                                                                                   ACCEPTED
                                                                               06-14-00220-CR
                                                                    SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                         8/18/2015 11:11:55 PM
                                                                              DEBBIE AUTREY
                                                                                        CLERK

                         NO. 06-14-00220-CR

____________________________________________________________
                                                  FILED IN
                                                       6th COURT OF APPEALS
                                                         TEXARKANA, TEXAS
                     IN THE COURT OF APPEALS           8/19/2015 10:11:00 AM
                                                            DEBBIE AUTREY
                            SIXTH DISTRICT                      Clerk


                        AT TEXARKANA, TEXAS

____________________________________________________________

              SHAHID KARRIEM ANSARI,III, APPELLANT

                                   V.

                  THE STATE OF TEXAS, APPELLEE

____________________________________________________________

                  APPEAL IN CAUSE NUMBER 27,739

               IN THE 354TH JUDICIAL DISTRICT COURT

                      OF HUNT COUNTY, TEXAS

____________________________________________________________

                        BRIEF FOR APPELLANT

____________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
      Comes now the Counsel for Appellant and submits this brief pursuant
to the provisions of the Texas Rules of Appellate Procedure.
                 IDENTITY OF PARTIES AND COUNSEL

Appellate Attorney:
Jason A. Duff
2615 Lee Street
P.O. Box 11
Greenville, Texas 75403

Appellant’s Trial Attorney:
Christopher L. Castanon
200 E. Lamar Blvd., Suite 600
Arlington, TX 76006

Appellee:
The State of Texas by and through
Lauren Hudgeons
Asst. Hunt County District Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401




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                                    TABLE OF CONTENTS


Identity of the Parties and Counsel ............................................................. 2

Table of Contents ....................................................................................... 3

Index of Authorities ..................................................................................... 4

Statement of the Case ................................................................................ 5

Statement of the Facts ................................................................................ 6

Issues and Authorities................................................................................. 7

        Ineffective Assistance of Counsel .................................................. 7

Conclusion and Prayer for relief ................................................................ 14

Certificate of compliance of typeface and Word Count ............................. 15

Certificate of Service ................................................................................. 16




                                                                                                          3
                                    INDEX OF AUTHORITIES

FEDERAL CASE:

Strickland v. Washington, 466 U.S. 668 (1984)........................................... 8

STATE CASES:

Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979) ....................... 8

Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984) .................. 7

Eddie v. State, 100 S.W.3d 437 (Tex.App.—Texarkana 2002) ................. 10

Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) ................... 8

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) ............ 7

Hall v. State, 161 S.W.3d 142, (Tex. App.—Texarkana 2005, pet. ref’d)…..8

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) .................. 7

Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000) ........................ 8

Toupal v. State, 926 S.W.2d 606, 608 (Tex.App.-Texarkana 1996,

no pet.) ..................................................................................................... 10

Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.—Texarkana 2002) ......... 8



STATE STATUTES

TEX. HS. CODE ANN §481.121 (Casemaker 2015) ................................... 9

TEX. PEN. CODE ANN §36.06(c) (Casemaker 2015) ................................ 9




                                                                                                               4
                       STATEMENT OF THE CASE

      This is an appeal of the judgment and sentence in a criminal case for

the 354th Judicial District, in Hunt County, Texas. Appellant originally Plead

Guilty and signed a Judicial confession of the crime of Burglary of

Habitation on July 3, 2012. The court honored a plea bargain and

assessed Appellant 6 years deferred probation. The state file a Motion to

revoke on April 16, 2013 and the trial court sentenced Appellant to 90 day

confinement in the Hunt County Jail as a sanction and dismissed that

motion to revoke on August 1, 2013. (CR Vol. 1 p. 92). A final motion to

revoke hearing was held on November 20, 2014, and the trial court

sentence Appellant to 7 years TDCJ.

      Notice of appeal was given on November 26, 2014 in the trial court.

The reporter’s record was filed on May 21, 2015




                                                                             5
                     STATEMENT OF THE FACTS

     Plead Guilty and signed a judicial confession of the crime of Burglary

of Habitation on July 3, 2012. The court honored a plea bargain and

assessed Appellant 6 years deferred probation.

     Attorney Chris Castanon was appointed for appellant on November 6,

2014. (CR Vol. 1 p. 119). The State filed an amended Motion to revoke on

November 13, 2014. (CR Vol. 1 p. 121). That same day Attorney

Castanon informed the Court that Appellant would be pleading true to

Paragraphs 1, 2, and 6 of the amended Motion to revoke. (RR Vol. 18 p. 5-

7). The trial court conducted a brief hearing on November 20, 2014.




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                          ISSUE AND AUTHORITIES

                    Ineffective Assistance of Counsel

      Any allegation of ineffectiveness of counsel must be firmly founded in

the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999);

Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.—Texarkana 2002), aff’d,

106 S.W.3d 103 (Tex. Crim. App. 2003). Appellant bears the burden of

proving that counsel was ineffective by a preponderance of the evidence.

Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v.

