                                                                                    ACCEPTED
                                                                                01-14-00121-CR
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           9/15/2015 4:11:02 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                     NO. 01-14-00121-CR

               IN THE COURT OF APPEALS                      FILED IN
            FOR THE FIRST DISTRICT OF TEXAS          1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
                                                     9/15/2015 4:11:02 PM
                                                     CHRISTOPHER A. PRINE
                      PAUL BRIONES                           Clerk
                         Appellant

                              v.

                    THE STATE OF TEXAS
                           Appellee


          On Appeal from Cause Number 1268863
     From the 178th District Court of Harris County, Texas



                   BRIEF FOR APPELLANT



ORAL ARGUMENT REQUESTED                  ALEXANDER BUNIN
                                         Chief Public Defender
                                         Harris County, Texas

                                         DAUCIE SCHINDLER
                                         Assistant Public Defender
                                         TBN 24013495
                                         1201 Franklin, 13th Floor
                                         Houston, Texas 77002
                                         Phone: (713) 368-0016
                                         Fax: (713) 368-9278

                                         Counsel for Appellant




                              1
                       IDENTITY OF PARTIES AND COUNSEL


Appellant                                     Mr. Paul Briones
                                              TDCJ No. 01925826
                                              James Lynaugh Unit
                                              1098 South Highway 2037
                                              Fort Stockton, Texas 79735
Presiding Judge                               The Honorable David Mendoza
                                              178th District Court
                                              1201 Franklin Street, 19th Floor
                                              Houston, Texas 77002
Defense Counsel at Trial                      Mr. John T. Floyd
                                              Mr. Christopher Carlson
                                              The Kirby Mansion
                                              2000 Smith Street
                                              Houston, Texas 77002
                                              (713) 224-0101

Prosecutors at Trial                          Mr. Connie Spence
                                              Ms. Maritza Antu
                                              Assistant District Attorneys
                                              Harris County
                                              1201 Franklin Street, 6th Floor
                                              Houston, Texas 77002
                                              (713) 755-6916

Defense Counsel at Motion for New Trial       Mr. Abraham Fisch

Appellant’s Counsel                           Daucie Schindler
                                              Assistant Public Defender
                                              Harris County
                                              1201 Franklin Street, 13th Floor
                                              Houston, Texas 77002
                                              (713) 274-6717
                                              Daucie.schindler@pdo.hctx.net




                                          2
                                                         TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL ............................................................................... 2

TABLE OF CONTENTS ................................................................................................................. 3

INDEX OF AUTHORITIES ........................................................................................................... 5

STATEMENT OF THE CASE ....................................................................................................... 7

ISSUE PRESENTED ........................................................................................................................ 8

STATEMENT OF FACTS ............................................................................................................... 9

           The Trial ................................................................................................................................... 9

           The Motion for New Trial ................................................................................................... 10

SUMMARY OF THE ARGUMENTS ......................................................................................... 16

ISSUE ONE ...................................................................................................................................... 17

ISSUE TWO ...................................................................................................................................... 17

ISSUE THREE ................................................................................................................................. 17

ARGUMENT .................................................................................................................................... 17

           Standard of Review ............................................................................................................... 17

           Deficient performance under the totality of the circumstances ............................. 20

           Deficient Performance – failure to secure the attendance of critical witnesses ........... 20

           Deficient Performance – failure to impeach complainant .............................................. 23

           Deficient Performance – failure to present mitigating evidence .................................... 25

           Deficient Performance – failure to impeach the State’s punishment evidence ............ 26

           Prejudice ................................................................................................................................. 27

CONCLUSION ................................................................................................................................ 34

PRAYER ............................................................................................................................................ 35

                                                                           3
CERTIFICATE OF COMPLIANCE ........................................................................................... 36

CERTIFICATE OF SERVICE ...................................................................................................... 37




                                                               4
                                                INDEX OF AUTHORITIES

Cases

Avery v. Prelesnik, 548 F.3d 434 (6th Cir. 2008) ...............................................................................29

Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990) ............................................................................26

Cannon v. State, 252 S.W.3d 342 (Tex. Crim. App. 2008) ............................................................33

Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004) .............................................................19

Coleman v. State, 966 S.W.2d 525 (Tex. Crim. App.1998) ............................................................31

Cuyler v. Sullivan, 446 U.S. 335 (1980) ..............................................................................................18

Doherty v. State, 781 S.W.2d 439 (Tex. App. -Houston [1st Dist.] 1998) ....................................30

Everage v. State, 893 S.W.2d 219 (Tex. App. -Houston [1st Dist.] 1995) ............................. 29, 32

Ex parte Amezquita, 223 S.W.3d 363 (Tex. Crim. App. 2006) .............................................. 21, 23

Ex parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983) ..............................................................31

Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990) .........................................................20

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) .............................................................20

Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) ........................................................25

Holden v. State, 201 S.W.3d 761 (Tex. Crim. App. 2006) ............................................................20

Jackson v. State, 857 S.W.2d 678 (Tex. App. -Houston [14th Dist.] 1993, pet. ref'd) ......... 21, 23

Lockhart v. Fretwell, 506 U.S. 364 (1993) ..........................................................................................31

Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1992) ...................................................................................21

Martinez v. Ryan, 132 S.Ct. 1309 (2012) ..........................................................................................19

Matthews v. Abramajtys, 319 F.3d 780 (6th Cir. 2003) ......................................................................29

Montgomery v. Peterson, 846 F.2d 407 (7th Cir. 1988)........................................................................30

                                                                   5
Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999) .......................................................................... 21, 24

Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985) ...............................................................................29

Powell v. Alabama, 287 U.S. 45 (1932) ..............................................................................................19

Rivera v. State, 123 S.W.3d 21 (Tex. App. -Houston [1st Dist.] 2003, pet. ref'd) .......................26

Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006) ..........................................................20

Shanklin v. State, 190 S.W.3d 154 (Tex. App. -Houston [1st Dist.] 2005, pet. dism'd) .............33

State v. Thomas, 768 S.W.2d 335 (Tex. App. -Houston [14th Dist.] 1989, no pet.) ....................32

Strickland v. Washington, 466 U.S. 688 (1984) ........................................................................... Passim

Toliver v. Pollard, 688 F.3d 853 (7th Cir. 2012) .................................................................................30

United States v. Cronic, 466 U.S. 648 (1984)............................................................................... 18, 33

U.S., ex rel, Cross v. DeRobertis, 911 F.2d 1008 (7th Cir. 1987) .......................................................30

Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006) ..................................................................................24

Walker v. State, 195 S.W.3d 250 (Tex. App. -San Antonio 2006, no pet.) .................................25

Washington v. Texas, 388 U.S. 14 (1967) ...........................................................................................31

Wiggins v. Smith, 539 U.S. 510 (2003) ........................................................................................ 21, 25

Wood v. State, 260 S.W.3d 146 (Tex. App. -Houston [1st Dist.] 2008, no pet.) .........................25




                                                                  6
                                         STATEMENT OF THE CASE

         Mr. Briones was charged by indictment, on September 16, 2010, in the 176th

District Court of Harris County, with the felony offense of indecency with a child in

Cause Number 1268863.1 (C.R. at 12). Mr. Briones was represented at trial by Mr.

