ACCEPTED
03-15-00392-CR
6153335
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/21/2015 11:24:31 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00392-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
TEXAS AT AUSTIN, TEXAS 7/21/2015 11:24:31 AM
JEFFREY D. KYLE
Clerk
********
TYLER DAVID EBANKS
VS.
THE STATE OF TEXAS
********
ON APPEAL FROM THE 264th DISTRICT COURT
OF BELL COUNTY, TEXAS
Cause No. 72,912
******
STATE’S BRIEF
******
HENRY GARZA
DISTRICT ATTORNEY
BOB D. ODOM
ASSISTANT DISTRICT ATTORNEY
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
Oral Argument Not Requested
1
TABLE OF CONTENTS
ITEM PAGE
Index of Authorities ………………………………………………………………… 3
Statement Regarding Oral Argument ……………………………………….. 4
Statement of the Case ……………………………………………………………… 4
Statement of Facts …………………………………………………………………… 5
Summary of State’s Argument …………………………………………………. 8
Argument and Authorities ………………………………………………………. 9
Issue on Appeal …………………………………………………………….. 9
APPELLANT RECEIVE INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN COUNSEL
DID NOT MOVE TO WITHDRAW WHEN HE
TESTIFIED AT PUNISHMENT PHASE THAT
HE DID NOT INTEND TO HURT THE CHILD?
Standard of Review ……………………………………………… 9
Application and Analysis ……………………………………… 11
Prayer …………………………………………………………………………………… 18
Certificate of Compliance with Rule 9 …………………………………….. 18
Certificate of Service ……………………………………………………………… 19
2
INDEX OF AUTHORITIES
CASES PAGE
Bone v. State, 77 S.W.3d 828 (Tx. Cr. App. 2002) ……………………… 10
Goodspeed v. State, 187 S.W.3d 390 (Tx. Cr. App. 2005) …………… 11
Jackson v State, 590 S.W. 2d 514 (Tx. Cr. App. 1979) ……………….. 12
Mallett v. State, 65 S.W.3d 59 (Tx. Cr. App. 2001) ……………………. 13-15
Ex Parte Miller, 330 S.W.3d 610 (Tx. Cr. App. 2009) ………………… 10
Moon v. State, 572 S.W.2d 681 (Tx. Cr. App. 1978) …………………… 16
Settles v. State, No. 08-05-00133-CR, ……………………………………….. 14-15
2006 Tex. App. LEXIS 9397, (Tx. App. El Paso 8th
Dist. 2006 no pet.), not designated for publication.
State v. Morales, 253 S.W.3d 686 (Tx. Cr. App. 2008) ………………… 10
Strickland v. Washington, 466 U.S. 668 (1982) …………………………. 10
Sullivan v. State, 573 S.W. 2d 1 (Tx. Cr. App. 1978) …………………… 16
Thompson v. State, 9 S.W. 3d 808 (Tx. Cr. App. 1999) ……………….. 10
OTHER
Texas Penal Code
Section 22.04(a)(1) ……………………………………………………….. 12
3
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
The Appellant, Tyler David Ebanks, was charged by indictment
with the offense of injury to a child with serious bodily injury. The
indictment alleged that he intentionally and knowingly caused serious
bodily injury to A.J., a child 14 years of age or younger, by striking him.
(CR-4).
The Appellant waived his right to a jury trial and entered a plea of
guilty. (CR-30; RR2-8). He judicially confessed to the offense as charged
in the indictment. (CR-35; RR2-8, 9). There was no plea bargain with
the State. (CR-30; RR2-5). The trial court found the evidence sufficient
to support a finding of guilty, ordered a presentence investigation, and
recessed the hearing. (RR2-10).
At the subsequent punishment hearing, after receiving evidence
from both the State and the Appellant, the trial court assessed
punishment at 30 years in the Texas Department of Criminal Justice
Institutional Division. (CR-50; RR3-100).
4
The Appellant gave timely notice of appeal (CR-54, 64) and the
trial court certified his right to do so. (CR-65). No motion for new trial
was filed.
STATEMENT OF FACTS
Stephanie Jones left her 3 year old son, A.J., with the Appellant, his
step-father, while she went shopping. A short time later she received a
call from the Appellant telling her to “get home”. (RR3-6, 7). When she
arrived she found the Appellant holding her son. He was unresponsive
and she called 911. (RR3-7). The Appellant told her that A.J. had fallen
from his crib, which was actually a type of play pen that sat low to the
floor. (RR3-7, 19).
