                               /O 7Y/S
                  IN THE COURT OF CRIMINAL          APPEALS
                                                                    3R1GINAL
                           AT AUSTIN/TEXAS




                     NO.

                                                                °0URT OF CRIMINAL APPEALS
                                                                      OCT 19 2015
                     ANTONIO BERMUDEZ/         Petitioner
                                                                   AbeiAcosfa,C/erk
                                      vs.



                    THE,STATE OF TEXAS/ Respondent.




                  PETITION    FOR   DISCRETIONARY REVIEW




ON PETITION FOR   DISCRETIONARY REVIEW FROM THE FIRST DISTRICT
COURT OF APPEALS/    NO.   01-14-00160/     TRIAL COURT CASE NO.        1370940/
184TH DISTRICT COURT/      HARRIS COUNTY/TEXAS.




                                                                 FILED IN
                                                       COURT OF CRIMINAL APPEALS

                                                                OCT 20 2G15

                                                              Abel Acosta, Clerk




                             ANTONIO BERMUDEZ
                             2665 PRISON RD. 1
                             EASTHAMUNtT
                             LOVELADY/ TEXAS 75851

                                    (PRO SE)


                                      . l
                          TABLE OF CONTENTS

                                                       PAGE

 COVER PAGE                                                i
 INDEX OF AUTHORITIES                                ...iii
 STATEMENT REGARDING ORAL ARGUMENTS                   ..1
 STATEMENT OF CASE                                         1
 STATEMENT OF PROCEDURAL HISTORY.....              .....1


 QUESTIONS PRESENTED:



 I. DID THE COURT OF APPEALS ERR IN FINDING THAT THE TRIAL COURT
    DID NOT ABUSE ITS DISCRETION WHEN IT DENIED PETITIONER A
    HEARING IN SUPPORT OF HIS MOTION FOR A NEW TRIAL?...1,2

 II.DID TRIAL COUNSEL'S PERSISTENT AND CHRONIC HEARING IMPEDIMENT
    DENY PETITIONER HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
    UNDER CRONIC?                                       2/5

III DID TRIAL COUNSEL'S PERSISTENT AND CHRONIC HEARING IMPEDIMENT
    DENY PETITIONER HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
   UNDER STRICKLAND?                                       2/10


REASONS   FOR GRANTING REVIEW:



GROUND ONE                                             2

GROUND TWO                                            5

GROUND THREE                                          10



PRAYER                                                10




APPENDIX:


Opinion of the First District Court of Appeals        App.




                                 li
                         INDEX OF AUTHORITIES


U.S.    SUPREME COURT CASES:

                                                          PAGE

1. Bell v. Cone/ 535 U.S. 685 (2002)                             7/8
2. Cronic v. United States/ 466 U.S. 2039 (1984)                 2/5/8/9,10
3. Morgan v. Illinois/ 504 U.S. 719 (1992)                       7
4. Strickland v. Washington* 466 U.S. 668 (1984)..               2,11/12

U.S.    COURTS OF APPEALS CASES


1. Burdine v. Johnson/ 262 F. 3d 336 (5th Cir. 2001)             5/9/10
2. Tippins v. Walker/ 77 F. 3d 683 (2nd Cir. 1998)               9/11


TEXAS COURT OF CRIMINAL APPEALS CASES:


jL.   Ex Parte McFarland/ 163 S.W. 3d 743 (Tex.Crim.App.2005)         5
2.    Gonzalez v. State/ 304 S.W. 3d 883 (Tex.Crim.App. 2010)         2/3
3.    Hobbs v. State, 298 S.W. 3d 193 (Tex.Crim.App. 2009)            2,3
4.    Martinez v. State, 74 S.W. 3d 19 (Tex.Crim.App. 2002)           3
5.    Raby v. State, 970 S.W. 2d 1 (Tex.Crim.App. 1990)               7
6.    Smith v. State, 286 S.W. 3d 333 (Tex.Crim.App. 2009)            3
7.    State v. Herndon, 215 S.W. 3d 901 (Tex.Crim.App. 2007)          3
8.    Wallace v. State, 106 S.W. 3d 103 (Tex.Crim.App. 2003).        .3


TEXAS COURTS OF APPEALS CASES:


Bermudez v State, No. 01-14-00160-CR, (Houston [1st Dist.] 2015)..1
Dent v. State, No. 01-12-01043-CR (Tex.App.-Houston [1st Dist.],
January 30, 2014,no pet.)                                                  8,11


U.S.    CONSTITUTION

VI. amend                                                        .....7




OTHER




Black's Law Dictionary, 9th Ed.,                                       6




                                  iii
                 STATEMENT    REGARDING ORAL      ARGUMENT

 Oral argument is requested, as the questions presented are of a
nature that oral arguments would help fully develop the issues in
volved and greatly assist the Court in deciding the questions.


                          STATEMENT OF     CASE

 On February 6, 2014, a jury found Petitioner guilty of aggravated
assault of a family member with a knife. Petitioner waived punish
ment by jury. The trial judge assessed punishment at 60 years in
the Texas Department of Criminal Justice. Trial Counsel filed a
notice of appeal the same day. (C.R. at 225). Appellate counsel
filed a verified motion for new trial, with supporting affida
vit, on March 7/ 2014 (C.R. at 234). It was presented to the
trial judge and denied without a hearing on March 17/ 2014 (C.R.
at 250). Appeal was then filed with the Court of Appeals for the
First District of Texas. (COA# 01-14-00160-CR). The Court of Ap
peals issued an Opinion on July 28, 2015/ affirming the trial
court's judgment of conviction. (Id.). This Petition for Discre
tionary Review is timely filed.


                 STATEMENT OF       PROCEDURAL    HISTORY


 The Court of Appeals for the First District of Texas affirmed
the trial court's judgment of conviction on July 28, 2015. No
petition for rehearing was filed in the case.



                         QUESTIONS PRESENTED
 I.   DID THE COURT OF APPEALS ERR IN FINDING THAT THE TRIAL
      COURT DID NOT   ABUSE   ITS   DISCRETION WHEN   IT    DENIED PE

      TITIONER A HEARING IN SUPPORT OF HIS MOTION FOR A NEW
      TRIAL?
II.     DID TRIAL COUNSEL'S PERSISTENT AND CHRONIC HEARING
        IMPEDIMENT DENY PETITIONER HIS RIGHT TO EFFECTIVE
        ASSISTANCE OF COUNSEL UNDER CRONIC?


III.    DID TRIAL COUNSEL'S PERSISTENT AND CHRONIC HEARING
         IMPEDIMENT DENY PETITIONER HIS RIGHT TO EFFECTIVE
         ASSISTANCE OF COUNSEL UNDER STRICKLAND?


                       ARGUMENTS      AND   AUTHORITIES



                                GROUND      ONE

       DID THE   COURT OF APPEALS     ERR   IN FINDING THAT THE TRIAL

       COURT DID NOT ABUSE ITS DISCRETION WHEN IT DENIED PE

       TITIONER A   HEARING   IN SUPPORT OF HIS MOTION FOR A     NEW

       TRIAL?




                      REASONS   FOR    GRANTING   REVIEW



 The Court of Appeals decision is contrary to this Court's decisions
in Gonzales v. State, 304 S.W. 3d. 838,842 (Tex.Crim.App. 2010) and
Hobbs v. State, 298 S.W. 3d 193 (Tex. Crim. App. 2009).

 Petitioner's Appellate counsel properly filed and presented a
verified motion for new trial with an additional affidavit stat
ing facts in support. The motion and the affidavit raised matters
that were not determinable from the record and that could provide
Petitioner with relief.
 In deciding the issue of whether or not Petitioner's motion for
new trial asserted reasonable grounds for a new trial, the Court
of Appeals employed a standard of review never countenanced by
this, or any other, court:
  "To determine whether Bermudez asserted reasonable grounds for
  a new trial, we must consider the ultimate question before the
  trial court: Did Bermudez',s attoney's hearing impairment cause
  him to render ineffective assistance of counsel? (Memo.Op., at 6)
 This "ultimate question" resolution standard is not the standard
set by this Court in order to obtain a hearing on a motion for a
new trial.