Abraham Fisch. (C.R. at 15). After a jury trial, Mr. Briones was found guilty of

indecency with a child and assessed a ten (10) year probated sentence.2 (C.R. at 15-

20).     On July 12, 2011, a Motion for New Trial was filed. (C.R. at 21-23). On July

20, 2011, the trial court granted the Motion for New Trial. (C.R. at 24). On October

17, 2011, the case was transferred to the 178th District Court of Harris County,

Texas.3 (C.R. at 31-32).

         Mr. Briones again entered a plea of not guilty to the charge of indecency with a

child in Cause Number 1268863.4                       (4 R.R. at 71-72).             On January 7, 2014, he

proceeded to trial by jury, represented at trial by Mr. John Floyd and Mr. Christopher

Carlson. (C.R. at 146). On January 17, 2014, the jury found Mr. Briones guilty of

indecency with a child and after trial on punishment, the jury sentenced him to twenty

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




1 Mr. Briones was also charged in cause number 1268861 with aggravated sexual assault of a child.
2 He was also found guilty of aggravated sexual assault of a child and sentenced by the jury to seven (7) years in the
Institutional Division of the Texas Department of Criminal Justice
3 The Motion for New Trial was granted as to cause number 1268861 as well and this case was also transferred to the

178th District Court.
4 Mr. Briones entered a plea of not guilty to the charge of aggravated sexual assault of a child in cause number 1268861

as well.

                                                           7
Criminal Justice.5 (C.R. at 50, 61). Mr. Briones filed timely Notice of Appeal and a

Motion for New Trial was filed through attorney Abraham Fisch, on February 17,

2014. (C.R. at 68, 72-90).

         The hearing on the Motion for New Trial began on April 2, 2014. Although

the Motion for New Trial was overruled by operation of law on April 2, 2014, the

hearing continued on April 10, 2014, April 11, 2014, and April 25, 2014. The Motion

for New Trial was denied by the trial court on May 2, 2014. (C.R. at 148-149). Mr.

Briones requested abatement for an out of time hearing on the Motion for New Trial.

However, this Court, on June 30, 2015, denied the abatement, but granted Mr.

Briones’ request that the record of the untimely portion of the hearing and the trial

court’s ruling be considered to resolve matters related to this direct appeal.

                                             ISSUES PRESENTED

                                                 ISSUE ONE

         THE DISTRICT COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHERE
         DEFENSE COUNSEL FAILED TO SECURE THE ATTENDANCE OF MULTIPLE
         WITNESSES IN VIOLATION OF MR. BRIONES’ RIGHTS UNDER THE SIXTH
         AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
         CONSTITUTION AND UNDER ART. I, §§ 10 AND 19 OF THE TEXAS
         CONSTITUTION.
         .




5The jury acquitted Mr. Briones of aggravated sexual assault in cause number 1268861 and the record of this charge was
expunged on January 16, 2014.

                                                          8
                                                   ISSUE TWO

         THE DISTRICT COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHERE
         DEFENSE COUNSEL FAILED TO IMPEACH THE COMPLAINING WITNESS
         WITH MULTIPLE PRIOR INCONSISTENT STATEMENTS IN VIOLATION OF
         MR. BRIONES’ RIGHTS UNDER THE SIXTH AND FOURTEENTH
         AMENDMENTS TO THE UNITED STATES CONSTITUTION AND UNDER ART.
         I, §§ 10 AND 19 OF THE TEXAS CONSTITUTION.

                                                 ISSUE THREE

         THE DISTRICT COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHERE
         DEFENSE COUNSEL FAILED TO PRESENT MITIGATING EVIDENCE AT
         PUNISHMENT IN VIOLATION OF MR. BRIONES’ RIGHTS UNDER THE SIXTH
         AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
         CONSTITUTION AND UNDER ART. I, §§ 10 AND 19 OF THE TEXAS
         CONSTITUTION.


                                            STATEMENT OF FACTS

                                                    THE TRIAL

         The evidence at trial established that sometime around July, 2007, Mr. Briones’

niece6, L.D., told her aunt, Katrina Pena, that several years prior, in approximately

December, 2004, she had been inappropriately touched by her uncle as she lay on the

floor of his living room surrounded by her sister and cousins who were asleep at the

time. (4 R.R. at 82-100). There were no other allegations of abuse made by L.D. or

by any of the other children. There was no action taken by either L.D. or her aunt

until about six months later when Ms. Pena informed L.D.’s mother of her allegation.

(4 R.R. at 108-116). Although her parents unsuccessfully attempted to obtain medical

6 Because the complainant was a minor at the time of the alleged offense, for purposes of this appeal, she will be referred
to as L.D.

                                                            9
help for L.D., the police were not contacted by the family until May, 15, 2010; nearly

three years after L.D.’s initial outcry to her aunt. (4R.R. at 175-199). Mr. Briones was

acquitted of the charge of aggravated sexual assault of a child, but convicted of

indecency and sentenced to twenty (20) years confinement in the Institutional

Division of the Texas Department of Criminal Justice. (9 R.R. at 8, 10 R.R. at 190).

                           THE MOTION FOR NEW TRIAL

      Through a new attorney, Mr. Abraham Fisch, a claim of ineffective assistance

of counsel was raised in a Motion for New Trial. (C.R. at 72). The Motion for New

Trial was denied by the trial court on May 2, 2014. (C.R. at 148-149). At the hearing

on the motion, Mr. Floyd testified that he had been hired by Mr. Briones to represent

him against the allegations of indecency with a child and aggravated sexual assault of a

child. Mr. Briones was convicted of indecency and sentenced to twenty (20) years in

prison. He was acquitted of aggravated sexual assault of a child. (13 R.R. at 17).

