                                                                          WR-81,360-01
                                                            COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                          Transmitted 5/26/2015 12:05:43 PM
                                                            Accepted 5/26/2015 12:47:21 PM
May 26, 2015                                                                 ABEL ACOSTA
               IN THE COURT OF CRIMINAL APPEALS                                      CLERK
                           OF TEXAS

 EX PARTE                     §
                              §
                              §      NO. WR-81,360-01
                              §
 DERRICK KEITH COOKE          §

     11.07 APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
 NUMBER C-1-009379-08496383-A IN THE CRIMINAL DISTRICT COURT NO. 1
 OF TARRANT COUNTY, TEXAS; THE HONORABLE ELIZABETH BEACH,
 JUDGE PRESIDING.

                               §§§

                          STATE’S BRIEF

                               §§§


                                     SHAREN WILSON
                                     Criminal District Attorney
                                     Tarrant County, Texas

                                     DEBRA WINDSOR, Assistant
                                     Criminal District Attorney
                                     Chief of Post-Conviction

                                     ANDRÉA JACOBS, Assistant
                                     Criminal District Attorney
                                     401 W. Belknap
                                     Fort Worth, Texas 76196-0201
                                     (817) 884-1687
                                     FAX (817) 884-1672
                                     State Bar No. 24037596
                  IDENTITY OF PARTIES AND COUNSEL

      For convenience of the Court, the State provides the following list of all trial
and appellate counsel:
Applicant:
Original Plea Proceedings                     Jeffery D. Gooch
                                              2315 N Main St, Ste 320
                                              Fort Worth, TX 76164

Adjudication Proceedings                      J. Don Carter
                                              3663 Airport Fwy
                                              Fort Worth, TX 76111

Appeal                                        Robert “Bob” Ford
                                              Deceased

Post-Conviction Writ                          John Stickels
                                              P.O. Box 121431
                                              Arlington, Texas 76012

Respondent:
Original Plea Proceedings                     Tim Curry, District Attorney
                                              Amy Collum
Adjudication Proceedings                      Phelesa M. Guy
Appeal                                        Kimberly C. Wesley

Post-Conviction Writ                          Joe Shannon, Jr. District Attorney
                                              Sharen Wilson, District Attorney
                                              Andréa Jacobs
                                              401 W. Belknap
                                              Fort Worth, Texas 76196

Court:
Plea Proceeding                               Hon. Sharen Wilson
                                              Criminal District Court No. 1
                                              401 W. Belknap
                                              Fort Worth, Texas 76196




                                          i
Post-Conviction Writ        Hon. Elizabeth Beach
                            Criminal District Court No. 1
                            401 W. Belknap
                            Fort Worth, Texas 76196




                       ii
                    TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL .       .   .   .   i

INDEX OF AUTHORITIES . .    .         .   .   .   .   v

STATEMENT OF THE CASE .     .         .   .   .   .   2

RESPONSES TO REQUESTED ISSUES . .         .   .   .   4

         WHETHER AN APPLICANT IS SUFFERING
         COLLATERAL     CONSEQUENCES     IS    A
         JURISDICTIONAL QUESTION; THEREFORE, THE
         COURT SHOULD ANSWER THAT QUESTION
         BEFORE LOOKING TO THE MERITS OF THE
         CLAIM.

         APPLICANT’S   APPLICATION  SHOULD     BE
         GRANTED AND HIS CONVICTION VACATED
         BECAUSE APPLICANT’S SENTENCE FOR A THIRD
         DEGREE FELONY WAS ILLEGAL.

         FAILURE TO OBJECT TO THE USE OF THE NEW
         MEXICO     PRIOR     CONVICTION     FOR
         ENHANCEMENT IN THIS CASE DID NOT
         CONSTITUTE INEFFECTIVE ASSISTANCE OF
         COUNSEL BECAUSE THE ISSUE WAS NOT WELL
         CONSIDERED AND CLEARLY DEFINED.


STATEMENT OF FACTS .   .    .         .   .   .   .   5

SUMMARY OF THE ARGUMENT . .           .   .   .   .   7

ARGUMENTS AND AUTHORITIES .           .   .   .   .   8




                                iii
    Requested Issue 1: Whether Applicant is suffering
    collateral consequences given the fact that even if the
    present assault had not been elevated to a third degree
    felony, as a Class A misdemeanor, it could have elevated
    the assault in Applicant’s Hood County case to a third
    degree felony.