 In Hobbs v. State, this Court ruled that a trial judge abuses
her discretion if the motion and accompanying affidavits raise
matters which l)are not determinable from the record, or 2)
establish reasonable grounds showing that the defendant could
potentially be entitled to relief. Id., at 298 S.W. 3d 193,199
(Tex.Crim.App. 2009). "...[A] trial judge's discretion extends
only to deciding whether these two requirements are satisfied.
If the trial judge finds that the defendant has met the criteria,
he has no discretion to withhold a hearing. In fact, under such
circumstances the trial judge abuses his discretion in failing to
hold a hearing." Gonzales v. State, 304 S.W. 3d 838,842 (Tex.
Crim.App. 2010) (emphasis added); citing Smith v. State, 286 S.W.
3d 333,339-40 (Tex.Crim.App. 2009). This Court has said that, in
order to be entitled to a hearing, the defendant need not establish
a prima facie case. Wallace v. State, 106 S.W. 3d 103,108 (Tex.
Crim.App. 2003). The motions and affidavits "must merely reflect
that reasonable grounds for holding that such relief "could" be
granted." Id. (citations omitted)(internal quotations added). This
is because "the purpose of the hearing is for a defendant to de
velop the issues raised in the motion for new trial." Martinez
v. State, !••• 74 S.W. 3d 19,21 (Tex.Crim.App. 2002). A defendant
need not establish reversible error as a matter of law before the
trial court may exercise its discretion in granting a motion for
a new trial. See State v. Herndon, 215 S.W. 3d 901,909 (Tex.Crim.
App. 2007).
 In his motion for new trial, Petitioner alleged that there were
times during Petitioner's trial when trial counsel could not hear
"multiple portions of the trial on the merits." (Id., at P.4).
Petitioner stated that those particular portions of trial were not
determinable from the record and that, in order to identify which
portions those were/ trial counsel needed to be subpoenaed at a
hearing on the motion. (Id.). Moreover/ Petitioner filed an af
fidavit which stated that trial counsel had promised to provide
an affidavit in support of Petitioner's claim that trial counsel
had not been able to hear witness testimonies during portions of
the trial. (Id.). This raised sufficient grounds to grant a hear
ing/ since trial counsel had not provided the promised affidavit/
to determine by questioning trial counsel the effect his hearing
impairment had on his ability to render effective assistance of
counsel.

 An even more compelling example of evidence not determinable from
the record comes from the trial judge herself. What the record of
trial reflects is that there were apparently nonverbal CUd# which
the trial court became aware of and which caused her to question
trial counsel concerning his hearing impairment. (See 3 RR 136-137).
While its determinable from the record that the trial judge sudden
ly recognized that trial counsel had a hearing impediment/(which
led to her admonishing counsel)/ it is not determinable how the
impediment had affected the proceedings prior to her recognition
that there was a problem. At that point the state had questioned
numerous witnesses.What came to light was that, not only did trial
counsel have a problem hearing, he was in fact sort of "freestyling"
and assuming answers to compensate for his inability to hear the
answer. Some of the assumptions were actually dia metrically oppo
site of what had been actually said. (See 2 RR 140, Ins. 12-21);
(4 RR 69); (4 RR 73). These particular defects in counsel's hear
ing only became apparent because they occurred during counsel's
dialogue with witnesses. However, it cannot be determined from the
record how many hearing miscues and flat out errors in counsel's
hearing occurred while he was listening to the State examine the
witnesses. These were issues that could have only been developed
through cross-examination of trial counsel at a hearing for new
trial. Clearly Trial Counsel's inability to hear testimony during
critical stages of the trial constituted reasnable grounds—not
determinable from the record—to assert a valid claim of ineffec
tive assistance of counsel under both Cronic and Strickland.
The Court of Appeals erred in finding that the trial court did
not abuse its discretion when it denied Petitioner a hearing on
his motion for new trial. Because the Court of Appeals is con
trary to the decisions of this Court on the same issue, this
Court should grant a petition for discretionary review.
                              GROUND   TWO

       DID TRIAL COUNSEL' S    PERSISTENT AND CHRONIC HEARING

       IMPEDIMENT DENY PETITIONER      HIS   RIGHT TO   EFFECTIVE
       ASSISTANCE OF COUNSEL UNDER CRONIC?




                   REASONS    FOR GRANTING    REVIEW


 Review should be granted because the Court of Appeals opinion is
in conflict with the decision of the United States supreme Court
in Cronic v. United States, 466 U.S. 2039 (1984).
 In referencing Petitioner's motion for new trial, Appellate
counsel raised the fact that Petitioner was relying on the deci
sion in Burdine v. Johnson,    262 F. 3d 336 (5th Cir. 2001)(en
banc). Appellate counsel asserted that Trial Counsel's hearing
impairment in Petitioner's case was analogous to the sleeping
attorney in Burdine. (Appellant's Brief, at P. 4-7). Appellate
counsel asserted that an attorney who is entirely incapable of
hearing critical portions of the trial proceedings is "unconscious'
to the same degree as an attorney who fades in and out of sleep
as the attorney in Burdine.(Id.). Appellate counsel asserted that
during the portions of the trial when trial counsel was unable to
hear witnesses!1! testimonies he was "constructively absent" for
all intents and purposes.
 The Court of Appeals, however, decided that:

  "Bermudez's analogy to Burdine is inapposite. First,         it ignores
  the fact that Bermudez's second-chair attorney has no hearing
  loss, t Memo. Op., at P. 7).

The Court of Appeals also stated that this Court held in Ex Parte
McFarland, 163 S.W. 3d 743 (Tex.Crim.App. 2005) that the rule in
Burdine does not apply when one attorney is sleeping but another
is awake. (Id.). "Even if hearing loss were analogous to uncon
sciousness, the presence of co-counsel requires the rejection of
Bermudez's argument." (Id.).
 However, the Court of Appeals reasoning is based on assumptions
which are not supported by the record of trial and evinces exactly
why a hearing was needed.
 Firstly, even assuming that Petitioner had hired a second-chair,
which there is absolutely no information contained in the record
to establish that he had, there is no information to support the
Court of Appeals assumption that the co-counsel even knew Trial
Counsel was experiencing the hearing deficiencies to the degree
that became apparent late in the trial process.
 Secondly, the record demonstrate's that co-counsel played no role
in assisting with the cross-examination of any of the witnesses or
in making any objections during the trial process.
 Most importantly, the record demonstrates that co-counsel was not
even positioned to assist Trial Counsel during the questioning of
any of the State's witnesses by either the State or Trial Counsel
himself until the Court suggested near the very end of trial that
co-counsel sit next to Trial Counsel to assist him with his hear
ing impairment. (See 4 RR 76-77)(trial judge repositioning co-
counsel to sit next to trial counsel). Perhaps the most poignant
example of the severity of trial counsel's inability to hear oc-
cured during this exchange between the Court,Trial Counsel, and
the State:



THE COURT: "You may not have any problems with the last witness,
           if she is the last witness. It's just the child was
           unusually soft. But I want to make sure you hear every
           thing. If you don't, stop and let me know, and I will
           assist you with that."

COURT COORDINATOR:   "I don't think he hears you right now judge."
(4 RR 77).

In other words, when the trial court was offering Trial Counsel
assistance with his hearing impairment. Trial Counsel couldn't even
hear   that.

 In Black's Law Dictionary/ the word "unconsciousness" is defined
as "unawareness." (Id./ 9th Ed.). Nothing can be more clearer than
the fact that trial counsel experienced areas within the trial
when he was entirely unaware of what was being said: Even to the
degree of not hearing the judge speaking to him directly.