In the ambulance A.J. stopped breathing and he was airlifted to
the McLane Children’s Hospital in Temple, Texas. (RR3-8). At the
hospital Ms. Jones was advised the her son’s injuries did not match up to
the Appellant’s version of what had occurred and Child Protective
Services was called. (RR3-8).
Three year old A.J. had suffered 2 skull fractures and was bleeding
in his brain and behind his eyes. His right ear was broken. (RR3-8). He
was kept in the intensive care unit of the hospital in a medically induced
5
coma for 7 or 8 days, and then transferred to a children’s hospital in
Dallas, where he remained for 2 ½ weeks. (RR3-10, 11).
As a result of his injuries the child suffered brain damage that
caused learning disabilities. He could no longer sit up by himself, walk,
or hold a spoon. Extensive physical and speech therapy was necessary
and continued at time of trial. His prognosis remained uncertain. (RR3-
8, 9, 10).
The Appellant eventually recanted his original claim that the child
had fallen from the playpen crib and admitted to authorities that he
struck the child. (RR3-8).
The Appellant entered a plea of guilty before Judge John Gauntt.
The court carefully admonished him pursuant to Article 26.13 of the
Texas Code of Criminal Procedure. (RR2-4-7). The court then went over
with the Appellant the specific allegations in the indictment and the
Appellant stated that his plea to those allegations was “guilty”. (RR2-7,
8). The Appellant confirmed that his plea was freely and voluntarily
entered and was not the result of any force or threats but that he was
pleading guilty “…soley because you are guilty, and for no other reason.”
(RR3-8).
6
The Appellant signed a judicial confession that affirmed that he
had read the indictment and was guilty of the offense as alleged and
stated to the court that he signed it fully understand it’s effect. (CR-35;
RR2-7, 8). That judicial confession was admitted as State’s Exhibit 1
without objection. (RR2-9). The trial court found the evidence sufficient
to find the Appellant guilty but withheld a finding and recessed the
hearing for the preparation of a presentence report. (RR2-10).
At the punishment hearing the State called Stephanie Jones to
testify and then rested. The Appellant then presented testimony from
Dr. William Lee Carter, a psychologist who had examined him, and his
mother, Tammy Jennings. Dr. Carter stated that the Appellant had been
physically and emotionally abused as a child (RR3-32) and that children
who are abused tend to have difficulties with their own impulse control
and anger. (RR3-35). He stated that the Appellant displayed the
characteristics of narcissism and compulsive conduct. (RR3-36). Ms.
Jennings confirmed that the Appellant was abused as a child by his
father. (RR3-45).
The Appellant testified and admitted that he struck the 3 year old
child on the side of the face, causing him to fall hitting the mattress and
box springs of the bed. (RR3-66). He claimed that he did so to get the
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child’s attention, rather than to hurt him. (RR3-66, 67). The Appellant
said that the child would not get in the bed in spite of the rules of the
household that 2:00 to 4:00 p.m. was nap time. Nevertheless, the 3 year
old child shook his head “no”. At that point the Appellant said that he
stuck him on the face because “he knows the rules of the house.” (RR3-
65).
On cross examination he admitted lying to his wife and to the
police about what had happened. (RR3-80, 81). He acknowledged that
he had told Dr. Carter that he just didn’t think a kid should run the
house. (RR3-82, 83).
SUMMARY OF STATE’S ARGUMENT
The Appellant unequivocally entered a plea of guilty and judicially
confessed to the elements of the offense as charged in the indictment
and the trial court took the case under advisement. At the subsequent
punishment phase he attempted to mitigate punishment and denied
that he had intended to hurt the child. He has failed to fulfill his burden
to show that his counsel’s failure to request to withdraw his plea of
guilty, if his testimony can be construed as a claim of innocence, was not
part of a reasonable trial strategy and, thus fell below an objective
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standard of reasonableness. His trial counsel has been given no
opportunity to explain his decision not to do so. Counsel is entitled to
the presumption that his performance was constitutionally adequate.
The Appellant has also failed in his burden to show that but for his
counsel’s alleged deficiency there is a reasonable probability that the
results of the proceedings would have been different.
ARGUMENT AND AUTHORITIES
Issue on Appeal
Did the Appellant receive ineffective assistance of counsel because
his trial counsel did not move to withdraw his otherwise voluntary plea
of guilty when he testified at the punishment phase that he did not
intend to hurt the child?