    I.     WHETHER AN APPLICANT IS SUFFERING
           COLLATERAL CONSEQUENCES      IS  A
           JURISDICTIONAL QUESTION; THEREFORE,
           THE COURT SHOULD ANSWER THAT
           QUESTION BEFORE LOOKING TO THE
           MERITS OF THE CLAIM.. .   .   .     .                 8

    II.    APPLICANT’S APPLICATION SHOULD BE
           GRANTED AND HIS CONVICTION VACATED
           BECAUSE APPLICANT’S SENTENCE FOR A
           THIRD DEGREE FELONY WAS ILLEGAL.   .                  10


    Requested Issue 2: Whether counsel was ineffective for
    failing to object to the New Mexico conviction.


    III.   FAILURE TO OBJECT TO THE USE OF THE
           NEW MEXICO PRIOR CONVICTION FOR
           ENHANCEMENT IN THIS CASE DID NOT
           CONSTITUTE INEFFECTIVE ASSISTANCE
           OF COUNSEL BECAUSE THE ISSUE WAS
           NOT WELL CONSIDERED AND CLEARLY
           DEFINED. .   .    .   .   .    .    .                 12

CONCLUSION AND PRAYER.             .        .   .    .       .   16

CERTIFICATE OF SERVICE. .          .        .   .    .       .   17

CERTIFICATE OF COMPLIANCE. .                .   .    .       .   18




                                       iv
                         INDEX OF AUTHORITIES

CASES                                                             PAGE

United States Supreme Court

Strickland v. Washington,
       466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   .    13, 16


Texas Court of Criminal Appeals

Chiarini v. State, 442 S.W.3d 318
      (Tex. Crim. App. 2014). .      .       .    .     .     .    10

Ex parte Chandler, 182 S.W.3d 350
      (Tex. Crim. App. 2005). .   .          .    .     .     .    14, 15

Ex parte Cooke, No. WR-81,360-01,
      2015 WL 831620
      (Tex. Crim. App. Feb. 25, 2015).       .    .     .     .    3

Ex parte Graves, 70 S.W.3d 103
      (Tex. Crim. App. 2002). .      .       .    .     .     .    8

Ex parte Harrington, 310 S.W.3d 452.         .    .     .     .    9

Ex parte Parrott, 396 S.W.3d 531
      (Tex. Crim. App. 2013). .      .       .    .     .     .    11-12

Ex parte Pena, 71 S.W.3d 336
      (Tex. Crim. App. 2002). .      .       .    .     .     .    11

Ex parte Rich, 194 S.W.3d 508
      (Tex. Crim. App. 2006). .      .       .    .     .     .    12

Ex parte Smith, 296 S.W.3d 78
      (Tex. Crim. App. 2009). .      .       .    .     .     .    14




                                         v
Garcia v. State, 145 S.W.2d 180
     (Tex. Crim. App. 1940). .          .        .   .      .    .   13

Hernandez v. State, 988 S.W.2d 770
     (Tex. Crim. App. 1999). .     .             .   .      .    .   13

Johnson v. State, 691 S.W.2d 619
     (Tex. Crim. App. 1984),
     cert. denied, 474 U.S. 865 (1985).          .   .      .    .   13


Lower Courts

Collesano v. State, No. 01–01–00984–CR,
      2002 WL 2026055
      (Tex. App. – Houston [1st Dist.] Aug. 29, 2002, pet. ref’d).   15

Cooke v. State, No. 02-08-026-CR,
     2009 WL 3078405
     (Tex. App. – Fort Worth Sept. 21, 2009, pet. ref’d).        .   2-3

Goodwin v. State, 91 S.W.3d 912
(Tex. App. – Fort Worth 2002, no pet.).          .   .      .    .   15

Mitchell v. State, 821 S.W.2d 420
      (Tex. App. – Austin 1991, pet. ref’d). .       .      .    .   10, 14

State v. Cagle, 77 S.W.3d 344
       (Tex. App. – Houston [14th Dist.] 2002, pet. ref’d). .    .   15


Out-of-State Cases

Goulder v. Ariz. Dept. of Trans., Motor Vehicle Div.,
     877 P.2d 280 (Ariz. 1994).       .     .      .        .    .   10-11


People v. Gagne, 485 N.Y.S.2d 938
      (N.Y. Co. Ct. 1985).    .         .        .   .      .    .   10-11