  MR. FLOYD FAILED TO CHALLENGE THE CREDIBILITY OF THE COMPLAINANT

      Mr. Floyd testified that he was aware of the fact that Mr. Briones had

previously been convicted by a jury on both counts, but those convictions were

reversed by the trial court when it was discovered that the jury considered an exhibit

that had not been admitted into evidence. As part of his trial preparation, Mr. Floyd

reviewed the transcript from the previous trial. (13 R.R. at 19-30). He considered the

testimony of the complainant about what allegedly happened on the night in question

to be the heart of the case. Despite the significance of her testimony about that night,
                                          10
Mr. Floyd did not use her prior inconsistent statements at the previous trial to

impeach her credibility because he either did not recognize the inconsistencies or he

thought them immaterial.7 (13 R.R. at 57-64).                                 Mr. Floyd’s cross-examination

consisted nearly entirely of open ended questions similar to those already covered

during the State’s direct. (13 R.R. at 93-94; 6 R.R. at 127-233). According to Mr.

Floyd it was not his strategy to conduct “cross-examination with a transcript in [his]

hand” (13 R.R. at 98) and the inconsistent statements of the complainant “didn’t

mean anything to our defense.” (14 R.R. at 24).

         Although L.D. testified to being depressed and angry Mr. Floyd had obtained

hundreds of posts on her Facebook page contradicting her testimony regarding her

mental state, and in one instance posting that “[i]f you upset me, you better get out of

my way,” but Mr. Floyd did not impeach L.D. with this information. (13 R.R. at 136-

137). Mr. Briones’ step-daughter, Ashley, and his son, Jonathon, spent a lot of time

around L.D. and were available to testify as to her reputation for truthfulness. Ashley

would have testified that L.D. was a manipulative liar and a troublemaker.

         L.D. testified that Ashley and Jonathon were sleeping on the floor next to her

when the alleged sexual misconduct occurred. Ashley and Jonathon would have


7 For example, L.D. testified at trial in 2011 that her uncle came home and went to his bed room before going into the
kitchen, but in 2014, L.D. testified that her uncle came home and went straight into the kitchen. (13 R.R. at 89-90). She
testified at trial in 2011 that she was able to see her uncle in the kitchen because of the proximity and the light from the
refrigerator, but in 2014, she testified that she could not see, but only hear, her uncle in the kitchen. (13 R.R. at 91-92).
She testified in 2014 that her uncle adjusted the blankets before making a sandwich in the kitchen, but in 2011 she
testified that he adjusted the blankets after leaving the kitchen. (13 R.R. at 95-97). In 2011, L.D. testified that after
adjusting the blankets, Mr. Briones returned to the kitchen for five to ten minutes, but in 2014 she testified that he went
from the kitchen to his bedroom. (13 R.R. at 99).

                                                            11
testified that they did not have any recollection of the events in question, but Mr.

Floyd did not provide this testimony at trial for the jury’s consideration. (13 R.R. at

138-142). Mr. Floyd did not provide the testimony of the complainant’s sister, Kayla,

(although she had testified at the trial in 2011, was subpoenaed, and available to testify

at the trial in 2014) because “they were still interviewing her” and he was “unsure

about what her testimony might be, up until the last day.” (13 R.R. at 149).

          MR. FLOYD FAILED TO PROVIDE CRUCIAL EVIDENCE AT TRIAL

      Although he acknowledge the significance of eye witness testimony, Mr. Floyd

did not call any of the available eye witnesses, including Mr. Briones’ children and his

wife, who would have been able to refute the complainant’s testimony that on the

night in question, she, her sister, and her cousins were sleeping on the floor, and that

her aunt, Joanna Briones, was asleep when her uncle got home. Mr. Floyd did not call

them because they are members of Mr. Briones’ immediate family and he was

concerned about possible harmful testimony.          (13 R.R. at 65-81).       Mr. Floyd

acknowledged that he could have approached the bench and requested a hearing to

determine the admissibility of the testimony he deemed harmful from these witnesses,

but he didn’t even attempt to do so. (14 R.R. at 175).

      Although he testified that he had reviewed the medical records in this case and

agreed that substance abuse by the complainant is important, Mr. Floyd did not call

the psychologist who ultimately treated L.D. even though L.D. admitted during her

therapy sessions to having a very tumultuous relationship with her father and that she
                                           12
was abusing alcohol, marijuana, and pain pills during the time she decided to make her

initial outcry to her aunt. (13 R.R. at 105-108). In addition, a nurse practitioner

treated L.D. after the psychologist. discharged her from therapy for not “being open.”

(13 R.R. at 171). L.D. had been diagnosed with and was being treated for bipolar

disorder, but Mr. Floyd did not present this evidence because, although he agreed that

the evidence would have benefitted Mr. Briones’ case, he did not know how to

present it without it “backfiring and hurting the client.” (13 R.R. at 109-116).

      In preparation for trial, Mr. Floyd obtained the expert assistance of Dr. Aaron

Pierce who was available to testify at trial. Mr. Floyd did not recall giving Dr. Pierce

any of L.D.’s medical records or previous trial testimony to review, but he thought

they had discussed the records with him and determined that his testimony would not

be helpful. (13 R.R. at 129-131). In addition, Mr. Floyd hired an investigator who

questioned the family in this case and determined that L.D. loved spending time at the

Briones’ house and continued to go there without complaint for years following the

alleged conduct.    The family contradicted L.D.’s testimony regarding the basic

functioning of the Briones’ household indicating that Joanna Briones always waited

up for her husband to come home and would not have been asleep at the time in

question. Mrs. Briones also either left food out for her husband him or told him to

pick something up on his way home, but he did not ever prepare food when he got

home late from work. (13 R.R. at 152-156).



                                           13
      The investigator also uncovered evidence that L.D. had asked Paul and Joanna

Briones if she could live with them shortly before the initial outcry occurred and they

had informed her that she could not because she was too much of a problem child.

Despite having this evidence, Mr. Floyd argued in closing that he had “no idea why

she’s making this story up.” (14 R.R. at 127). The reason Mr. Floyd offered for

failing to utilize this information was that he “chose not to call any witness in [Mr.

