                                                                               ACCEPTED
                                                                          12-14-00182-CR
                                                              TWELFTH COURT OF APPEALS
                                                                           TYLER, TEXAS
                                                                    12/31/2014 4:06:08 PM
                                                                             CATHY LUSK
                                                                                   CLERK

                  CAUSE NO. 12-14-00182-CR

                                                    FILED IN
                                             12th COURT OF APPEALS
                  IN THE COURT OF APPEALS         TYLER, TEXAS
           FOR   THE TWELFTH JUDICIAL DISTRICT
                                             12/31/2014 4:06:08 PM
                      AT TYLER, TEXAS             CATHY S. LUSK
                                                      Clerk



                     STEPHEN ALBRO JR.,
                          Appellant

                              V.

                      STATE OF TEXAS,
                          Appellee


           ON APPEAL FROM CAUSE NO. 2013-0614
         IN THE 217th JUDICIAL DISTRICT COURT OF
                ANGELINA COUNTY, TEXAS


                     APPELLEE’S BRIEF



                                   APRIL AYERS-PEREZ
                                   Assistant District Attorney
                                   Angelina County D.A.’s Office
                                   P.O. Box 908
                                   Lufkin, Texas 75902
                                   (936) 632-5090 phone
                                   (936) 637-2818 fax
                                   State Bar No. 24090975

ORAL ARGUMENT NOT REQUESTED
                         Identity of Parties and Counsel

John Reeves                                   Layne Thompson
Counsel for Stephen Albro, Jr. (trial)        Attorney for the State (trial)
1007 Grant Street                             Angelina County District Attorney’s
Lufkin, Texas 75901                              Office
                                              P.O. Box 908
Albert J. Charanza                            Lufkin, Texas 75902
Counsel for Stephen Albro, Jr.
(appeal)                                      April Ayers-Perez
P.O. Box 1825                                 Attorney for the State (appeal)
Lufkin, Texas 75902                           Angelina County District Attorney’s
                                                    Office
Stephen Albro, Jr., TDCJ# 01940265            P.O. Box 908
Appellant                                     Lufkin, Texas 75902
Goodman Unit
349 Private Road 8430
Jasper, Texas 75951




                                         ii
                                                Table of Contents

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities ................................................................................................... v

Statement Regarding Oral Argument .......................................................................vi

Issues Presented ........................................................................................................vi

         Reply Issue #1: Appellant’s trial counsel was not ineffective, and even
               if he was, there was no harm to Appellant ...........................................vi

         Reply Issue #2: Review of trial court’s denial of Appellant’s Motion
               for New Trial is unnecessary ................................................................vi

Statement of Facts ...................................................................................................... 1

Summary of the Argument......................................................................................... 1

Argument.................................................................................................................... 3

         Reply Issue #1: Trial counsel’s conduct did not fall below
              professional standards, and even if they did, there was no harm
              to the Appellant ..................................................................................... 3

                   Standard of review................................................................................. 3

                   Applicable law for presentence investigation reports........................... 4

                   Trial counsel’s performance did not fall below an objectively
                   reasonable standard .............................................................................. 4

         Reply Issue #2 – Review of trial court’s denial of Appellant’s Motion
         for New Trial is unnecessary ........................................................................... 8

                   Standard of review................................................................................. 8


                                                             iii
                   No need for this Court review the new trial denial ............................... 9

Prayer ......................................................................................................................... 9

Certificate of Compliance ........................................................................................ 10

Certificate of Service ............................................................................................... 10




                                                               iv
                                            Index of Authorities

Cases                                                                                                            Page

Ex Parte Flores, 387 S.W.3d 626 (Tex. Crim. App. 2012) ....................................... 4

Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998)....................................... 5

McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) ................................. 5

Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App. 2013) .................................. 10

State v. Zalman, 400 S.W.3d 590 (Tex. Crim. App. 2013) ..................................... 10

Strickland v. Washington, 466 U.S. 668 (1984) .................................................... 4, 5

Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) ......................... 5

Rules

Tex. R. App. P. 39.1................................................................................................... 2

Statutes

Tex. Code. Crim. Proc. art. 42.12 § 9(d) ................................................................... 5

U.S. CONST. amend. VI .............................................................................................. 4




                                                           v
                     Statement Regarding Oral Argument

      Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is

unnecessary, as the facts and legal arguments are adequately presented in the briefs

and record and the decisional process would not be significantly aided by oral

argument.