                                            vi
State v. Nelson, 910 P.2d 935
       (N.M. Ct. App. 1996).    .     .         .   .   .   .   10-11


CONSTITUTIONAL PROVISIONS, STATUTES, RULES

Tex. Code Crim. Proc. art. 11.07. .   .         .   .   .   .   9

Tex. Code Crim. Proc. art. 11.07, §3(c). .      .   .   .   .   9

Tex. Penal Code §22.01(b). .    .     .         .   .   .   .   11

Tex. Penal Code §22.01(b)(2). .       .         .   .   .   .   10, 11

Tex. Penal Code §12.21(2).      .     .         .   .   .   .   12




                                          vii
                  IN THE COURT OF CRIMINAL APPEALS
                              OF TEXAS

EX PARTE                              §
                                      §
                                      §       NO. WR-81,360-01
                                      §
DERRICK KEITH COOKE                   §

    11.07 APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
NUMBER C-1-009379-08496383-A IN THE CRIMINAL DISTRICT COURT NO. 1
OF TARRANT COUNTY, TEXAS; THE HONORABLE ELIZABETH BEACH,
JUDGE PRESIDING.

TO THE HONORABLE JUDGES OF SAID COURT:

      COMES NOW, THE STATE OF TEXAS (“State”), Respondent, by and

through her Tarrant County Criminal District Attorney’s Office, files this State’s

Brief pursuant to the Court of Criminal Appeals’ Order dated February 25, 2015,

and in support shows the following:




                                          1
                         STATEMENT OF THE CASE

      Nature of the case. The proceeding is an article 11.07 application for writ of

habeas corpus.

      Course of Proceedings/Trial Court Disposition.          On October 31, 2002,

DERRICK KEITH COOKE (“Applicant”) pled guilty, pursuant to a plea bargain

agreement, to the third degree felony offense of assault causing bodily injury to a

family member – prior conviction. See Unadjudicated Judgment of Plea of Guilty

or Nolo Contendere and Suspending Imposition of Sentence (“Unadjudicated

Judgment”),      No.   0849683D,      p.       1;   Written   Plea   Admonishments

(“Admonishments”), No. 0849683D, p. 1. In accordance with the plea agreement,

the trial court placed Applicant on deferred adjudication for a period of five years.

See Unadjudicated Judgment, p. 1; Admonishments, p. 1.

      Applicant did not appeal his placement on deferred adjudication.           See

Criminal Docketing Statement, No. 0849683D.

      On January 3, 2008, the trial court found Applicant had violated the terms of

his deferred adjudication, to-wit: committed a new assault causing bodily injury on

a family member; adjudicated Applicant guilty; and sentenced him to three years

confinement in the Texas Department of Criminal Justice – Institutional Division.

See Judgment Adjudicating Guilt (“Judgment”), No. 0849683D.

      Applicant’s conviction was affirmed on appeal on September 21, 2009. See



                                           2
Cooke v. State, No. 02-08-026-CR, 2009 WL 3078405 (Tex. App. – Fort Worth

Sept. 21, 2009, pet. ref’d) (not designated for publication).

      Applicant filed his application for writ of habeas corpus on July 11, 2011.

See Application, p. 1. On February 25, 2015, this Court ordered briefing be done

on Applicant’s claims. See Ex parte Derrick Keith Cooke, No. WR-81,360-01,

2015 WL 831620 (Tex. Crim. App. Feb. 25, 2015) (not designated for

publication).




                                           3
    RESPONSES TO REQUESTED ISSUES

WHETHER AN APPLICANT IS SUFFERING
COLLATERAL     CONSEQUENCES     IS    A
JURISDICTIONAL QUESTION; THEREFORE, THE
COURT SHOULD ANSWER THAT QUESTION
BEFORE LOOKING TO THE MERITS OF THE
CLAIM.

APPLICANT’S   APPLICATION  SHOULD     BE
GRANTED AND HIS CONVICTION VACATED
BECAUSE APPLICANT’S SENTENCE FOR A THIRD
DEGREE FELONY WAS ILLEGAL.

FAILURE TO OBJECT TO THE USE OF THE NEW
MEXICO     PRIOR     CONVICTION     FOR
ENHANCEMENT IN THIS CASE DID NOT
CONSTITUTE INEFFECTIVE ASSISTANCE OF
COUNSEL BECAUSE THE ISSUE WAS NOT WELL
CONSIDERED AND CLEARLY DEFINED.




