. Burns] the

reason that you got into this situation in the first place?

MR. WHITE: Because he was the – the main party, I

would say.
8
MR. RICHARDS: Well then, that gets back to what I was

originally asking you. As far as who was the leader and who were the

follower, you’re now saying he was – he was the leader. He’s the one

that thought this up?

MR. WHITE: Yes, sir.

R. III-199-200.

In sum, a review of the record in this case shows that each co-defendant had

an entirely different level of involvement in the cases for which Appellant pled

guilty and, at a minimum, trial counsel should have made a motion that each co-

defendant’s punishments hearings should be severed. A review of the record

based on the inactions of trial counsel therefore shows that, but for his

ineffectiveness, a probability does exist that the result of this proceeding would be

different. Goodspeed v. State, 187 S.W.3d at 392; Strickland v. Washington, 466

U.S. at 684; Jaynes v. State, 216 S.W.3d at 851. For these reasons, the Court

should grant review on this issue.

b. Failure to request that the trial court judge be recused

The Court of Appeals further held that competent counsel could have

reasonably credited and relied on the trial judge’s representation that her

association with the complaining witness was limited and that her sentencing

decision would not be impacted by that association. Therefore, trial counsel’s
9
unexplained decision to not inquire further about the association was not so

outrageous that no competent attorney would have made the same decision.

Prior to the punishment proceedings, the trial Court informed all parties

involved that she was acquainted with one of the complaining witnesses in the

cases over which she was about to preside. However, after receiving this

information, counsel for Appellant failed to inquire further whether this could

possibly impact the rights of Appellant by going further at this hearing. An

excerpt of that hearing is as follows:

THE COURT: And as to both attorneys, the Court has also

communicated with all parties, I believe it was yesterday, by e-mail, or

maybe the day before, that the Court had received information that one

of the injured parties who – in a burglary, who would be testifying

today, was someone who was known to this Court, to the Judge

personally, from church. Not known well or a person with whom the

Court has – this Judge has socialized, but I do know this person from

church. And both Mr. Richards and Mr. McKinney are aware of that

fact and have decided to proceed with that fact known and understood.

MR. MCKINNEY: That is correct.

MR. RICHARDS: Yes, Your Honor.

10
THE COURT: And the Court will not be taking any

personal association or knowledge of a person involved in this case

into account to either increase or decrease the sentence, will not have

an impact on this Court’s decision.

R. III-12.

However, despite the Court’s assurances, it is incumbent upon trial counsel

to inquire further into this matter given the relationship that a complaining

witnesses’ testimony can bear on the punishment assessed by the trial Court. As a

result, Appellant’s trial counsel was constitutionally ineffective and, but for his

trial counsel’s actions, a reasonable probability existed that the result of the

proceeding would have been different. To establish ineffective assistance of