                                 Issues Presented

      Reply Issue #1– Appellant’s trial counsel was not ineffective, and even if he

was, there was no harm to Appellant.

      Reply Issue #2– Review of trial court’s denial of Appellant’s Motion for

New Trial is unnecessary.




                                         vi
                                Statement of Facts

      Appellee finds the facts laid out in Appellant’s brief to be an accurate

statement of the record.

                           Summary of the Argument

      Trial counsel’s performance did not fall below an objectively reasonable

standard.   According to trial counsel for Albro, counsel for State, and Albro

himself probation was not offered to Albro at any time. All that was offered to

Albro in exchange for his offer to testify against his co-defendants was an

agreement that this State would acknowledge Albro’s actions in confessing. The

State did so by offering Albro ten (10) years confinement in the Texas Department

of Criminal Justice – Institutional Division. Albro had an enhancement based on a

prior juvenile conviction for murder that enhanced the sentence range from 2-20

years up to 5-99 years. Albro was admonished on the potential sentence of 2-20

years at the time of his guilty plea, however trial counsel acknowledged that both

he and Albro were aware of the enhancement prior to the plea, and the Court

acknowledged the enhancement prior to the sentencing.            The enhancement,

however, is a moot point because Albro was sentenced to twenty (20) years

confinement in the Texas Department of Criminal Justice – Institutional Division

which is within the range of punishment that Albro was admonished on during his

plea. Trial counsel adequately prepared Albro for his sentencing and meticulously


                                          1
prepared letters of support for the presentence investigation report and witnesses

for the actual sentencing.

      Lastly, there is no need to review the trial court’s denial of a motion for new

trial, as it is reviewed under a more deferential than the Strickland argument

already raised. If this Court finds that trial counsel was effective, the trial court did

not abuse its discretion per se in finding trial counsel same. If this Court finds that

trial counsel was ineffective, the case will be remanded, rendering the trial court’s

denial of a new trial moot.




                                           2
                                        Argument

      Reply Issue #1: Trial counsel’s conduct did not fall below professional

standards, and even if they did, there was no harm to Appellant.

                                    Standard of review

      A criminal defendant is guaranteed the right to representation throughout the

trial process.1 The Sixth Amendment right to counsel “preserves the fairness,

consistency, and reliability of criminal proceedings by ensuring the process is an

adversarial one.”2 An appellant can establish a claim of ineffective assistance of

counsel by proving, by a preponderance of the evidence, that (1) counsel’s

performance fell “below an objective standard of reasonableness” and (2) that the

deficient performance actually prejudiced the defendant.3

      Ineffective assistance of counsel is a serious claim, and the reviewing court

will rarely have a record on direct appeal capable of providing enough information

to provide a fair evaluation.4       Because of the seriousness of the claim, “any

allegation of ineffectiveness must be firmly founded in the record, and the record

must demonstrate the alleged ineffectiveness.”5

1
      U.S. CONST. amend. VI; Tex. Const. art. I, § 10.
2
      Ex Parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012).
3
      Strickland v. Washington, 466 U.S. 668, 668 (1984).
4
      Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).
5
      McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