                   4
                           STATEMENT OF FACTS

      On June 26, 2002, Applicant was indicted in Tarrant County for the third

degree felony offense of assault causing bodily injury to a family member with one

prior conviction. See Indictment, No. 0849683D. The offense was enhanced by

Applicant’s prior New Mexico conviction. See Indictment.

      On October 31, 2002, Applicant pled guilty and judicially confessed,

pursuant to a plea agreement, to the third degree felony offense of assault causing

bodily injury to a family member – prior conviction in Tarrant County. See

Unadjudicated Judgment; Admonishments, p. 1, 4.         Applicant was placed on

deferred adjudication for a period of five years. See Unadjudicated Judgment. On

January 3, 2008, Applicant was adjudicated guilty and sentenced to three years

confinement in the Texas Department of Criminal Justice – Institutional Division.

See Judgment.

      Applicant filed this application for writ of habeas corpus on July 11, 2011.

See Application, p. 1.

      Applicant discharged his sentenced in this Tarrant County case on March 11,

2013. See Valdez Affidavit, p. 2.

      On August 1, 2007, Applicant was indicted in Hood County for the third

degree felony offense of assault-bodily injury to a family member – enhanced

occurring on June 18, 2007. See State’s Proposed Memorandum, Findings of Fact



                                         5
and Conclusions of Law, Attachment A: Indictment, No. CR10647 (“Hood County

Indictment”). The Tarrant County offense was used to enhance the Hood County

offense.   See Hood County Indictment.        On May 23, 2008, Applicant was

convicted by a jury and punishment was assessed at eight years confinement in the

Texas Department of Criminal Justice – Institutional Division.          See State’s

Proposed Memorandum, Findings of Fact and Conclusions of Law, Attachment B:

Judgment of Conviction by Jury, No. CR10647 (“Hood County Judgment”).

      Applicant will discharge his sentence in his Hood County conviction on

March 19, 2018. See Valdez Affidavit, p. 2.

      Based on the Hood County conviction, the trial court in this case adopted

findings of fact that

      8.     Applicant is currently facing collateral consequences as a result
             of this [Tarrant County] conviction.

See State’s Proposed Memorandum, Findings of Fact and Conclusions of Law, p.

3; Order, Dated May 1, 2014.




                                         6
                      SUMMARY OF THE ARGUMENT

      Applicant’s conviction should be VACATED. The inquiry into whether

Applicant is suffering collateral consequences is a jurisdictional question.

Therefore, the proper inquiry to determine collateral consequences should not be

whether relief in this case would affect another case but whether this conviction

affected another case. Since the Tarrant County conviction was used to enhance

Applicant’s sentence for his Hood County conviction, this Court should find that

Applicant is suffering a collateral consequence because of this Tarrant County

conviction. Therefore, this Court has jurisdiction to consider this application on

the merits.

      Applicant’s Tarrant County conviction was improperly enhanced to a third

degree felony by the New Mexico prior conviction when the statute required that

only Texas offenses could be used. Therefore, his sentence was illegal and outside

the range of punishment.

      However, counsel was not ineffective in the Tarrant County case for failing

to object to the use of the prior New Mexico conviction because the law at the time

was not clear and well-defined. Even though the information was in the statute,

there was no case law or court interpretation regarding what the statute meant.

Applicant’s ineffective assistance of counsel claim should be DENIED.




                                         7
                     ARGUMENTS AND AUTHORITIES

Requested Issue 1: Whether Applicant is suffering collateral consequences given
the fact that even if the present Tarrant County assault had not been elevated to a
third degree felony, as a Class A misdemeanor, it could have elevated the assault
in Applicant’s Hood County case to a third degree felony.

I.    WHETHER AN APPLICANT IS SUFFERING COLLATERAL
      CONSEQUENCES IS A JURISDICTIONAL QUESTION; THEREFORE,
      THE COURT SHOULD ANSWER THAT QUESTION BEFORE
      LOOKING TO THE MERITS OF THE CLAIM.

      Whether this Tarrant County conviction was used to enhance the Hood

County sentence or whether relief from this habeas proceeding would affect the

Hood County conviction are two separate inquiries. But only the question of

whether this Tarrant County conviction was used to enhance the Hood County

sentence is a collateral consequence inquiry. Whether relief in this Tarrant County

case would have any effect on the Hood County case goes to the merits of this

application and any application filed in the Hood County case. A question of

collateral consequences is a jurisdictional question and, therefore, should be

resolved before the court addresses the merits of the claim.