                             -6-
 In Bell v. Cone, 535 U.S. 685 (2002), the Supreme Court identi
fied three situations implicating the right to counsel that in
volved circumstances "so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjusti
fied." Id., at 695. One of those situations, which is the one that
applies most to Petitioner's case, is where counsel is called upon
to render assistance under circumstances where competent counsel
very likely could not. Id., at 659-662. The Court said that under
such circumstances a defendant need not show that the proceedings
were affected.   (Id.).
 Another vivid example of the danger Trial Counsel's hearing im
pairment posed to Petitioner's constitutional right to fundamental
fairness and effective assistance of counsel occurred during the
jury selection process.
 The Sixth Amendment guarantees the "Assistance of Counsel" and
a trial before "au* impartial jury." U.S. Const.amend. VI. Part of
this constitutional guarantee is an adequate voir dire to identify
unqualified jurors. Morgan v. Illinois, 504 U.S. 719 (1992); Raby
v. State, 970 S.W. 2d 1,10 (Tex.Crim.App.1998). During voir dire,
the following colloquy between Trial Counsel and members of the
venire panel took place:
  "[W]e get the presumption of innocence, right? Here in America,
  when you're charged, that means if you had to take a vote right
  now on whether or not Mr. Bermudez was guilty or not before you
  hear any evidence, what would your vote be?"

VENIREPERSONS:   Innocent
VENIREPERSONS: Guilty
VENIREPERSONS: Guilty
VENIREPERSONS: Not guilty.

TRIAL COUNSEL: Excellent. Very well. (2 RR 140, Lns. 12-23).