                                              3
      Scrutiny of counsel’s performance is highly deferential and there is a

presumption that the conduct falls within the wide range of reasonable professional

assistance.6 Where the alleged ineffective assistance is an omission, rather than a

commission of an act, the thorough and detailed examination by a collateral attack

of a writ of habeas corpus is preferred.7

                Applicable law for presentence investigation reports

      Unless waived by the defendant, at least 48 hours before sentencing a

defendant, the judge shall permit the defendant or his counsel to read the

presentence report.8

                       Trial counsel’s performance did not fall below
                             an objectively reasonable standard

      Appellant’s arguments are trial counsel’s performance was deficient in that

(1) Albro was offered probation before he waived his right to a jury trial and

consented to plead guilty without a recommendation to a second degree felony

based on his offer to testify against his co-defendants, (2) Albro was not aware of

the enhancement paragraph at the time he pled guilty because his attorney did not

advise him of the enhancement, (3) trial counsel did not object at the sentencing

hearing to the enhancement of punishment considered by the court at sentencing,

6
      Strickland, 466 U.S. at 688.
7
      Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).
8
      Tex. Code. Crim. Proc. art. 42.12 § 9(d) (emphasis added).

                                              4
and (4) trial counsel did not review the PSI with Albro prior to sentencing or

adequately prepare Albro for sentencing, trial counsel did not communicate with

Albro or meet with him in order for him to make a free, voluntary and informed

decision whether to waive his right to a jury trial and plead guilty.9

       Albro was never offered probation by the State at any time. Trial counsel

has asserted that there was never an agreement for probation, much less in

exchange for a waiver of a jury trial.10 Additionally, the prosecutor for the state

also asserts that there was never an agreement for probation.11 In a letter dated

February 18, 2014, over four months prior to the July 01, 2014 sentencing, Albro

wrote to trial counsel that he was upset to learn that he was not eligible for

probation.12 The appellant, the appellant’s trial counsel, and counsel for state all

acknowledge that the appellant was not eligible for probation and would not be

receiving probation. There was no agreement for probation for trial counsel to

inform the court of and no agreement for probation for trial counsel to require the

State to follow through on.


9
       Appellant’s Brief at 17.
10
       Supp. I R.R. at 35 (“Q.        Mr. Reeves, the defendant claims that he was offered
probation before he waived his right to jury trial. Is that true? A. No it is not. Mr. Thompson
made that clear from my first conversation sometime after December 30th of 2013.”)
11
       Supp. I R.R. at 42 (“I repeatedly made it clear to Mr. Reeves that I could not offer
probation, given the murder conviction Mr. Albro had as a juvenile.”)
12
       See Defendant’s Exhibit 1, I R.R.

                                                5
       Trial counsel advised Albro of the enhancement based on his prior murder

conviction as a juvenile prior to the plea. Trial counsel received notice from the

State on April 29, 2014 that Albro’s juvenile conviction was going to be used as a

sentencing enhancement.13 Albro was admonished at his plea on May 13, 2014

that he faced 2-20 years confinement in the Texas Department of Criminal Justice

– Institutional Division.14 During the sentencing of Albro on July 01, 2014 the

State referred to the notice given to trial counsel on April 28, 2014 about the

enhancement for Albro’s juvenile conviction.15 During this sentencing the Court

questioned trial counsel about the enhancement and trial counsel acknowledged

that the notice was prior to the date Albro pled, Albro was aware of the

enhancement, and that this was not a surprise.16                 The enhancement and any

objections to it, however, are a moot point because Albro was sentenced to 20

years confinement in the Texas Department of Criminal Justice – Institutional




13
       Supp. I R.R. at 37 (“Well, I received that notice [enhancement] by fax on 4-29-2014, I
believe, according to my records, and it wasn’t a surprise. It was talked about from the very
beginning of the case.”)
14
       II R.R. at 5-6.
15
        III R.R. at 5 (“We had given notice of enhancement per a pleading, which is filed in the
Court, enhancing the offense with the murder conviction as a juvenile in 2006; and we’re
offering as State’s Exhibit 1 the order of commitment committing him to 30 years determinant
sentence for murder in 2006.”)
16
       Id. at 5-7.