Standard of Review
In order to establish ineffective assistance of counsel, the
Appellant must prove by a preponderance of the evidence: (1) that his
trial counsel’s performance was deficient in that it fell below an
objective standard of reasonableness; and (2) that the deficient
performance prejudiced him to such a degree as to deprive him of a fair
trial. Such prejudice is demonstrated when the defendant shows a
9
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different. A reasonable
probability is one sufficient to undermine confidence in the outcome of
the proceeding. Strickland v. Washington, 466 U.S. 668, 687 (1982);
Thompson v. State, 9 S.W.3d 808, 813-14 (Tx.Cr.App. 1999).
The Appellate Court does not view trial counsel’s performance by
hindsight, but rather upon the facts of the particular case as they were
at the time of counsel’s conduct. Thompson at 813. The Appellate Court
must be highly deferential to the judgment of counsel and must
presume that counsel’s actions fell within a range of reasonable and
professional assistance. Bone v. State, 77 S.W.3d 828, 836 (Tx.Cr.App.
2002). Thus, unless there is a record sufficient to demonstrate that
counsel’s conduct was not the product of a strategic or tactical decision,
a reviewing court should presume that trial counsel’s performance was
constitutionally adequate unless that conduct was so outrageous that no
competent attorney would engage in it. State v. Morales, 253 S.W.3d
686, 696 (Tx.Cr.App. 2008). The fact that another attorney may have
pursued a different tactic at trial is insufficient to prove a claim of
ineffective assistance. Ex Parte Miller, 330 S.W.3d 610, 616 (Tx.Cr.App.
2009).
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Trial counsel should ordinarily be given an opportunity to explain
his or her actions before being denounced as ineffective. Absent such an
opportunity the appellate court should not find deficient performance
unless the challenged conduct was so outrageous that no competent
attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390,
392 (Tx.Cr.App. 2005).
Application and Analysis
The Appellant alleges that his counsel rendered ineffective
assistance on the sole ground that he did not move to withdraw his plea
of guilty when he testified at the punishment phase of the trial that he
did not intend to hurt the child when he struck him. (RR3-66, 68). This,
he contends, rendered his otherwise voluntary plea of guilty
involuntary. He has failed to fulfill his burden of proof to show
ineffectiveness on the part of trial counsel and, therefore, the Court
must presume that counsel was effective.
The trial court carefully admonished the Appellant and he
confirmed that his plea of guilty was freely and voluntarily entered
because he was guilty as charged in the indictment. (RR2-6-8). The
court admitted his judicial confession admitting that he had read the
indictment and that he committed each and every element of the offense
11
charged therein. The indictment alleged that he had intentionally and
knowingly caused serious bodily injury to A.J., a child 14 years of age or
younger, by striking him. (CR-4). The indictment included all of the
elements of the offense of injury to a child as provided in Section
22.04(a)(1) of the Texas Penal Code. The Appellant does not challenge
the sufficiency of the evidence to support his plea. His plea of guilty was
unequivocal. The trial court found the evidence sufficient to support a
finding of guilt and the Appellant did not contest that finding. (RR2-10).
The court then took the case under advisement and ordered the
preparation of a presentence report. 1
Some 2 months later when the case was reconvened counsel for
the Appellant presented his case in mitigation of punishment, including
the testimony of the psychologist and the Appellant’s mother. He then
called the Appellant. In his testimony he admitted striking the 3 year
old child on the face, knocking him down and lying about what
happened to his wife and the authorities, however, he stated that he did
1
After the trial court has admonished the defendant, received his plea
and evidence, and passed the case for a presentence investigation it has
taken the case under advisement and the plea may no longer be
withdrawn as a matter of right. Jackson v. State, 590 S.W.2d 514, 515
(Tx. Cr. App. 1979).
12
not intend to hurt the child but only to get his attention because he (the
child) knew the rules of the house. (RR3-65, 66, 68). He told the
psychologist that he just didn’t think a kid should run the house. (RR3-
82, 83).
The Appellant now contends that his trial counsel should have
moved to withdraw the plea when he said that he did not intend to hurt
the child and failure to do so rendered the plea involuntary. He has
cited nothing in the record to explain why counsel chose not to do so
nor did he file a motion for new trial on that ground. The Appellant has
failed in his burden to show that his counsel’s failure to request that he
be allowed to withdraw his plea was not part of counsel’s reasonable
trial strategy.
The Appellant dismisses this failure by repeatedly stating, without
citation of authority, that a plea of guilty while testifying to innocence
cannot be freely, voluntarily, and intelligently entered. First, this
assumes that his testimony was in fact a protestation of innocence,
rather than an attempt at mitigation of punishment by minimizing his
culpability. But even if that is the case, the courts have held that there
are all sorts of considerations that may motivate a guilty plea. Mallett v.