Briones’] defense.” (13 R.R. at 163).

      L.D.’s parents, Lucinda and Karl, first reported their daughter’s allegations to

the Houston Police Department nearly three years after L.D.’s initial outcry. The

HPD officer that they reported the incident to was Officer Munoz. This initial report

contained several inconsistencies as compared to the trial testimony including an

allegation of penile penetration. Mr. Floyd issued a subpoena for Officer Munoz and

he was available to testify at trial. Although Lucinda denied the false statements in the

first report to police at trial, Mr. Floyd did not call Officer Munoz to impeach her

testimony because he believed that Officer Munoz was “extremely interested in

helping the State in this case” and he would have been “difficult to control.” (13 R.R.

at 183-200).

    MR. FLOYD FAILED TO PRESENT MITIGATING EVIDENCE AT PUNISHMENT

      Ultimately, Mr. Briones was found guilty and sentenced to twenty years in

prison as compared to the ten year probated sentence he received at the previous trial

in this case. (13 R.R. at 208). At punishment, the State called numerous witnesses,
                                           14
but Mr. Floyd called only one witness, Mr. Briones’ sister: Oralia Schmidt, on Mr.

Briones’ behalf. Although he acknowledged that it was mitigating, Mr. Floyd did not

offer evidence from Mr. Briones’ previous employers, including Judge Jefferson,

Judge McSpadden, and Judge Cagle, who provided favorable character evidence on

Mr. Briones’ behalf at the previous trial. (13 R.R. at 216-217; Defendant’s Exhibits

17-20). According to Mr. Floyd, he did not provide the jury with this mitigating

evidence because “recommendations from work saying he did a good job just really

didn’t mean a lot to [him].” (14 R.R. at 179).

      In addition, during the cross-examination of the one character witness that he

called on Mr. Briones’ behalf, Mr. Floyd failed to object when the State repeatedly

cross examined Ms. Schmidt with evidence not before the jury at that time. (13 R.R.

at 220-223). At one point during the cross of Ms. Schmidt, the State improperly

alleged that Mr. Briones failed to pay child support for his son from a previous

relationship, but Mr. Floyd failed to correct the jury’s impression on this issue. (13

R.R. at 223-225; See Defendant’s Exhibit 16). Mr. Floyd admitted that it would have

been easy to obtain certified government documents establishing both that Mr.

Briones had paid child support and also that Mr. Briones had an honorable military

record, but Mr. Floyd “didn’t do that.” (14 R.R. 1t 169).

      At punishment, the State called Dr. Lawrence Thompson who would testify,

without objection, that “[t]he only way to be certain a sex offender is not going to

reoffend, is to incarcerate them.” (16 R.R. at 134-135). Although Mr. Floyd had an
                                           15
expert, Dr. Pierce, who was available and could have “definitely” challenged Dr.

Thompson’s testimony, he did not call him because he did not “find that there was

anything from Thompson that was so damaging.” (16 R.R. at 136).

                              SUMMARY OF THE ARGUMENTS

      The trial court abused its discretion in denying Mr. Briones’ Motion for New

Trial which alleged that his trial attorneys rendered ineffective assistance of counsel.

In failing to secure the testimony of crucial, exculpatory witnesses for Mr. Briones

who would have offered material facts and impeached the testimony of the

complainant, trial counsel’s conduct was objectively deficient and prejudiced the

defense. Trial counsel’s failure to uncover and utilize readily available evidence to

impeach the credibility of the complainant, where her credibility was critical cannot be

considered strategic and was objectively deficient performance.        In addition, at

punishment, trial counsel failed to present a plethora of mitigating evidence that was

readily available. The harm caused by the lack of investigation into and presentation

of mitigation evidence is apparent as the jury assessed the maximum punishment

allowed for a second degree felony. As a result, Mr. Briones’ constitutional right to

present a defense was eviscerated. The trial court’s findings that counsel used sound

trial strategy are not entitled to deference because the record supports a finding that

counsel failed to understand and present crucial evidence in support of the defense.




                                          16
                                    ISSUE ONE

      THE DISTRICT COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHERE
      DEFENSE COUNSEL FAILED TO SECURE THE ATTENDANCE OF MULTIPLE
      WITNESSES IN VIOLATION OF MR. BRIONES’ RIGHTS UNDER THE SIXTH
      AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
      CONSTITUTION AND UNDER ART. I, §§ 10 AND 19 OF THE TEXAS
      CONSTITUTION.
      .
                                   ISSUE TWO

      THE DISTRICT COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHERE
      DEFENSE COUNSEL FAILED TO IMPEACH THE COMPLAINING WITNESS
      WITH MULTIPLE PRIOR INCONSISTENT STATEMENTS IN VIOLATION OF
      MR. BRIONES’ RIGHTS UNDER THE SIXTH AND FOURTEENTH
      AMENDMENTS TO THE UNITED STATES CONSTITUTION AND UNDER ART.
      I, §§ 10 AND 19 OF THE TEXAS CONSTITUTION.

                                  ISSUE THREE

      THE DISTRICT COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHERE
      DEFENSE COUNSEL FAILED TO PRESENT MITIGATING EVIDENCE AT
      PUNISHMENT IN VIOLATION OF MR. BRIONES’ RIGHTS UNDER THE SIXTH
      AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
      CONSTITUTION AND UNDER ART. I, §§ 10 AND 19 OF THE TEXAS
      CONSTITUTION.

                                    ARGUMENT

Standard of Review

      In the seminal case of Strickland v. Washington, 466 U.S. 668 (1984), the Supreme

Court granted certiorari to determine what standards are to be applied in adjudicating

claims of ineffective assistance of counsel. The Court reaffirmed “that the Sixth

Amendment right to counsel exists, and is needed, in order to protect the

fundamental right to a fair trial.” Id. at 684. Although the Due Process Clauses

                                          17
guarantee “a fair trial,” it is the Sixth Amendment which “defines the basic elements

of a fair trial…” Id. at 685. As Justice O’Connor reasoned,

       A fair trial is one in which evidence subject to adversarial testing is presented to
       an impartial tribunal for resolution of issues defined in advance of the
       proceedings. The right to counsel plays a crucial role in the adversarial system embodied in
       the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord
       defendants the ‘ample opportunity to meet the case of the prosecution.’
                                                       ***
       The Sixth Amendment recognizes the right to the assistance of counsel because it envisions
       counsel’s playing a role that is critical to the ability of the adversarial system to produce just
       results. An accused is entitled to be assisted by an attorney, whether retained or appointed,
       who plays the role necessary to ensure that the trial is fair. (Emphasis added).