      “We are mindful of the fact that we have not always addressed the
      threshold issue of our habeas corpus jurisdiction before addressing the
      merits of a given claim. We should.”

Ex parte Graves, 70 S.W.3d 103, 109 (Tex. Crim. App. 2002).

      A jurisdictional inquiry should get the applicant through the door. While it

should be the first inquiry made, it also should not require too heavy a burden on



                                          8
the applicant. Whether his application invokes this Court’s jurisdiction is quite

different than whether the application should be granted.

      A finding that only the mere existence of Applicant’s conviction, and not the

possibility of any relief, is sufficient to invoke this Court’s jurisdiction is consistent

with the current jurisprudence on collateral consequences. In recent years, an

applicant need only allege specific facts that he has suffered some adverse

consequence as a result of his conviction. Ex parte Harrington, 310 S.W.3d 452,

457-58 (Tex. Crim. App. 2010). The Court has not required other applicants to

prove that the granting of relief would eliminate that adverse consequence. See id.

      Finally, the statute itself supports that it is the conviction and not the effect

of relief that is important. Article 11.07, §3(c) states, in part:

      Confinement means confinement for any offense or any collateral
      consequence resulting from the conviction that is the basis of the
      instant habeas corpus.

Tex. Code Crim. Proc. art. 11.07, §3(c). Under most circumstances, receiving

relief would alleviate the collateral consequences. However, nowhere in the statute

did the Legislature make that a requirement. See Tex. Code Crim. Proc. art. 11.07.

The collateral consequence should get the applicant in the door.

      Therefore, the proper inquiry should not be whether Applicant’s conviction

as a misdemeanor would have an effect on the Hood County case but whether

Applicant’s conviction was used to enhance his Hood County sentence. It was.



                                            9
      Applicant is suffering from a collateral consequence resulting from this

conviction.



II.   APPLICANT’S APPLICATION SHOULD BE GRANTED AND HIS
      CONVICTION VACATED BECAUSE APPLICANT’S SENTENCE FOR
      A THIRD DEGREE FELONY WAS ILLEGAL.

      Applicant’s Tarrant County assault – family violence offense was enhanced

to a third degree felony based on his prior New Mexico conviction.                See

Indictment.   However, an assault – family violence offense “is a Class A

misdemeanor, except that the offense is a felony of the third degree if the offense is

committed against:

      (2) a member of the defendant's family or household, if it is shown on
      the trial of the offense that the defendant has been previously
      convicted of an offense against a member of the defendant's family or
      household under this section.”

Tex. Penal Code §22.01(b)(2) (West 2001) (emphasis added). “In construing a

statute, we give effect to its literal text unless the meaning of the statute is

ambiguous or the plain meaning leads to absurd results that the legislature could

not have possibly intended.” Chiarini v. State, 442 S.W.3d 318, 320 (Tex. Crim.

App. 2014). There is precedent that the plain language of phrases such as “an

offense under this article” prohibits the use of out-of-state offenses because those

offenses are not “under this [Texas] article.” Mitchell v. State, 821 S.W.2d 420,

422-23 (Tex. App. – Austin 1991, pet. ref’d); see also State v. Nelson, 910 P.2d

                                         10
935, 940 (N.M. Ct. App. 1996) (“Applying the plain meaning of the language in

light of the rule of lenity, ‘under this section’ does not include within its purview

out-of-state convictions.”); Goulder v. Ariz. Dept. of Trans., Motor Vehicle Div.,

877 P.2d 280, 281 (Ariz. 1994) (When a statute refers to a prior charge of violating

a specific statute, a charge of violating another state’s statute will not suffice.);

People v. Gagne, 485 N.Y.S.2d 938, 939-40 (N.Y. Co. Ct. 1985) (When a statute

does not expressly provide that an out-of-state conviction may be used as a

predicate conviction, then an in-state conviction is required.). Therefore, because

section 22.01 of the Texas Penal Code specifically required that the prior

conviction be “an offense … under this section” before it could be used to elevate

an assault family violence to a third degree, Applicant’s out-of-state conviction

could not be used as it was not “an offense … under this section.” See Tex. Penal

Code §22.01(b)(2) (West 2001).         Applicant’s Tarrant County offense was

improperly enhanced to a third degree felony.