                                                6
Division which is within the range of punishment that Albro was admonished

about at the time of his plea of guilty.

      The contents of the presentence investigation report were reviewed with

Albro prior to the sentencing and trial counsel adequately prepared Albro for the

sentencing. Trial counsel testified at the Motion for New Trial, “I had several

telephone conversations with Mr. Albro from the jail to my office; I had meetings

with his mother, which were more than three, lasting up to two hours or more.

And I had at least four or five meetings with him here at the courthouse, and those

would last up to 45 minutes at various times.”17 In addition to the meetings with

Albro trial counsel spent considerable time preparing documents for the

presentence investigation report including letters from family, church, academic

achievements, and various character witnesses on Albro’s behalf.18 After gathering

witnesses and documents for Albro trial counsel then proceeded to spend 30 to 45

minutes reviewing the presentence investigation report in preparation for the

sentencing.19 Throughout all of this preparation, trial counsel was not ineffective

and there was no actual harm done to Albro.




17
      Supp. I R.R. at 15.
18
      Id. at 25-27.
19
      Id. at 27.

                                           7
      Reply Issue #2 – Review of trial court’s denial of Appellant’s Motion for

New Trial is unnecessary.

                                  Standard of review

      A trial judge’s decision to grant a motion for new trial is reviewed only for

an abuse of discretion.20 A judge may grant or deny a motion for new trial “in the

interest of justice,” but justice means in accordance with the law.21 A judge may

not grant a new trial on mere sympathy, an inarticulate hunch, or simply because

he believes the defendant received a raw deal or is innocent.22

      An appellate court may reverse the trial court’s ruling only if the ruling was

clearly erroneous or arbitrary.23 A court of appeals should examine the totality of

the record in a light most favorable to the trial court’s ruling to assess whether

counsel, under an objective standard, rendered ineffective assistance.24




20
      State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App. 2013).
21
      Id.
22
      Id.
23
      Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013).
24
      Id.

                                            8
                   No need for this Court review the new trial denial

         The standard of review for denying a new trial is a much more deferential

standard than the ineffective assistance claim, discussed supra. Should this Court

find that trial counsel did not violate Strickland, then in a light most favorable to

the trial court’s ruling upon examination of the entire record, it must not have

abused its discretion in finding same.

         Likewise, if this Court finds that trial counsel did violate Strickland, then it

must remand the case, rendering the denial of a new trial moot.

         Since the issue of ineffective assistance of counsel is dispositive of this

appeal, this Court not need reach the issue of the denial of Appellant’s motion for

new trial.

                                         Prayer

         WHEREFORE, The State of Texas, respectfully prays that this Court of

Appeals dismiss this prohibited appeal without further action. Absent a dismissal,

The State of Texas prays that this Court of Appeals affirm the judgment of the trial

court.




                                             9
                                                Respectfully Submitted,


                                                /s/ April Ayers-Perez
                                                APRIL AYERS-PEREZ
                                                Assistant District Attorney
                                                Angelina County D.A.’s Office
                                                P.O. Box 908
                                                Lufkin, Texas 75902
                                                (936) 632-5090 phone
                                                (936) 637-2818 fax
                                                State Bar No. 24090975
                                                ATTORNEY FOR THE
                                                STATE OF TEXAS

                             Certificate of Compliance

      I certify that this document contains 1,816 words, counting all parts of the

document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in

14 point font, and the footnote text is in 12 point font.


                                                _/s/ April Ayers-Perez____________
                                                APRIL AYERS-PEREZ

                                Certificate of Service

      I certify that on December 31, 2014, a true and correct copy of the above

document has been served electronically to Al Charanza, Counsel for Stephen

Albro, Jr on appeal, at P.O. Box 1825, Lufkin, Texas 75902.


                                                __/s/ April Ayers-Perez____________
                                                APRIL AYERS-PEREZ



                                           10