       Id.    In the final analysis, “[t]he benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result. Id. at 686. “Unless a defendant charged with a serious offense

has counsel able to invoke the procedural and substantive safeguards that distinguish

our system of justice, a serious risk of injustice infects the trial itself.” Cuyler v.

Sullivan, 446 U.S. 335, 343 (1980). Absent competent counsel, ready and able to

subject the prosecution’s case to the “crucible of meaningful adversarial testing,” there

can be no guarantee that the adversarial system will function properly to produce just

and reliable results. United States v. Cronic, 466 U.S. 648, 656 (1984). “Thus, the right

to the effective assistance of counsel is recognized not for its own sake, but because

of the effect it has on the ability of the accused to receive a fair trial.” Cronic, at 658.




                                                  18
       As the Supreme Court reaffirmed in Martinez v. Ryan, 132 S.Ct. 1309, 1317

(2012):

       Defense counsel tests the prosecution’s case to ensure that the proceedings
       serve the function of adjudicating guilt or innocence, while protecting the rights
       of the person charged. See, e.g., Powell v. Alabama, 287 U.S. 45, 68-69
       (1932)(“[The defendant] requires the guiding hand of counsel at every step in
       the proceedings against him. Without it, though he be not guilty, he faces the
       danger of conviction because he does not know how to establish his
       innocence”).

       The Court set out a two component standard with respect to claims of

ineffective assistance of counsel:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the ‘counsel’ guaranteed by the Sixth Amendment. Second, the
       defendant must show that the deficient performance prejudiced the defense.
       This requires showing that counsel’s errors were so serious as to deprive the
       defendant of a fair trial, a trial whose result is reliable. Unless a defendant
       makes both showings, it cannot be said that the conviction or death sentence
       resulted from a breakdown in the adversary process that renders the result
       unreliable.

Strickland, at 687.

       Here, Mr. Briones raised his allegations of ineffective assistance of counsel

through a motion for new trial. Therefore, this court must determine whether the

trial court abused its discretion in denying the motion. A trial court abuses its

discretion if it acts without reference to any guiding principles or in an arbitrary or

unreasonable manner. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).

The abuse of discretion standard may not be used to insulate questions of law from

plenary review on appeal. After all, a deferential standard with respect to a trial
                                           19
court’s denial of a motion for new trial is only applicable to “a trial court’s

determination of historical facts.” Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim.

App. 2006). Although deference should be afforded to a trial court’s underlying

factual determinations, the objective reasonableness of the challenged conduct is a

question of law reviewed de novo. Strickland, 466 U.S. at 698; Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997).

             Deficient Performance under the totality of the circumstances

      To establish the first prong of Strickland, Mr. Briones must show by a

preponderance of the evidence that trial counsel’s performance fell below the

objective standards of prevailing professional norms.        Counsel’s performance is

judged by “the totality of the representation.”         The deficiencies in counsel’s

representation of Mr. Briones permeated the proceedings. A multitude of examples

are provided below. The many instances of professional neglect and mistreatment

work to paint a picture of an extremely unprofessional course of representation in a

very serious case. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

      Deficient Performance – failure to secure the attendance of critical
witnesses

      Trial counsel has a duty to make an independent investigation of the facts of a

case. Ex parte Welborn, 785 S.W.2d 391, 395 (Tex. Crim. App. 1990). The United

States Supreme Court has explained that “’[s]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

                                           20
unchallengeable; and strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation.’” Wiggins v. Smith, 539 U.S. 510, 521 (2003)(quoting

Strickland, 466 U.S. at 690-691). Because there is a “crucial distinction between

strategic judgments and plain omissions,” Loyd v. Whitley, 977 F.2d 149, 158 (5th Cir.

1992), courts are “not required to condone unreasonable decisions parading under the

umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it

appears on the face of the record that counsel made no strategic decision at all.”

Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999).

       Mr. Floyd had a constitutional duty to present “available evidence and

arguments” to support Mr. Briones’ defense. Jackson v. State, 857 S.W.2d 678, 683

(Tex. App. –Houston [14th Dist.] 1993, pet. ref’d). He was obligated to conduct a

reasonable investigation in an effort to present the most persuasive case that he could.

This duty encompasses presenting evidence to demonstrate Mr. Briones’ innocence,

undermine the prosecution’s case, or raise a reasonable doubt as to guilt. See Ex parte

Amezquita, 223 S.W.3d 363, 368 (Tex. Crim. App. 2006).

       Mr. Floyd had available at trial, the testimony of several members of Mr.

Briones’ family who would have been able to contradict many of the allegations of the

complainant.     Joanna Briones would have been able to offer testimony that

contradicted the complainant’s assertion that her aunt was asleep when Mr. Briones



                                            21
returned home from work on the night in question. She also would have been able to

offer her opinion as to her niece’s reputation for truthfulness.

      Most importantly, Mrs. Briones would have offered testimony that she and Mr.

Briones informed the complainant a few days before her initial outcry that she could

not move in with them because she was too problematic a child at that time. Mr.

Floyd would argue to the jury in summation that he did not know why L.D. would

make up this story when the answer to that question was at his fingertips, but he

failed to present the evidence of the answer to the jury. The State added fuel to the

already raging fire when they asked the jury during summation, “Why? Good God,

why would she want to make this up?” (8 R.R. at 46).

      L.D.’s sister and two cousins were alleged to have been present and in the

room on the night in question, but none of them had any recollection of the events as

alleged by L.D. and none of them had ever experienced inappropriate behavior by Mr.

Briones. L.D.’s cousin, Ashley, was available to offer her opinion that L.D. was a

manipulative liar and troublemaker who often lied to get her way or so others would

pity her. Ashley was also able to establish L.D.’s volatile relationship with her own

parents and her sexual proclivity that materialized right around the time of her initial

outcry, but Mr. Floyd did not call her to the stand. (13 R.R. at 138-141; Defendant’s

Exhibit 12). His explanation that he feared harmful testimony from the witnesses is

not reasonable in light of his acknowledgment that he could have approached the



                                           22
bench and requested a hearing to determine the admissibility of any testimony he

deemed harmful, but he didn’t even attempt to do so. (14 R.R. at 175).