 Apparently Trial Counsel did not hear the two jurors who said
they would vote Petitioner guilty despite having heard no evidence
presented. Most troubling is the fact that it cannot be determined
from the record whether either of the two who gave the answer en
ded up on the petit jxy,since neither had been identified by their
numbers when they gave the answer. The possibility exists that
those two jurors, who were clearly unqualified absent evidence
of rehabilitation, ended up on the petit jury.
     H-    (U                  H-    o       o        <        rt                c                                          Mi                                            H«                     .—»
                                                                     1     *                                                      O"     O                                         cr      0>                     O    •o           Ul        <    co    rt
      3   *0        M       3        o       o        ID       3*    ID    0)    3      o                              •^   a>    M      O       SB                       3        o>      3      •^              o    n      H     to        3"   ID    ar      SB
     «Q   TJ        3      "O       3        c        •1       ID   •o     CO    rt     3     n       cr       s       3*   o     ID     C       O         >0»      3              co      a>     ID              c    ID     3*    Ol        ID   M     H-      CD
     ••    ID               o        H»          M    ID             O           H-     O     ID      ID   »™^              rt           3                                         ID      M         X                 co
                                                                                                                       ID         3              €       3E ft    H       •0                                      1           ID              il         co      3
           0>       0)         1    id           ft        O        to    'O     *->    ID    1—      3                           •      CO      ID               ar      ID       a                 •            rt                               r—I
                                                                                                           t-3                                           ID rt                            *<                           ID           a         ID                 O
           H*                  rt   «.                3    0>       H>     1                          O    k.^                           ID                               ft               CO                                       •
                                                                                              0>                   o        rt                   <       3 O      H-                              >                    3      O                    c     <       ID
          a         O          0)   ID       «.       O    3        rt     ID    rt     0>   *<       3*   3"      o        3"    M      M       ID      O n      co      H-      o        H-    •o               H>   ft           CO                   a>      ^
                                                                                                                                                                                                                              o               O    0)
                    a>         3    3        ID            O        H-    *o     3*    iO     H-       1   ID      c        0>    3              1       •  3             It      3        co    T>               3    ID     c     •         O    CO    CO
          o         CO         O    O                 Ml   ID       O      0*    ID     01                                  rt    CO         s   ^                        H-                         •
                                             •o                                               3       O            1                                        ID    O                                                    a      •1           3                     C
          O         (D         ID   ID        o       c        «.   3      n            H-   i£       O    ft      rt            rt     •o                o*< o»          O        ft      o          1           0>          ft    o»    ^              o       3"
          c                                  CO       1                    H«    <      3             3    «                3-    ID     n       rt      •o    CO         3        3*      Mi        X            3    ft           00     ID      o     M       H'
          «.        <       cr      TJ       H-       rt       €    3"     3     H-    *      H'      Ml   H»               H'                   3"       «
                                                                                                                   o              0>     o                  •O ID         ID       ID            o                     3*     o     Ul        ft   0)    ID      M
          rt        H-     »<       1        rt       3*   0)       ,H-   iQ     rt                                Ml       co           Oi              %                                 a>    c                            Mi    ^
                                                                                              3       ID   a*                     a              ID          1            «.                                   C       ID                     ID   k->   0>          ID
                    rt              O        H-       ID   Ca       a            3     rt     Mi           M                     %                                            •                  co
                                                                                                      1                                  o                  O TJ                  0*       3                   3                    0*        3    t->   n
          H-        =r         rt   O        o        1                    rt    ID    3"     o       ID            >       3"           rt      rt      0> o> n          co      It             rt           •o       H-      >    VO        ft   ID    M       H
          a                    3"   ID       3                 H-          0     CO    ID     1       3    o       •o       ID    H-     H-      n       ft O ID                  rt       M     O             c       a      •o    en             Q.    •<      n
          A         to         (D   a        ID       a     3       (0           CO           3       O    o       •o       0>   rt      <       H-         rt    co      o        0       >     3             O"      ID     TJ     1    O                      H'
          3         H-              c        Qi       ID    O       ID     rt          1      0>      ID   c        ID      1            ID      a*      VO H-    ID      0*       n       o                  M        3      ID    0>              c    rt
                                                                                                                                                                                                                                          O                      o>
          rt        3          rt   i                 3             0>     ID          ID    rt                     0>      H-           H"      »-•                      CO                     r—i          H-       ft     0)
                                                           •o                    <                         n                     to                         <     3                3                                                VO    c        •o    3"      M
          H-        H-         H-   (D       o        O     ID      rt     CO    3"    O     H«            rt      H<       3    3"                      •  ID   rt       ID       ID     o      M            CO       H-     t-'
                                                                                                      X)                                *<                                                                                          o>    3         O    ID
          M>        M          3         3   o        3*   «.       H-     rt    o     0     O        1            CO       <a   o        3      ti          |-> (0               •<       M     CO           3"       o      CO          co        3            o
          H>        0>         id             I            Qi        3     H"                                                                                             O           •
                                                                                                                                                                                           01    It                                 *—«
                                                                                 3     1     3        O    3                     <               ID          •<                                               ID       0>                 ID             CO      o
          ID        I               o        O        O    cr       iQ     i-h         Qi             O    a*      Mi       H-   CO      CO      O               3        l->     CO      H'                  a        t-'    3     ro    M        It    H-      c
          a                rt       H*       o        O    M              ••<    rt          rt       ID   a       c         3           ID      O            CO ID       0>               3     a                            ID    O              O     It      3
                    •"••   3"       0>       c        3    ID       rt           3"    rt                                                ID                               H>      3"      %      H«
                                                                                             O        a    ID      1        •o   ^               1            O 0>                                            o        (0     X     O     <              c       CO
          rt    3          (D       •">•     3        Hi   *                                                       li                                                                            CO
                                                                    O      a     ID    ID             c                     ID   1       A*      Q.           C «1        3       ID                          0)       ID     ft    ro    ID       n     0)      ID
          3"    X>         *<       3        CD       ID                   H-          M     rt       rt   H-      ar       a    H-      H-                  iQ »-•       ID      0)      it     It           ca       It           *^^                  It
                                                                                                                                                                                                                                          M.       ID            M
          ID        M               id       ID       1    "3       0>     Qi          M     XX                    ID       H-    fl>    3       a            3-k:        a                      •                                  •                    H-
                                                                                 O                    ID   a                                                                      n       3"                  ID              3           •<       3
                    H-     <        a        M        ID   C        (0                                %                          H«     (Q                                        H-             %—*          *
                                                                                 O     (0    ID            ID      n        3                    o           rt                           ID                           O      0>                   Qi    o       3
          M»    O          id                •        3    n        CO    CI                                                                                      H-      it
                                                                                 c                         3                ID                   ID                                3                                   Mi     a           •-•      ID    3       0>
          (-•   01         i         or               O    rt       H-    S-     n     0)    M        0>   rt      o        3    O      a*       CO          o> a         3*      i£)     O      u            D               ID          H'       1             •<
oo        0>    rt         (D       *<       •-3      ID   3"       CO     ID    rt          ID       3    H-      M        rt   o      a        3           CO ID        Oi              O      Oi           ID       Ml                 J*             CO
                H-                           3"       CO            ft                                                                               w                    ft      H-
          <                                                ID                          a     0>       a    O       o>            c      co                   CO 3                         C      3'           3        0)     Mi          ID       0>    •o      3
                o          0>       rt       ID            i              O      H-    H-    a             0>      H-       3*   3       H-      rt          H- ft        t*                     •                ft          H'          H-
                                                                                                                                                                                  3       n                            o                           CO     0      o
          K-    3          l-«      3"                H,   3        H     O      a     Ml             o    H*      3        0)   CO     co                   CO H-                T3      rt                           rt     3           •<       co     ?r         ft
          3     CO         »-•      id       3        O    O        1     c      ID    Mi    o>       0            ID       a    ID     rt       1           ft   o                ID        zac              <        CO     a                    H-    ID
                            ID               O        M    «.       H-    1      3     ID    rt        i           a             M      a*       ID          a>   a*              a       Mi  o               •               H-                   CO
                                                                                                           3                                                                                                                              o              3       3"
          rt    c          iQ                         M    ID       0>    rt     rt          rt                    ^                             Ml                               H'             «        .
                                    a        a.                                        n              o    O                cr          3                    3    H-                      O                            fl>     3          O        rt            0>
          3-    3                            H«            ^        M            H-
                            ID      o                 O                                ID     O       o    Q.               ID   ID     O        M           o                    3       c                   CO       to     tQ          c        0)    O       <
          (D    a           Qi      c        Hi       c                    CO    Ml    3      n       c    H-      H-       o    CO     ID       ID          ID   Mi              ID      3      N>           It               CO         »-•      3     Mi      ID
                <D         t->      i        H-       H-   rt       o      C     H-    rt     3       3    Mi      3        o    co              O                0>              3       a      o            0)       h"                 Q.       O
          O     «.         •<       rt       O         3   3*       O     (Q     ID           ID      co   H-               3    ID      K       ft          <    O               rt             t->          ft       3      ft                   ID    H>      O"
          O                                  0*       iQ   ID       c     03     a     co    *<       ID   O       H-       ID   3      H-                   3T It                •       3      *>           ID              3"          3              3       ID
                                             rt                                              •                                                                                                   ^            ^
          C     o          o        O                               3      ID          it             M    0>      rt            rt     rt       O           ID CO                        O                            ft     0)          O        C             ID
          1     n          1        »-h      H-       rt   M.       co     CO    0)    0          s        rt      CO       0)   H-     3"       3           3  •                 •3             3                     3*     ft          rt       3     n       3
          rt    o          a                 O        3"   ID       ID    rt     a     1              •o   t—               3    0>              ID                               3"      CO     O            Z                           r—<            ri
                                                                                                                                                                                                                       ID                          a
                3          ID        >       3        ID   O        M                        ^-x      «.           0*            H-     3"                                                It                  o                           •
                                                                                       •<                  o                                                 3  00                ID                                          •0                   ID    O       H-
          O     H-         «.       •o       ca            0        •     rt     rt    •     M                              H-   1—     H-       H>                                       «.                  •                           «_.
                                                                                                      O    3       3                                         ID ID                               •o                    a      ID                   »•»   3       3
          Mi    O          id       •o                O    1              3*     3*          a        <    co      a>       CO   •<     CO       3           O «.                 O       H-      ID                   ID     ft               3         H'      O
                ^                            H-                                              #                                                   co                                              It
                           a        ID                3    a        CO    0>     ID    H              H-           h-       CO                               ID 3                 0       o                   o        o      H»                   o     o       0
          0)    el                  0i       3        ID                  rt           rt    «_»      a    rt                    H-     3*       rt                                              •            I-1      »•*•   It
                                                                    •<                                             o        c                                CO C                 c       X                                               03       H-            3
          x>    s'         a        M                      «                     t->                  ID   O       tQ       ID   (Q     ID       0>          co a                 n       M      +^               1           H-                             5
                                                                                                                                                                                                                       co                 ID       1             XJ
          T>    ID         k;                rt       <    ID       rt    O      a>    <              a            *<       •     3     0)       3           0> ID                rt      a>                  v->      H-     O           M        O     <       ID
          (D                        «        3*       3"   M>       3"    O      co    0>                  rt                    O      *\       O           w.   N                       3      C            to       o      3           M        C     3"      rt
          a*    Hi         rt       ID       ID       ID   1—       0>     I     rt    co             CO   •sr     rt            H      H»       ID          •<       -           o       Qj     3             1       3      ID                   3     ID      ID
          h->   a>         3"       n                 tl   ID       rt    O                            c   ID      o             H>      3                   •—> CO               Mi             a            o               n           <        CO    n       3
          en    Qi         ID       ID           s    ID   O                                                                            uQ                   *•                                               M                           •
                                                                          o      c     3              •o                          3              O                                        T3     ID                    a                           ft    ID          ft
                <t>                          cr            rt       rt    c      t—    0              •o   Co      O             «Q              Ml          •_.M                  >      1      »i           o   *<          CO                   0)
          «.    M.         O        o        n>       rt   CO       H-    3      rt    rt             o    rt      ID                   "O                        ID              •o      ID                  *>.                         n        3     O       V
          ID    0>         o        Hi       3        3"            3     co     3                    «.   a>      3             rt      1       rt               Oi              •o      t_i.   0>           U)       rt     o           0        O     O       ID
          0)    t->        C                 O        ID   li       ID    ID     ID                   rt   3       rt            3"      O       1                a                ID     C      3             1       3"     0)          3        ID    c       H
          co               1        3        3"            ar             H-     a                         a       • •           ID       1      H-                                o>     Ql                  o         ID    co          ID       CO    3
          O                rt       o         1            ID                    CO                        a»                                    0>                               t->     H-                  ?0                          ^
                                                                                                       a                                                                                                                      ID                          1      CO
          3                •                               1                                                                                                                                                  ^
                                                                                                      •<   n                                     t-'                              co      o                                                                      ID
           1                                               ID                                              a                                                                              ID                                                                     ^
"The errors and lost opportunities may not be visible in the record,
and the reviewing court applying the traditional Strickland analy
sis may be forced to engage in "unguided speculation."" Tippins
v. Walker/ 77 F.3d 683/686 (2nd Cir. 1996>. The Court in Tippins
further recognized    that "[ujnder these circumstances/ where the
adversary nature of the proceeding was subjected to repeated sus
pensions/ there is little difference between saying that preju
dice will be presumed and saying that prejudice has been demons
trated." Id.,   at 687.
 The Court of Appelas points to the trial judge's supposed inter
vention and monitoring of Trial Counsel's hearing issues. This
argument was also addressed by the Tippins decision.:
  "The trial judge was so alarmed by [counsels] sleeping during
 damaging testimony by [the witnesses] that he interupted pro
 ceedings to reprimand him in the hall. The prosecutor recalls
 that there were two such reprimands. It may be that such an
  awakening would have been curative if the sleeping were an
  isolated event. But we cannot count on a trial judge to serve
  as the lawyer'^ alarm clock whenever matters arise that touch
  the client's interest. A judge is not privy to the tactics or
  strategy of the defense, however evident they may appear to be.
  Indeed, it would be an inversion of the attorney-client relation
  ship to require the defendant to alert the lawyer to imprtant
  events in the proceedings. In these circumstances the steps ta
  ken by the trial judge evidenced the dangerous character of the
  problem without curing it." Id., at 690.
 The Second Circuit's reasoning aligns with that in the Fifth
Circuit's decision in Burdine. In Burdine, the Court held that:
  "The unconscious attorney is in fact no different from an attor
  ney that is physically absent from trial since both are equally
  unable to exercise judgment on behalf of their clients. Such
  absences of counsel at a critical stage of a proceeding makes
  the adversary process unreliable, and thus a presumption of
  prejudice is warranted pursuant to Cronic."    Id., at 262 F.3d
  349.