      Because Applicant has no other prior assault convictions that could be used

to enhance this Tarrant County offense to a third degree felony, Applicant should

have been charged with a Class A Misdemeanor. See Tex. Penal Code §22.01(b)

(West 2001). An illegal sentence can be challenged at any time. Ex parte Pena,

71 S.W.3d 336, 339 (Tex. Crim. App. 2002). “An illegal sentence is one that is not

authorized by law; therefore, a sentence that is outside the range of punishment



                                         11
authorized by law is considered illegal.” Ex parte Parrott, 396 S.W.3d 531, 534

(Tex. Crim. App. 2013) (citation omitted). “An individual adjudged guilty of a

Class A misdemeanor shall be punished by … confinement in jail for a term not to

exceed one year.” Tex. Penal Code §12.21(2). Applicant’s three year conviction

was outside the range of punishment authorized by law. In short, Applicant’s

sentence was illegal. See Ex parte Parrott, 396 S.W.3d at 534.

       When an applicant receives an illegal sentence as a result of a negotiated

plea, and the sentence is outside the range of punishment, he is entitled to

withdraw his plea. See Ex parte Rich, 194 S.W.3d 508, 515 (Tex. Crim. App.

2006). This conviction should be VACATED and Applicant remanded back to

Tarrant County to answer the charges set out in the indictment. Id.



Requested Issue 2: Whether counsel was ineffective for failing to object to the New
Mexico conviction.

III.   FAILURE TO OBJECT TO THE USE OF THE NEW MEXICO PRIOR
       CONVICTION FOR ENHANCEMENT IN THIS CASE DID NOT
       CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE
       THE ISSUE WAS NOT WELL CONSIDERED AND CLEARLY
       DEFINED.

       Because Applicant is entitled to relief as his Tarrant County sentence was

illegal, and Applicant is entitled to a new trial as a result, there is no need for this

Court to determine whether he also received ineffective assistance of counsel.

However, if this Court chooses to also consider this claim, the claim should fail

                                          12
because counsel was not ineffective.

      The two-prong test enunciated in Strickland v. Washington applies to

ineffective assistance of counsel claims in non-capital cases. Hernandez v. State,

988 S.W.2d 770, 771 (Tex. Crim. App. 1999).          To prevail on his claim of

ineffective assistance of counsel, the applicant must show counsel's representation

fell below an objective standard of reasonableness, and there is a reasonable

probability the results of the proceedings would have been different in the absence

of counsel's unprofessional errors. Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). Support for Applicant’s claim of ineffective

assistance of counsel must be firmly grounded in the record. See Johnson v. State,

691 S.W.2d 619, 627 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985).

In addition, the court’s evaluation of representation should be “from counsel’s

perspective at the time.” Strickland v. Washington, 466 U.S. at 689.

      First, it was well settled in Texas that out-of-state felonies could be used

generally for enhancement. Garcia v. State, 145 S.W.2d 180, 180 (Tex. Crim.

App. 1940) (“It is well settled that convictions of a felony in other states will

support the enhancement of the penalty.”). While section 22.01 of the Texas Penal

Code specifically required that the prior conviction be “an offense … under this

section,” there was no case law addressing this issue or interpreting what “under

this section” meant.



                                        13
      “[C]ounsel's performance will be measured against the state of the law in

effect during the time of trial and we will not find counsel ineffective where the

claimed error is based upon unsettled law.” Ex parte Chandler, 182 S.W.3d 350,

359 (Tex. Crim. App. 2005) (citation omitted); see also Ex parte Smith, 296

S.W.3d 78, 81 (Tex. Crim. App. 2009) (counsel not ineffective because proper

construction of statute was unresolved and unclear). In 1991, the Third Court of

Appeals considered the DWI statute and held that it prohibited the use of out-of-

state convictions to elevate a DWI to a felony because the statute only allowed “an

offense under this article” to be used. Mitchell v. State, 821 S.W.2d at 422-23.

Therefore, eleven years before Applicant’s plea, a court held that language similar

to the language in section 22.01 of the Texas Penal Code did not allow the use of

out-of-state convictions for enhancement. However, at the time of Applicant’s

plea in 2002, neither the Second Court of Appeals (the typical court for Tarrant

County cases) nor this Court had adopted the Third Court of Appeals’ holding that

a statute that allows only usage of “an offense under this article” prohibits the use

of out-of-state convictions in the DWI context. There was certainly no direction

regarding the application of that language in section 22.01 of the Texas Penal

Code. In short, whether an out-of-state conviction could be used for enhancement

under section 22.01(b)(2) of the Texas Penal Code was an unsettled proposition of

law at the time of Applicant’s plea.