      Although he testified that he had reviewed the medical records in this case and

agreed that substance abuse by the complainant is important, Mr. Floyd did not call

the psychologist who ultimately treated L.D. even though L.D. admitted during her

therapy sessions to having a very tumultuous relationship with her father and that she

was abusing alcohol, marijuana, and pain pills during the time she decided to make her

initial outcry to her aunt. (13 R.R. at 105-108). In addition, the nurse practitioner

who treated L.D. after the psychologist discharged her from therapy for not “being

open” and whose primary role was to assist L.D. with the treatment of bipolar

disorder was available to testify, but Mr. Floyd did not call her either. Although he

agreed that the evidence would have benefitted Mr. Briones’ case he did not know

how to present it without it “backfiring and hurting the client.” (13 R.R. at 109-116).

      Deficient Performance – failure to impeach the complainant

      Trial counsel had a constitutional duty to present “available evidence and

arguments” to support Mr. Briones’ defense. Jackson, 857 S.W.2d at 683. This duty

encompasses presenting evidence to demonstrate Mr. Briones’ innocence, undermine

the prosecution’s case, or raise a reasonable doubt as to guilt. See Ex parte Amezquita,

223 S.W.3d at 368. Trial counsel’s professed reasons for failing to use the previous

inconsistent statements of the complaining witness makes clear the unavailing nature

of his claim of trial strategy. Trial counsel’s explanation for not impeaching L.D. with
                                           23
her previous inconsistent statements – that he did not want to make the jury mad – is

an after-the-fact excuse unsupported by either logic or reason. See Virgil v. Dretke, 446

F.3d 598, 611 (5th Cir. 2006)(“When trial counsel presents an [explanation] attempting

to justify his performance at trial for facially unexplainable conduct, the justifications

not evident on the record and presented for the first time in response to a petition for

habeas corpus…have little value.”).

       Trial counsel’s assertion that prior inconsistent statements of the complainant

were immaterial is not supported by the record. The complainant was the most

critical witness for the State and their entire case hinged on her credibility; indeed the

State emphasized the importance of the credibility of the complainant repeatedly

during summation going so far as to argue that “if you believe what [L.D.] says, that is

evidence and Paul Briones is guilty” and “it all goes down to credibility…[d]o you

believe [L.D.]?” (8 R.R. at 46). Trial counsel’s cross-examination of L.D. did more

harm than good as it created the false impression that her assertion has been

consistent, rather than expose her as untruthful. See Moore v. Johnson, 194 F.3d at 611-

612 (Strickland does not require deference to claim of trial strategy “where conduct

was not motivated by ‘any strategic purpose that could conceivably have yielded any

benefit to the defense.’”).

       The fact that trial counsel did not comprehend the significance of the critical

impeachment evidence –which eviscerates his claimed strategic reason for not eliciting

it – is fortified by his failure to mention her credibility issues even once during
                                           24
summation. See Walker v. State, 195 S.W.3d 250, 260 (Tex. App. –San Antonio 2006,

no pet.)(rejecting claim of trial strategy where counsel “failed even to follow his own

flawed strategy.”). The State however, made L.D.’s credibility the end all be all of the

case when they argued that “it all goes down to credibility.” (8 R.R. at 46). Therefore,

this Court should not defer to the trial court’s flawed finding that trial counsel made a

sound strategic decision not to present L.D.’s prior inconsistent statements. See Wood

v. State, 260 S.W.3d 146, 148 (Tex. App. –Houston [1st dist.] 2008, no pet.)(“We agree

with appellant that his counsel could have no reasoning or strategy” that explains his

challenged conduct).

      Deficient Performance – failure to present mitigating evidence

      Although the Strickland standard was not always applied in Texas to claims of

ineffective assistance of counsel at the punishment phase of a noncapital trial, the

Court of Criminal Appeals has unambiguously adopted that standard for such claims.

Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). Thus, the same two-

prongs of deficient performance and prejudice laid out in Strickland are applicable to

punishment proceedings. Wiggins v. Smith, 539 U.S. at 510.

      Mr. Briones was found guilty and sentenced to twenty years in prison as

compared to the ten year probated sentence he received at the previous trial in this

case. (13 R.R. at 208). At punishment, the State called numerous witnesses, but Mr.

Floyd called only one witness, Mr. Briones’ sister: Oralia Schmidt, on Mr. Briones’

behalf. Although he acknowledged that it was mitigating, Mr. Floyd did not offer
                                           25
evidence from Mr. Briones’ previous employers, including Judge Jefferson, Judge

McSpadden, and Judge Cagle, who provided favorable character evidence on Mr.

Briones’ behalf at the previous trial, nor did he offer evidence of Mr. Briones’

honorable military service. (13 R.R. at 216-217). According to Mr. Floyd, he did not

provide the jury with this mitigating evidence because “recommendations from work

saying he did a good job just really didn’t mean a lot to [him]” (14 R.R. at 179) and

although it would have been easy to demonstrate Mr. Briones’ military service, he just

“didn’t do that.” (14 R.R. at 169).

      No reasonable strategy can be inferred from the failure to present this

mitigating evidence to the jury. A failure to uncover and present mitigating evidence

cannot be justified as a tactical decision when defense counsel has “not ‘fulfilled their

obligation to conduct a thorough investigation of the defendant’s background.”

Rivera v. State, 123 S.W.3d 21, 31 (Tex. App. –Houston [1st Dist.] 2003, pet. ref’d);

Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir. 1990)(counsel failed to present

defendant’s medical history even though counsel was informed that defendant had

been institutionalized on several occasions in the past).

      Deficient Performance – failure to impeach the State’s punishment
evidence.

      In addition, during the cross-examination of the one character witness that he

called on Mr. Briones’ behalf at punishment, the State improperly alleged that Mr.

Briones failed to pay child support for his son from a previous relationship, but Mr.

                                           26
Floyd failed to correct the jury’s impression on this issue. (13 R.R. at 223-225; See

Defendant’s Exhibit 16). Mr. Floyd admitted that it would have been easy to obtain

certified government documents establishing both that Mr. Briones had paid child

support, but Mr. Floyd “didn’t do that.” (14 R.R. 1t 169).