 The Court in Burdine also noted that:
  "Although we may not specifically know what evidence was being
  presented while counsel was unconscious, we know that it was
  being presented by the state against Burdine." Id., at 348 fn.7
 Similarly, while it is undeterminable from the record exactly
which portions of the trial testimony trial counsel was unable to
hear/ we know for a fact that there were portions that he could
not hear/ as well as portions that he was hearing falsely. More
importantly',) the only reason Trial Counsel's hearing impairment
 even came to light was because it became evident during his cross-
examination of the witnesses. Inherently, there was no way to know
Trial Counsel was experiencing the severe hearing loss while he
sat quietly, supposedly listening to the state's examination of
its winesses.

 Appellate counsel's reliance on Burdine is on point:
  "We conclude that the Sixth Amendment principle animating
  Cronic's presumption of prejudice is the fundamental idea
  that a      defendant must have actual assistance of counsel at
  every critical stage of a criminal proceeding for the court's
  reliance on the fairness of that proceeding to be justified.
  The Court in Cronic was not concerned with the cause of coun
  sel's absence, but rather the effect of such absence on the
  fairness of the criminal proceeding." Id., at 345.

 Trial Counsel's hearing impairment was pervasive and affected

the entire trial proceedings from the voir dire,through the
State's presentation of its case-in-chief, and beyond. It even
affected the Court's decision to call the attorneys forward for
bench conferences. The record shows that the Court abruptly aban
doned the use of bench-conferences after realizing the effect it
was having on the trial proceedings.
  "When we have no basis for assuming that counsel exercised
  judgment on behalf of his client during critical stages of
  trial, we have insufficient basis for trusting the fairness
  of that trial and consequently must presume prejudice. Id.,
  at   349.


 The Court of Appeals' decision that the severity of trial coun
sel's hearing impairment during critical stages of the proceedings
did not constructively deny Petitioner effective assistance of
counsel is in conflict with the Supreme Court's decision in
Cronic. This Court should grant discretionary review.


                               GROUND THREE
         DID TRIAL COUNSEL'S PERSISTENT AND CHRONIC HEARING
         IMPEDIMENT    DENY PETITIONER   HIS   RIGHT TO   EFFECTIVE

         ASSISTANCE OF COUNSEL UNDER      STRICKLAND?