State, 65 S.W.3d 59, 64 (Tx. Cr. App. 2001). The record does not
13
remotely indicate that the Appellant even wanted to withdraw his plea
except by hindsight. There may have been many reasons why he
wanted to continue with that plea even while trying to mitigate by
minimizing his culpability.
In Mallett the defendant entered a plea of guilty to aggravated
assault on a police officer. After entering his plea of guilty he testified
that he did not intentionally try to run over the officer. He claimed his
counsel was ineffective for not moving to be allowed to withdraw his
plea. The Court of Criminal Appeals pointed out that the record, as in
this case, did not indicate why counsel did not move to withdraw the
defendant’s plea of guilty and noted that counsel might well have felt
that he could not rebut the recitations in the record showing that his
plea was freely and voluntarily entered. The Court of Criminal Appeals
said that, in any event, such speculation as to a reasonable trial strategy
was immaterial because the defendant had failed to satisfy his burden to
show ineffective assistance absent anything in the record as to counsel’s
reasons for failing to object. Mallett at 64, 65. See also Settles v. State,
No. 08-05-00133-CR, 2006 Tex. App. LEXIS 9397 (Tx. App. El Paso 8th
Dist. 2006 no pet.), not designated for publication. (Where record shows
the defendant pled guilty freely and voluntarily to the offense alleged in
14
the indictment and was properly admonished a prima facie case that the
plea was knowing and voluntary is established; and where the record is
silent as to why the counsel did not request to withdraw the plea the
defendant has failed to fulfill her burden of proof to show
ineffectiveness.).
In this case the record is very clear that the Appellant entered his
plea of guilty to the exact offense charged in the indictment freely,
voluntarily and intelligently and a prima facie case that the plea was so
entered has been clearly established. There has been no showing as to
what the trial strategy of counsel was in not requesting to withdraw his
plea. Absent such evidence in the record counsel’s assistance must be
presumed to have been constitutionally adequate and counsel should
not be branded ineffective without being accorded an opportunity to
explain his actions.
Although it is not necessary to speculate as to what counsel’s trial
strategy might have been in this regard where the Appellant has failed
to fulfill his burden to show ineffectiveness, nevertheless it is probable,
as in Mallett and Settles, that he reasonably concluded that he could not
rebut his unequivocal plea of guilty and judicial confession. Further, in
light of the evidence of such severe injuries to the child that
15
contradicted his claim that he struck a single blow and did not intend to
hurt the child, might well have been a reasonable strategy to continue
with his plea of guilty.
The Appellant has also failed in his burden to show that, but for
counsel’s alleged error in failing to request to withdraw his plea of
guilty, the result of his trial would have been different. Whether or not
to allow him to withdraw his plea at the punishment stage of the trial
after the case had been taken under advisement was entirely within the
trial court’s discretion. The trial court was under no duty to sua sponte
withdraw the plea due to the Appellant’s testimony attempting to
mitigate punishment by minimizing his intent to hurt the child. The trial
court was under no duty to do so because it had withheld its finding of
guilt pending the preparation of the presentence report. The court had
the option, after considering all of the evidence, to find the Appellant not
guilty should it believe the facts required it without withdrawing the
plea. Sullivan v. State, 573 S.W.2d 1, 4 (Tx. Cr. App. 1978), op. on
rehearing, citing Moon v. State, 572 S.W.2d 681 (Tx. Cr. App. 1978).
The court heard Appellant’s testimony at punishment and could
have found him not guilty based upon his denial of intent but did not do
16
so. There is no reason to believe that the court would have granted his
request had it been made or that he would have been found not guilty.
Great difference must be given to the judgment of trial counsel
and he must be presumed to have rendered reasonable and professional
assistance. Absent anything in the record to show that his conduct was
not the product of strategic or tactical decisions counsel is also entitled
to the presumption that he rendered constitutionally adequate
assistance unless the record establishes conduct so outrageous that no
competent attorney would engage in it. There has been no such
showing in this case and no opportunity was even afforded counsel to
answer the accusations against him. The Appellant has failed in his
burden and the judgment of conviction must be affirmed.
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PRAYER
The State of Texas respectfully prays that the judgment of
conviction herein be, in all things, be affirmed.
Respectfully Submitted,
HENRY GARZA
District Attorney
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State’s Brief is in compliance with Rule 9
of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 2,701words.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, Richard E. Wetzel, Counsel for Appellant, by electronic
transfer via Email, addressed to him at: wetzel_law@1411west.com, on
this 21st day of July, 2015.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
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