         The State relied on the testimony of Dr. Lawrence Thompson who would

testify at punishment, without objection, that “[t]he only way to be certain a sex

offender is not going to reoffend, is to incarcerate them.” (16 R.R. at 134-135).

Although Mr. Floyd had an expert, Dr. Pierce, who was available and could have

“definitely” challenged Dr. Thompson’s testimony, he did not call him because he did

not “find that there was anything from Thompson that was so damaging.” (16 R.R. at

136). Even looking with deference to trial counsel’s perspective at the time, his

misunderstanding of the magnitude of Dr. Thompson’s testimony is objectively

unreasonable.

         Prejudice

         With respect to the prejudice showing, the Court rejected application of an

“outcome determinative” test stressing that “we believe that a defendant need not

show that counsel’s deficient conduct more likely than not altered the outcome in the

case.”    Strickland, 466 U.S. at 693.      As the Court reasoned, “[t]he result of a

proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if

the errors of counsel cannot be shown by a preponderance of the evidence to have determined the

outcome.” Id. at 694. What the defendant must show “is that there is a reasonable
                                              27
probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.           A reasonable probability sufficient to undermine

confidence in the outcome.” Id.

      The “totality of the evidence” must be considered in making the prejudice

determination bearing in mind that

       [s]ome errors will have a pervasive effect on the inferences to be drawn from
      the evidence, altering the entire evidentiary picture, and some will have had an
      isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported
      by the record is more likely to have been affected by errors than one with
      overwhelming record support. Taking the unaffected findings as a given, and
      taking due account of the effect of the errors on the remaining findings, a court
      making the prejudice inquiry must ask if the defendant has met the burden of
      showing that the decision reached would reasonably likely have been different
      absent the errors.
                                                    ***
      [A] court should keep in mind that the principles we have stated do not
      establish mechanical rules. Although those principles should guide the process
      of decision, the ultimate focus of inquiry must be on the fundamental fairness of the
      proceedings whose result is being challenged. In every case the court should be concerned with
      whether, despite a strong presumption of reliability, the result of the particular proceeding is
      unreliable because of a breakdown in the adversarial process that our system counts on to
      produce just results. (Emphasis added).

Id. at 696.   Although “counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment,” that presumption applies only to the question of whether counsel’s

performance was deficient. Id. at 690.

      In his concurring opinion, Mr. Justice Brennan stressed that “the prejudice

standard announced today does not erect an insurmountable obstacle to meritorious

claims, but rather simply requires courts carefully to examine records in light of both
                                                28
the nature and seriousness of counsel’s errors and their effect in the particular

circumstances of the case.” Id. at 703. The Fifth Circuit has held

      [a]lthough ‘the defendant [must] affirmatively prove prejudice,’ there are no
      easily applied or specific guidelines for us to use in determining whether the
      inadequate performance of the defendant’s counsel harmed his case ‘enough’ to
      constitute a violation of the sixth amendment. The Supreme Court in Strickland
      recognizes this problem, and, rather than develop mechanical rules, the Court
      directed us to place our ‘ultimate focus of inquiry … on the fundamental
      fairness of the proceeding whose result is being challenged.’

Nealy v. Cabana, 764 F.2d 1173, 1179 (5th Cir. 1985).

      In applying the “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been different” test, courts have

stressed that “[t]his standard does not require that defendant be found not guilty or

assessed a lenient punishment absent counsel’s errors.” Everage v. State, 893 S.W.2d

219, 222 (Tex. App. –Houston [1st Dist.] 1995). See Matthews v. Abramajtys, 319 F.3d

780, 790 (6th Cir. 2003)(“Of course, a ‘reasonable probability’ does not mean a

certainty, or even a preponderant likelihood … of a different outcome, nor, even

more, that no rational juror could constitutionally find Matthews guilty.” Id.; and

Avery v. Prelesnik, 548 F.3d 434, 439 (6th Cir. 2008), cert. denied, 558 U.S. 932

(2009)(“We do not ask whether Avery was ultimately innocent, but, rather, whether

he was deprived [of] a reasonable shot of acquittal. Here the jury was deprived of the

right to hear [potential alibi] testimony that could have supplied such ‘reasonable

doubt.’”). Moreover, “the components of the Strickland analysis cannot be treated as

hermetically sealed containers. [A court’s] inquiry with respect to one component will
                                           29
therefore often shed a valuable cross-light upon [its] inquiry with respect to the

other.” U.S., ex rel, Cross v. DeRobertis, 911 F.2d 1008, 1013 (7th Cir. 1987).

       In Toliver v. Pollard, 688 F.3d 853, 857 (7th Cir. 2012), the Court held by failing

to call “the only two witnesses that would have corroborated his theory of the

defense” and impeached the testimony of a State’s witness, defense counsel’s

performance was prejudicial to the defendant because it “’would have enhanced

significantly the chances of the jury’s accepting Mr. Toliver’s characterization of the

facts, thereby affording Mr. Toliver a reasonable probability of a different result at

trial.’” See also Montgomery v. Peterson, 846 F.2d 407, 415 (7th Cir. 1988)(Prejudice found

where defense failed to present the testimony of an exculpatory witness who would

have both “contradicted the state’s chief witness” and corroborated the defendant’s

account of the facts and, “[a]s such, it did not merely raise doubts about the

petitioner’s guilt; if believed by the jury, it would have directly exonerated him of the

crime”);(Nealy v. Cabana, 764 F.2d at 1180)(“Given that the missing witness directly

contradicted Ewing’s testimony and supports Nealy’s theory of the case, Nealy has

met his ‘burden of showing that the decision reached would reasonably likely have

been different absent the errors.’” The Court concluded that “[e]ven though defense

counsel’s errors cannot be shown by a preponderance of the evidence to have

determined the outcome of Nealy’s trial, they were of sufficient gravity to undermine

the fairness of the proceeding to suggest that a new trial is necessary to ensure that

Nealy receives a fair trial.”) Id.; and (Doherty v. State, 781 S.W.2d 439, 442 (Tex. App. –
                                             30
Houston [1st Dist.] 1998), citing, Ex parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App.

1983, pet. ref’d)(Ineffective assistance is established with respect to defense counsel

not presenting favorable witnesses at trial “where the result is that any viable defense

available to the accused is not advanced.”).