                                  10
                                                                                                                       H«   ft                                                     3   o        •3      It    co    it      r—    0»        rt      it      ID        00            Mi       3*      ft       33          D
01           rt       X*         3"        •o     3        o        H"         rt       H-              ft
                                                                                                                                                                                                                                  rt        ID      s'      rt        *«•*          H-       H»      ID       O           ID          o
l-l                   3          H'         rt    0)       rt       3          3*       3               ar    S        3    3"    3                           C                        Hi       O       O     •*•   rt      3
             o                                                                                                                                                                                                                                                  m     •                      •Q                           3
r-i                                                                                     It                                                     D O H- H- 3    3                                               cr    H-      ft              O       Oi                              O                Qi       c                       3
                      o          CO        ID     Qi       H-                  0>                       0*    3"            ID    O
                                                                                                                                                                                        ft   O     ft   r-<         01      ID    tJ        O       ft      Co                      H-        ar              CO          It          O
^            rt       €                    CO     ID       It       ft         It       rt              rt    ID       it         rt           C » 3 B « ifl
                                                                                                                                                                                                   3"   ID          M       rt    •        i£                         M             ID       r-1     Hi       It                      ID
             3*       Hi         X*        ID              H>       3*                  o                     3        3*   •o    ID           t 3 CO   1-3 . C                         3" • O
                                                                                                                                                                                                                                                                                                                                            •
                                                                                                                                                                           H-           ID         ID                       0i    U3        3       ft      o         3             3        H'   O           o           <
ID           ID        ID        3         3      rt       O        ID         r—       a               it             ID   •1    O            a 3       rt n   ar                           3
                                                                                                                                                                                                                                                                                    It                                    •
                                                                                                                                               H« O      H- rt" ID         Qi                ID        it*          o       O     *—»      H-       3"      0i                               iQ - rt          3                        0)
CO                     Q>        o         rt     o        0>                  3        c                ar   •<            O     <
                                                                                                                                               3 ft      3 ID " -          ID          •o          CO   o           o       ft    t        N        ID      CO        O                       3*                                      i£)
•o           Qj       xO         €         ID              M        O                   o                ID    o       O    O     ID
                                                                                                                                                                                                                                                                                             It               »—n         CO
                                 i-*              <                 <                                   »<    c                   1            ID        O CO              a            rt   i t   i t  rt          c       H-             ID               ID        O             ft               *o                               Qi
ID           ID        ID                  Q<                                  0)       ID                             C    ID
                                                                                                                                  %                                                          O     01               3       O     S                     3             3             O        ID      C        M           It          H»
O            ib                   ID              o         CO      ID         3        Qi                             It   ID                      3    ft ID cr                       o
                                                                                                                                               <    0» -»      3 C         co           O         (Q     ft         CO      3     3"       K        rt      3         H-                     Qi       cr      CO          01          3
             r^       a<          Qi        O"    rt        ft      rt         a                        •o    3"       o    a
                                                                                                                            H-                 •    Xr         ft rt                    ID   CO    ID    3*         ID      co    r—       3*       ID      H-        3             CO               M        ft          It
0>           ID       3          vQ        •<     X*        0»      0)                  0)              rt    0)       O          CO                                       "O
                                                                                                                                                                                                                                                            rt        (O                     ft      H'       •           ID          rt
                                                           vQ       M                                         <        3     3    It                ID Hi            r—    ID           ID   C     CO    ID         r->           r->      ID       O                               Oi
M            ID       Qi          ID                                           0        3               ID                                                                                                                                                                                                                •*
                                                                                                                            tQ                 Ci      O 0> ID             o            a    o                          «   <     ID       3        O       rt                      It       3"      o                                ID
|->                                         0*    H>        ID      M          Mi       Qi              CO    ID       ID         1
             ft                             3     3                                                                    •          H-           O    < M 3 a                c            r—   3"    O    O           CO      H«                      rt      o         ft            H"       ID      0)       o                       H*
•<                    ID         o                                                                      c
                                                                                                                            0,                                             »-•                                              ft    rt        ft      a       rt        O             co               rt       H»          Z           *<
             3*       X          Hi                        o        l_J.       H-       It              3     0)                  o            3"   3"    a                             3        "r> O
                                                                                                                                                                           0)          iQ    01         C           H'      3"    3r       3"               ID                      Mi       Ml      H«       CO          o           H*
    <        Oi       •o                    a>    0>       M»:      c          ft       rt              ID                  3     9f           3    ID O"   01
                                                                                                                                                                                                                                                                      It                     Oi               ft          •
    3*       rt                  ft         rt                      rt         CO       H-                    ft            a     r~"          CO   3 ID O CO              ft                      rt    rt         3             01       ID       CO      Qi                     •<                O
                      ID                                                                                                                                                                                                                                                                                      •
                      rt                    rt                                          0)              3"    1                   Ol           O       rt O CO             H-           «    O     3"   r  t        it-     H     rt                3*                3"                     o       3                                %
    ID                           3"               *o       0*       •<         ID
                                                                                                                                                                                                                                  ^                         ft                      It       rt                           o
                                                                                                                                               3    O ft 3 C               0            O    o     ID               ID      rt             M        o                 ID                             *•*      •"-•
    3        3"       H-         ID         o      a*                          H*       H"              H-    H-            o     3                                                                                                                                                                                                             •?°
                                                                                                                                                                                                                                                                                                     %                    •"»
                                            rt    rt       rt                  Mi                       CO    0)                  a            •» O      ID CO 3           3            c    3           O          rt      H-             ID       c       3"                      3*                                                o
             ID       ID                                            CO                                                      o
                                                                                                                                      m    .                               •            r—   o     it    Ml         0>      0>     Oi      0i       CO      O         O             ID       rt               t<              1       3
    3*                3          I—'        3     rt       rt       ID                  O                     M             3                   N) C     1 0*0
                                                                                                                                  co           C\ 3     H- ft                      3    a    r-»   rt               O       M      rt      Qi               CO        O                      3*      It       01          H*
    ID       a        o          0)         ID    H'       H«        r->       c        o               O                   a
                                                                                                                                                                                             C     M-    >          ft            (Q                ft      ID        3             Ml       0»      3"       3           N>           ft
                                 c         •<     o        0)        ID        3        c               r-    0*            c                  K> CO O O H-
                                                                                                                                                                                                                                                                                                                                                ?8
                      ID                                                                                                                                                                                                                                                            H-       ft               •            1           3"
                                                           H>>       n                  3               H»    ft            o     Mi              It I C O                 H            rt   CO    0i   •o          h"      o      C       01       ar                O                              ID                                         ,2
    CO       3-                                   c                            a
                                            c     l—>      •         It                                                     rt    O            >q H«    CO 3               H-           ID   H-    H*   •o          O       o      ID      It       0i      H-        »-•           rt                                    o            ID       CO
             ID       cr         O"                                            ID       co              ID    It
                                                                                                                                                                                             o           ID         3       c     3        It       it      3         c             CO       it      O        CO          H*
    CT       a*       ID         c          3"    0>                 H'        rt       ID              3     o                   o            •         Hi                XJ          .Q                                                                                                                                                       i-ri
                      o                           rt                                                    ft    rt                  c               H-     O     Itr*        n            C     3    €     Oi         co      3     Qi        O                         CO            ft       3"      O        o           o            Qi
    ID       ft                  rt         o                        o         3        M                                    a                                                                                                                                                                                                                  V
                                                                                                                                                                                                                                                    it                                                        ^           1&.
    t*«               fti                                  i-3                 H-               m                           *<    CO           CO CD     n     O 3         *-'          H-         3*    !-•                co    O         rt              O         H-                     ID      C                                 ID       o
                                                                     3                                        3
                                                                                                                                                                                                                                  *                 3*      ID        o                              rt                   CO           O
                      c           c         3      o       3"                  3        (0              (O    ID                               a                           3             rt   H-   ID    CO         K       ID              3                                      •o                                                           73
    3        3                                                                                                                                                                                                                                                                                       rt       N>                       H'
                                                                                                                            o     H-              C      <     ID O        CO            ID   3    3                H'      H-              ID      ID      3         3        '    rt       O                             1
                      (0          3         a>     0»      ID       •o         ID                       c     •<                                                                                                                                                                                                                                d_
                                                                                                                                  co                                                                          ft    ft            3        *<               ft                      O        O                O           o            CO
                      ID          0i       »<      CO                rt        CO        rt              H-                 o                  0i 3      O     X C                                                                                                                                                                              to
                                                                                                                                                                                                                                                    ft      ^         It                     C       O        r->         to           H-
                                  cr                                 o                   ID              H-   c             c                  It O      1     (D rt       <           it       rt      It    o     3"      o      Oi                                               3
    a        C                                     ID      0)                                                                                                                                                                                                                                                             ^
                                                                               rt                        It   ar                                  O    CO 1                •           3*       ID      ar                  rt    •<        3"      rt                 3*          (Q        rt      Ml       *k                       O
                       3"         >-•       <              Qi        O                  t>                                  3     O                                                                                                                                                                                                             g
                                                                                                                                                                                                                                                                ft                           ft               ^
                                                                                                                            CO                 CO 3    ID O          CO                 ID      Ml      ID    3     C                       0>      H-                 0)                                                              3
    rt       O         H-         ID        ID     c       <         ID        3"       H"              *<    o                   3                                                                                                                                                                                                             5=
                                                                                                                                               •U CO   •  r—         ft    s                    ID            0i    H-      a     3"        Qi      0i      ar         It           O                 >                       N>
    ID       3         CO                   »-<    3"      ID        CO        ID       •<                                  ID                                                                                                                                                                                                                  3
                                                                                                                            r->   n            von        CO         «     0)           O       rj      CO    *•    rt      c     0)                H>      ID                      Ml       H-      "O        3              o        O*       W
    o                             ft        f-»    ID      rt        CO                                  O"   3"
                                                                     *                                                                         •  H>   00 ID         H-    M            O       ID      It    ID    3       rt    <         rt                            ft                 3       "O        O              M       *<
    ft                 3"         o                3       CO                  O        H-   ID               ID                  ID                                                                                                                                                                                                            ,25
                                                                                        CO J £                01            C     •-•             O    c             o     X            C       3       0>          ID      H-    ID        1       O       o          3*           CO                ID      •o              •&>               O
    H»        Oi       (D                   o*             0>                  0
                                                                                                                                  H>              C    rtu.          x*    ID           rt      O       it    it    CO       3              O       o       O          ID           rt       O        fli      ID                      It
*<            3        0*         ca        ID     ft      rt        €         3             o                r|            3*
                                                                                                                                                  CO      C          r-    rt           rt              ID    3"    CO      (Q        cr    C       c       c                       r»       ID       M       rt              s;       3"
              CO       rt         c                3*       r-»      ar        Mi         3  rt               co             H-   01                                                            ID
                                                                                                                                                       rt Qi         01    ^                                  01    ID                ID    cr      rt      rt         O             H-.     3       CO           •           c        ID       I??
    0*        <        H*         Hi        o      ID       0)       H-        H'       ID   ID                              o    cr                                                                                                                                                                                                            P
                                                                                                                             ar   H-                                                    O        ft     <     rt    CO      •o        ID    H*      It          ft     H«            O        ft              "*•*
    Qi        ID       3          Hi        o                  M     o         a        X                      <                                    0i 3*tQ          3                                                                                                                                                                          ^
                                                                                                                                  t->                                          ^J       Hi      O       Oi                   O        3     ID                         rt           W                •"••     *"^             CO       O        W
    a         rt      iQ          H'         3     Qi                ar        ID       o    0)                ID                                   ft 0i 3          Qi
                                                                                                                                                                                                        co          O       H"                      «        O         O             H1          3    3           3           •tk      O        n
                                  o         T3     ID      •o                  3        ID   3                 3             c    H-                      ft ID                ^4                             a
              CO
                                                                                        t->                    H-                     ft            O           3    O                  >        ID           ID    O       3         rt    3"      0t      -BE        c             Oi       Ml                  ID          Cft      c        s
    ID                 H*         H*         ID    Ml       rt       H-        O            *<                               3
                                                                                                                                                    rt   h-     rt   0»    •q          TJ        <      ID    rt    O       It        rt    ID      CO                    3          3       O        TJ          3           >J       rt
    CO                 CO         ID        it     ID       o        co        ID       *->                    H.            a    •<
                                                                                                                                                                               •                                                                                          CO                 c        ID          •           K)       ft
    CO                            3         ID     3           o                         ID              ID    ID            ID                     H-   CO    •»    CO                •o        ID     X     ID    c       ca        C     0i              >                        Qi
              3                                                                                                                                                                                                                                                           ft         •       3        It                      00
                                  rt                                           rt        3               <    •u             n        H-            ft          O    ID                 ID       rt     Oi    rt    rt                ID    rt      iQ      *o                                                 O
    ID        o        co                   3      Qi          ID   *o                                                                                                                                                                                                                                                    %
                                                                                                                                                                               CO                                   rt      H-              r"       ID     TJ            0>             3   Qi       H«      •o                       O
    Qi        rt       ID            »-•     ft    0*          CO   ID         3"        ft              H-    ID            3        3             H-   01     0i   CO                 0)      *<      3     3
                                                                                                                                                                                                                                                                                                      ft          •                    Ml
                       <         »<                3                rt                      •                  rt            H-                     O    3      r-             a        r->             H'     H-   ID      3         a     3        3       ID           3
                                                               CO              0>                        a
                                                                                                                                                                                                                                                                                                      »-•     %               0>
                                                                                                                                      ft            0»          O    H«                 CO      n       3     3     a                 c    i£>       ID         0i        o         *•"'•     3
     o*          3"       ID                 H*    ft                3"            ft                    ID    CO            3
                                                                                                                                                                                                        •*•         «»      It        rt    #        rt         M         ID         3        O       O                       It      >
    •<                    rt         c       3                 O    0>                      <            3     o             ID       3"            r-    0i    C    CO        0)               1             0>
                 ID
                                                                                                                             CO                           CO   r-              rt       ft       »"»•    3     It           3"        H-        3    Oi         co        CO         ID               3           3                   *o
                 a>       ID         rt            H-          0*   *o         O         ID              n     3                      ID
                          r-i                It                3    CO                   rt                    CO                                   ft CO 0> It                         o        It     iQ     H-   H-      ID     3                r-*                              3        ID      ID          O           •Ck     TJ
        ft                           H-               CO                       a*                        ID
                                                                                                                                                    H« C rt 3*                 o\                H«            o    It            uQ       *—*      M           o         H'         O        rt      1           ft                   ID
    3T                *<             M       ID                3                3       »<                                   O        O
                                                                                                                                                                                                                                                                                     •                    m               ^•N
                                             rt                          tt-                                      CO                                3 3 H« 0»                  co       ID      o       <      3            ft              2       »<          O         3                   rt                                       01
    ID        3                      H»               O"       o                                         3*                  O        C
                                                                                                                                      rt                                                3       0)      H-          H-      rt        rt    ID                  3                    O        O       co          Qi          •3       M
             (Q           H-         N       3        ID       ft        S-     O"          <            0*       rt         3                      ID *0 O It                 o>
                                                                                                                  Oi         Ml       O             CO rt 3                    #       (Q        M      ft     rt   CO      H»        3"    3       Oi          O         TJ        •o        rt                  ID          ID
    O                     3          ID      a        H-                 ID     ID          ID           CO
                                                                                                                                                                                                                            tt                                  r->       ID         •                o           CO          X        H'
                                                   3           cr                           M                     it         H-       O             •     H-         O                  fli             3      ID                     ID    O       cr
    O            0)                                                                                                                                                                                                                         •                             it       - ^                0>          H-          •
                                                                                                                                                                                                                                                                                                                                       3
    c                                                                    3                  M                     ID         a        3                 • o    o> o                    «Q        co     ID     M    H«      r->                     r-»         C                             CO
                 ft       0)         3"      o    (Q           ID                  3"                    a
                          !-«•                                                           *                                                                3    3 C                      ID       rt     CO     ID    3                O     o       ID          a         H»                  C       CO      lO           >
    •1                               •*•     Hi                          o         0>                    ID                  ID       ID
                                                                                                                                                                                                 0)     CO     <    •o      <         O    •o                   ID        ft         0i       Hi      ID          3       •D
        rt                rt         CO               rt                 CO        a                3    ID                  3                                 a  3
                                                                                                                                                                                           H-   iQ                          3*        C     •        ft         Qi        H>         ft          1                0i      •o
        •
                          ID                          ID                 rt                              3                   O        O                   «          CO                                 ID     0>    O
                                                                                                                                                                                                                                            ^                                                                                 •
                                                       1                                                                     ID       Ml                  ID         ID                 3        ID     a      3    CO      ID        n              o                    o                                           1
                          a                                                                                                                                                                             •                                                                                                                         1
                                                                                                                                                                     »-•                                       rt           3         rt                                  3
                                                                                                                                                                                                                        *                                                  1
                                                                                                                                                                                                                                      CO
THE COURT:   "You may not have any problems with the last witness,..
             But I want to make sure you hear everything. If you
             don't, stop and let me know, and I will assist you
             with   that."