                                         14
      Second, the focus of the case law regarding section 22.01 of the Texas Penal

Code around the time of Applicant’s plea was what constituted sufficient evidence

to prove “family violence” when it was not included in the prior convictions’

judgments. See, e.g., Goodwin v. State, 91 S.W.3d 912, 920 (Tex. App. – Fort

Worth 2002, no pet.); State v. Cagle, 77 S.W.3d 344, 349 (Tex. App. – Houston

[14th Dist.] 2002, pet. ref’d); Collesano v. State, No. 01–01–00984–CR, 2002 WL

2026055, *2 (Tex. App. – Houston [1st Dist.] Aug. 29, 2002, pet. ref’d). Therefore,

the application of “an offense … under this section” to prior convictions in section

22.01 of the Texas Penal Code was not well considered or clearly defined at the

time of Applicant’s plea.

      “[A] bar card does not come with a crystal ball attached.”          Ex parte

Chandler, 182 S.W.3d at 359. Thus, “[i]gnorance of well-defined general laws,

statutes and legal propositions is not excusable and such ignorance may lead to a

finding of constitutionally deficient assistance of counsel, but the specific legal

proposition must be ‘well considered and clearly defined.’” Id. at 358. Because

“the law is not an exact science and it may shift over time,” “an attorney is not

liable for an error in judgment on an unsettled proposition of law…”             Id.

Therefore, counsel did not provide constitutionally deficient assistance of counsel

when he failed to object to the use of Applicant’s New Mexico for enhancement

under section 22.01(b)(2) of the Texas Penal Code because the law was unsettled



                                        15
and not well considered or clearly defined.

      Trial counsel’s representation did not fall below an objective standard of

reasonableness. The failure to satisfy one prong negates a court’s need to consider

the other. Strickland v. Washington, 466 U.S. at 694. Applicant has failed to

prove that he received ineffective assistance of trial counsel.

      Applicant’s claim that he received ineffective assistance of counsel should

be DENIED.


                         CONCLUSION AND PRAYER

      It is respectfully submitted that all things are regular, and the State prays that

this Court find

      a.     The correct jurisdictional inquiry for determining when an applicant is
             suffering a collateral consequence is whether the case affected his
             punishment or conviction in another case and not whether relief would
             ultimately affect the other case;

      b.     Applicant is properly suffering a collateral consequence because this
             case was used to enhance his punishment in his Hood Count
             conviction;

      c.     Because Applicant’s punishment was improperly enhanced to a third
             degree felony, this conviction is VACATED and the case remanded
             back to the trial court for A NEW TRIAL;

      d.     Because the issue was not well considered and clearly defined,
             counsel was not ineffective for failing to object to the use of
             Applicant’s New Mexico case as a prior conviction to enhance this
             case; and




                                          16
      e.    Applicant’s claim that he received ineffective assistance of counsel is
            DENIED.

                                              Respectfully submitted,

                                              SHAREN WILSON
                                              Criminal District Attorney
                                              Tarrant County
                                              /s/ Andréa Jacobs__________
                                              Andréa Jacobs, Assistant
                                              Criminal District Attorney
                                              State Bar No. 24037596
                                              401 West Belknap
                                              Fort Worth, TX 76196-0201
                                              Phone:       817/884-1687
                                              Facsimile: 817/884-1672

                         CERTIFICATE OF SERVICE

      I hereby certify that a copy of the State’s Brief was served on the 26th day of

May, 2015, to Applicant’s counsel, Hon. John Stickels, by electronic mail at

john@stickelslaw.com and first class mail at P.O. Box 121431, Arlington, Texas

76012.

                                              /s/ Andréa Jacobs__________
                                              Andréa Jacobs




                                         17
                      CERTIFICATE OF COMPLIANCE

      The total number of words in this State’s Brief, including any caption,

identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of the issues

presented, statement of jurisdiction, statement of procedural history, signature,

proof of service, certification, certificate of compliance, and/or appendix, is 4371

words, as determined by the word count feature of Microsoft Office Word 2010.

                                             /s/ Andréa Jacobs__________
                                             Andréa Jacobs




                                        18