      It logically follows that in factual scenarios where defense counsel’s deficient

performance results in the failure to secure at trial the testimony of crucial witnesses

for the defense, especially when the evidence is not otherwise overwhelming,

prejudice will nearly invariably be found because such abdication of duty by counsel

implicates the substantive constitutional right to put on a defense. Lockhart v. Fretwell,

506 U.S. 364, 372 (1993)(Deprivation of substantive or procedural right to which

defendant is entitled affects reliability and fairness of the proceeding whish can result

in ineffective assistance of counsel.). The appellant enjoys “a Sixth Amendment right

to present a defense and present his version of the facts.” Coleman v. State, 966 S.W.2d

525, 527-528 (Tex. Crim. App. 1998). In Washington v. Texas, 388 U.S. 14, 19 (1967),

the Supreme Court held:

      The right to offer the testimony of witnesses, and to compel their attendance, if
      necessary, is in plain terms a right to present a defense, the right to present the
      defendant’s version of the facts as well as the prosecution’s to the jury so it may
      decide where the truth lies. Just as an accused has the right to confront the
      prosecution’s witnesses for the purpose of challenging their testimony, he has
      the right to present his own witnesses to establish a defense. This right is a
      fundamental element of due process of law.

      In the case sub judice, defense counsel’s failure to secure critically important

testimony for presentation at trial and failure to impeach the complainant with a
                                           31
multitude of prior inconsistent statements fatally impacted Mr. Briones’ “right to

present a defense and present his version of the facts;” it also thwarted his right to

challenge the testimony of the prosecution’s most crucial witness by being unable to

present highly favorable and material testimony that contradicted the complainant’s

version of events. The sole defensive theory at trial was that the complainant’s story

lacked credibility so the decision not to challenge the credibility of the complainant

cannot be justified as strategy and resulted in the complete failure to advance the one

defensive theory available to Mr. Briones.

      An attorney has a professional duty to present all available testimony in support

of the client’s defense. See State v. Thomas, 768 S.W.2d 335, 336 (Tex. App. –Houston

[14th Dist.] 1989, no pet.). Mr. Floyd basically conceded his ineffective representation

when he admitted that the answer to the seminal question of why L.D. would make

up this story would have been reasonably deduced from the evidence had he

presented the available evidence that: (1) L.D. wanted to live with Mr. and Mrs.

Briones not a month prior to her initial outcry, but they turned her down because she

was a problem child; (2) L.D. had been diagnosed with bipolar disorder; (3) L.D. was

abusing alcohol, marijuana, and pain pills at the time of the outcry; (4) and L.D.

wanted attention from her father that she was not getting. (14 R.R. at 129).

      Courts are not bashful about reversing cases for ineffective assistance due to

the failure to present exculpatory witnesses. In Everage v. State, 893 S.W.2d 219 (Tex.

App. –Houston [1st Dist.] 1995, pet. ref’d), this Court held that it was ineffective
                                             32
assistance to fail to call a potentially exculpatory witness. Surely, instances of deficient

performance of such magnitude and significance result in “evidence (not being)

subject to adversarial testing,” and irrefutably establishes that counsel did not “play

[the] role that is critical to the ability of the adversarial system to produce just results,”

and “necessary to ensure that the trial is fair.” Strickland, 466 U.S. at 685. Here, Mr.

Floyd entirely failed to subject the State’s case to any meaningful adversarial testing so

Mr. Briones suffered a constructive denial of the assistance of counsel altogether and,

because it is so likely, prejudice should be presumed. See Cronic, 466 U.S. at 659;

Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008).

       With regard to the punishment proceeding, there is a reasonable probability

that Mr. Briones sentence would have been less severe had the available mitigation

evidence been presented and the State’s witnesses properly challenged. For practical

purposes, no mitigation case was presented by the defense and Mr. Briones was given

the maximum allowable sentence. Although there is no definitive way to determine

whether the jury would have delivered a lesser sentence had the mitigation evidence

been presented, when counsel deprives a defendant of the opportunity to bring out

any mitigating factors when there are witnesses available to present a mitigation case,

harm may be found. See Shanklin v. State, 190 S.W.3d 154, 165-66 (Tex. App. –

Houston [1st dist.] 2005, pet. dism’d)(“We conclude that appellant has demonstrated

prejudice in this case, even though we cannot say for certain that appellant’s character

witnesses would have favorably influenced the jury’s assessment of punishment.”).
                                             33
Considering that when the mitigating evidence was provided to the jury at his first

trial, Mr. Briones received a ten year probated sentence, it is again so likely, that

prejudice should be presumed.

                                     CONCLUSION

      Based on the totality of the circumstances, “the fundamental fairness of the

proceedings whose result is being challenged” is so undermined by the inept conduct

of trial counsel that it establishes a “breakdown in the adversarial process that our

system counts on to produce just results.” Strickland, supra, at 696. There is certainly a

reasonable probability that had Mr. Briones been represented by effective trial

counsel, he would not have been found guilty or he would not have been assessed the

maximum punishment.




                                           34
                                PRAYER

This court must reverse the conviction and remand for a new trial.

                                        Respectfully submitted,

                                        Alexander Bunin
                                        Chief Public Defender



                                        /s/ Daucie Schindler
                                        Daucie Schindler
                                        State Bar No. 24013495
                                        Public Defender’s Office
                                        Harris County, Texas
                                        Assistant Public Defender
                                        1201 Franklin, 13th Floor
                                        Houston, Texas 77002
                                        Daucie.Schindler@pdo.hctx.net
                                        Tel: 713-274-6717
                                        Fax: 713-368-9278




                                   35
                         CERTIFICATE OF COMPLIANCE

      Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief

complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1.    Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief

contains 7,371 words printed in a proportionally spaced typeface.

2.    This brief is printed in a proportionally spaced, serif typeface using Garamond

14 point font in text and Garamond 13 point font in footnotes produced by

Microsoft Word Software.

3.     Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.




                                       /s/ Daucie Schindler
                                        DAUCIE SCHINDLER




                                           36
                         CERTIFICATE OF SERVICE

      I certify that on the 15th day of September, 2015, a copy of the foregoing

instrument has been electronically served upon the Appellate Division of the Harris

County District Attorney’s Office.




                                               /s/ Daucie Schindler
                                               DAUCIE SCHINDLER




                                          37