COURT COORDINATOR: "I don't think he hears you right now judge."

(4 RR 77).

 It is a chilling notion that any Court would entertain the idea
that an attorney operating with a hearing impairment to the degree
represented by the evidence contained in the record of trial,(not
to mention the evidence which may have come to light had a hearing
been granted on the motion for new trial) rendered effective as
sistance of counsel. Review should be granted to disabuse any
Texas Court of Appeals of such a notion, in light of Strickland's
focus on reliability.


                                  PRAYER



Wherefore, Petitioner respectfully request that the Court of Crimi
nal Appeals will GRANT this Petition for Discretionary Review.



Dated: /0~/3 ""              »2015
                         CERTIFICATE      OF   SERVIC


I hereby certify that I mailed a true and/correct copy of
foregoing to the Harris County District Attorney, 1201 Franklin,
Suite 600,   Houston,   TX 77002 via U.S.       mail.




Dated: /d " f3 ~          /2015
                                                        Bermudjez

                                                  /




                                     12
Opinion issued July 28, 2015




                                      In The


                               Court of gppeate
                                      For The


                          $ ir*t JBtetrtct of Cexaa

                               NO. 01-14-00160-CR



                      ANTONIO BERMUDEZ, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 184th District Court
                            Harris County, Texas
                          Trial Court Case No. 1370940




                                   OPINION


      A jury found Antonio Bermudez guilty of aggravated assault.1 He filed a

motion for new trial complaining of his trial counsel's inability to hear unspecified

portions of the trial. He further asserted that his attorney's inability to hear


      Tex. Penal Code Ann. § 22.02 (West 2011).
effectively deprived him of his sixth amendment right to counsel. The trial court

denied the motion without a hearing. On appeal, he argues that the trial court

abused its discretion by not holding a hearing. We hold that (1) Bermudez

preserved this issue for appellate review but (2) his motion does not present

reasonable grounds to assert a violation of the sixth amendment right to counsel.

Accordingly, we affirm.

                                   Background

      Bermudez hired two attorneys to represent him at trial. One of those

attorneys, who served as lead trial counsel, has poor hearing. Bermudez's other

defense attorney, who second-chaired the trial, has no hearing loss.

      Approximately six times during the four-day trial, the lead defense attorney

asked either the trial judge or a witness to speak up or repeat a phrase. When the

attorney complained of difficulty hearing bench conferences, the trial court agreed

to simply dismiss the jury during the conferences so that the parties could talk at a

normal volume. The attorney also had trouble hearing several witnesses, especially

one witness who spoke so softly that the trial court paused the testimony to make

sure the jury could hear what the witness was saying.

      Bermudez timely filed a motion for new trial, contending that his lead

attorney could not hear unspecified portions of the trial but, he alleges, did not

always alert the trial court to that fact. Bermudez filed a second, identical motion
ten days later. The motion explicitly requests a hearing, outlines evidence to be

adduced at that hearing, and includes a proposed order to set a date for a hearing on

the motion. The trial court denied the motion on the same day without a hearing.

      Bermudez timely appealed. In his sole issue, he contends that the trial court

abused its discretion by denying his motion without granting him a hearing to fully

develop evidence in support of the motion.

                                  Preservation of Error


      The State contends that Bermudez waived any error from the failure to hold

a hearing on the motion. To preserve error, an appealing party must present a

timely, specific complaint to the trial court and obtain a ruling or refusal to rule.

Tex. R. App. P. 33.1. In this case, the State concedes that Bermudez timely filed his

motion for new trial and presented it to the trial court. But it argues that Bermudez

failed to specifically request a hearing on his motion or, alternatively, failed to

obtain a ruling on the request.

      Bermudez's motion begins: "Defendant. . . requests a hearing." The motion

relies on facts "that the evidence at a hearing on this motion for new trial will

show...." It concludes: "Mr. Bermudez respectfully requests this Court to set a

hearing on his motion...." It includes two proposed orders. The first, which the

trial court did not sign or mark in any way, is an order to set a hearing on the
motion. The second, which the trial court signed, disposes of the motion "[u]pon

consideration of the motion and argument ofcounsel...." (emphasis added).

      The State, citing Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App.

2009), contends that merely attaching an order to set a hearing, without something

more, fails to preserve error. The State also cites Perez v. State, 429 S.W.3d 639,

644 (Tex. Crim. App. 2014), to contend that"[b]oiler plate language in the prayer

is not sufficient to put the court on notice that the appellant wants a hearing." But

Bermudez's motion requests a hearing twice. It is predicated on facts to be

established at a hearing. Bermudez attached a proposed order to set a hearing and

another to dispose of the motion based on "argument" at that hearing. This is more

than mere boilerplate language—it is an attempt to obtain a hearing.

      Moreover, the motions in both Gardner and Perez were never presented to a

trial court and were overruled by operation of law. Gardner, 306 S.W.3d at 305;

Perez v. State, No. 10-11-00253-CR, 2013 WL 3770953, at *5 (Tex. App.—Waco

July 18, 2013) (mem. op., not designated for publication), qff'd, 429 S.W.3d 639

(Tex. Crim. App. 2014). In contrast, the motion for new trial in this case was

presented to and denied by the trial court. In Reyes v. State, 82 S.W.3d 351, 353

(Tex. App.—Houston [1st Dist.] 2001, no pet.), the defendant filed a motion for

new trial with an attached order to set a hearing. We held that the defendant in

Reyes preserved the issue of whether he should have received a hearing on his
motion for new trial, even though the trial court never marked the proposed order

to set a hearing, because the defendant presented his written motion and obtained a

ruling on it. Id. This case presents the same situation.

      Finally, the State, relying on Oestrick v. State, 939 S.W.2d 232, 235 (Tex.

App.—Austin 1997, pet. ref d), argues that Bermudez never obtained a ruling on

the proposed order to set a hearing because the court did not mark it. In Oestrick,

the Austin Court of Appeals held that a trial court does not rule on an unmarked

proposed order to set a hearing when the related motion for new trial is overruled

by operation of law. Id. But we have held that Oestrick does not apply when, as in

this case, "the trial court explicitly ruled on the motion for new trial by a signed

order." Torres v. State, 4 S.W.3d 295, 297 (Tex. App.—Houston [1st Dist.] 1999,

no pet); see Reyes, 82 S.W.3d at 353.

      Accordingly, by signing the order denying Bermudez's motion for new trial,

the trial court ruled on his attached request for a hearing. Thus we conclude that

Bermudez preserved the issue of whether the trial court abused its discretion by

failing to hold a hearing on his motion.

                                 Hearing on Motion

A.     Standard of review


       We review the trial court's denial of a hearing on a motion for new trial for

abuse of discretion. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993).
To establish an abuse of discretion, "a defendant need not establish a prima facie

case for a single cognizable ground raised in his motion for new trial." Jordan v.

State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (citing Mclntire v. State, 698

S.W.2d 652, 658 (Tex. Crim. App. 1985)). Instead, "a defendant need only assert

reasonable grounds for relief which are not determinable from the record in order

to be entitled to a hearing." Id. If a defendant meets this burden, a hearing on the

motion is mandatory. Torres, 4 S.W.3d at 296.

      To determine whether Bermudez asserted reasonable grounds for a new trial,

we must consider the ultimate question before the trial court: Did Bermudez's

attorney's hearing impairment cause him to render ineffective assistance of.

counsel? Courts evaluate claims of ineffective assistance of counsel under the


standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984). Under Strickland, a defendant must show that (1) counsel's

performance fell below an objective standard of reasonableness and (2) but for

counsel's unprofessional error there is a reasonable probability that the result of the

proceedings would have been different. Id. at 687-94, 104 S. Ct. at 2064-68;

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      Ineffective assistance will be presumed if counsel is actually or

constructively absent. United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct.

2039, 2046-47 (1984). "Cronic held that a Sixth Amendment violation may be
found 'without inquiring into counsel's actual performance or requiring the

defendant to show the effect it had on the trial.'" Wright v. Van Patten, 552 U.S.

120, 124, 128 S. Ct. 743, 746 (2008) (quoting Bell v. Cone, 535 U.S. 685, 695, 122

S. Ct. 1843,1850(2002)).

B.    Reasonable grounds not determinable from the record

      To demonstrate on appeal that the trial court erred by not granting him a

hearing on his ineffective assistance of counsel claim, Bermudez must show that

his attorney's inability to hear is a reasonable ground—not determinable from the

record—to assert a claim of ineffective assistance of counsel. Wallace v. State, 106

S.W.3d 103, 108 (Tex. Crim. App. 2003).

      Bermudez's motion presents one ground for a new trial: a contention that an

attorney who cannot hear is analogous to a sleeping attorney. In Burdine v.

Johnson, 262 F.3d 336, 349 (5th Cir. 2001), the Fifth Circuit concluded that

"[u]nconscious counsel equates to no counsel at all." Thus, unconscious counsel is

constructively absent and cannot satisfy the Sixth Amendment's right to counsel.

"Unconscious counsel does not analyze, object, listen or in any way exercise

judgment on behalf of a client." Id.

      Bermudez's analogy to Burdine is inapposite. First, it ignores the fact that

Bermudez's second-chair attorney has no hearing loss. In Ex parte McFarland, 163

S.W.3d 743, 760 (Tex. Crim. App. 2005), the Court of Criminal Appeals held that
the rule in Burdine does not apply when one attorney is sleeping but another is

awake. Even if hearing loss were analogous to unconsciousness, the presence of

co-counsel requires the rejection of Bermudez's argument.

      Second, we disagree with Bermudez's contention that an attorney who

cannot hear is indistinguishable from an unconscious attorney. As the Burdine

court noted, "An unconscious attorney does not, indeed cannot, perform at all....

[T]he attorney that is unconscious ... is simply not capable of exercising

judgment." 262 F.3d at 349. In contrast, an attorney with hearing loss is still

capable of exercising judgment. And part of his professional judgment is to discern

the appropriate method, if any, to compensate for his hearing loss—whether to

seek assistance from the trial court, utilize electronic aids, lip read, rely on his co-

counsel, or use any other compensation technique.

      This case is similar to Dent v. State, No. 01-12-01043-CR, 2014 WL

346728, at *4 (Tex. App.—Houston [1st Dist.] Jan. 30, 2014, no pet.) (mem. op.,

not designated for publication). In Dent, the appellant raised a number of

arguments for ineffective assistance of counsel, including "that trial counsel's

hearing impairment made him unable to follow the proceedings, thereby making

his representation inadequate." Id. This Court found no error sufficient to satisfy

the first prong of Strickland.

      Trial counsel and the court in this case were proactive in resolving any
      problems arising from counsel's hearing impairment. Co-counsel
      assisted in pointing out when trial counsel was having trouble hearing,
      and the trial court gave co-counsel opportunities to relay the court's
      communications to trial counsel. Instead of holding whispered bench
      conferences, which trial counsel had difficulty hearing, the trial court
      excused the jury from the courtroom when lengthy issues arose so that
      discussions could take place at a normal speaking volume.

Id. This case presents nearly identical facts. Bermudez's lead attorney proactively

sought assistance when necessary, the trial court made identical modifications to

the standard bench-conference_prQcedure, and co-counsel provided support by

relaying information to the lead attorney. All of this information is discernable

from the record, without the need for an evidentiary hearing.

      Bermudez's motion claims that his lead attorney did not always alert the trial

court that he could not hear. But even if that is true, it does not change our

analysis. The record shows that the trial court was generally able to recognize

when the lead attorney had trouble hearing. Regardless, we have already concluded

that Bermudez's lead attorney was not constructively absent. Therefore, the issue is

not the attorney's hearing, but rather the attorney's performance. In this case, the

trial court saw the attorney's performance throughout the entire course of the trial.

The trial court saw, and the record reflects, that the attorney proactively sought to

compensate for his hearing loss just like the attorney in Dent. Therefore,

Bermudez's motion fails to assert any reasonable grounds for relief not

determinable from the record.
      The trial court did not abuse its discretion by denying a hearing on the

motion for new trial. Accordingly, we overrule Bermudez's sole point of error.

                                    Conclusion


      We affirm the judgment of the trial court.




                                             Harvey Brown
                                             Justice


Panel consists of Justices Keyes, Higley, and Brown.

Publish. Tex. R. App. P. 47.2(b).
                                         ft ^^
                                            ^
                                            £^
                                             ^   N

                                            ^


                              N


                              ^3

    *            ^

                 *                         00
             ^
             X



^
N        <\



        U




                     ~        8 5 c
        JN
                               O    CO


                         ^^    -i   a
                               X    m
                         o