State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). A reviewing court will

rarely be provided the opportunity to make its determination on direct

appeal with a record capable of providing an evaluation of the merits of the

claim involving ineffective assistance claims. Thompson, 9 S.W.3d at 813.

Granted, “[i]n the majority of instances, the record on direct appeal is

simply undeveloped and cannot adequately reflect” the reasoning of trial

counsel. Id. at 813–14.

      Nonetheless the two-pronged Strickland test handed down by the

United States Supreme Court to determines whether Defendant received

ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668

(1984).



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        First, Defendant must show that counsel’s performance fell below

an objective standard of reasonableness in light of prevailing professional

norms. Strickland, at 687–88. It is true, that here is a strong presumption

that counsel’s conduct fell within the wide range of reasonable professional

assistance and that the challenged action could be considered sound trial

strategy. Id. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App.

2000). Therefore, courts will not second-guess the strategy of trial counsel

at trial through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim.

App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana

2005, pet. ref’d).

      Second, Strickland’s prejudice prong requires a showing that but for

counsel’s unprofessional error, there is a reasonable probability that the

result of the proceeding would have been different. Strickland, 466 U.S. at

687–88. A “reasonable probability” is a probability sufficient to undermine

confidence in the outcome, meaning that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is reliable.

Smith, 286 S.W.3d at 340. Strickland requires the applicant to establish, by

a preponderance of the evidence, that the harm resulting from trial

counsel's deficiency undermines the confidence in the trial's outcome. Ex

parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013).



                                                                                 8
Ineffectiveness through failure to develop a defense

      In a case such as this, Appellant can find no prevailing professional

norm that would justify not eliciting mitigating evidence either from the

Appellant or other witness. Moreover no sound trial strategy could justify

the lack of not even eliciting evidence of probation on other charges or how

long he would be on probation severity of the charges. It is apparent from

the record that trial counsel made no meaningful investigation into the facts

of the case.

      Trial Counsel for the Appellant spent a mere page and a half of cross

examination of the state’s only witness at the motion to revoke hearing.

Appellant gave testimony for approximately 6 pages in the record.

      In this case the State alleged a marijuana charge that appears from

the record, is a state jail felony, and is far less than the sentence imposed

in this case. TEX. HS. CODE ANN §481.121 (Casemaker 2015).

      Moreover the state also alleged that Appellant committed an offence

of obstruction, as alleged appears to be a third degree felony in this case,

again a potentially lesser sentence. (CR Vol. 1 p. 121), TEX. PEN. CODE

ANN §36.06(c) (Casemaker 2015).




                                                                                9
      Counsel merely asked how many children Appellant has, and what

their ages were. (RR Vol. 19 p. 15). Counsel made no inquiry as to the

duties or other responsibilities he had as they related to the children.

      Granted this Court has previously found that in a guilty plea, counsel

need not undertake the same magnitude of independent factual

investigation when the defendant knowingly and voluntarily pleads guilty to

the alleged offense as would be required in a contested proceeding. Toupal

v. State, 926 S.W.2d 606, 608 (Tex.App.-Texarkana 1996, no pet.).

Similarly, where a defendant pleads "true" to allegations, Courts hold that

failure to conduct a full-fledged independent investigation of the facts does

not necessarily result in counsel rendering constitutionally ineffective

assistance. Eddie v. State, 100 S.W.3d 437 (Tex.App.—Texarkana 2002).

      Yet, the allegation that Appellant committed an offence of possession

of marihuana first appears in the state’s Amended Motion to revoke that

was only filed on November 13, 2014. This new allegation occurred only

eight days after trial counsel was appointed and made at trial counsel’s first

court appearance. At the November 13, 2014 the trial court inquired the

status of the “December 13, 2013 and the July 31st of 2014” allegations a

break was held and the Appellant plead true. (RR Vol. 18. p. 4-6) Without

asserting that a full-fledged independent investigation of the facts was



                                                                              10
necessarily needed; no meaningful investigation could have occurred at a

break. Moreover the final hearing was a mere week later, and trial counsel

could not have made a meaningful basic investigation to prepare a defense

or gather mitigating evidence.

      Trial counsel's deficiency undermines the confidence in the trial's

outcome by a preponderance of the evidence because the lack evidence to

counter the state’s allegations created a completely unlevelled playing field

in favor of the state. Therefore Appellant was given effective assistance of

counsel.



      Ineffectiveness through Failure to object revocation base on

paragraph six.

      In the State’s “Second Amended Motion for Revoke Community

Supervision” they allege in relevant part:

      “1. Said defendant on or about the 13th day of December 2013, in
the County of Dallas State of Texas, did intentionally obstruct a person he
knew to be a peace officer, namely Matthew Elliott, a officer by Dallas
Marshall’s Office from effecting an arrest, search or transport of defendant
by using force against the peace officer.
      2. Said defendant on or about the 31st day of July 2014, in the
County of Dallas, State of Texas, did intentionally and knowingly possess a
usable quantity of marihuana in an amount of five pounds or less but more
than 4 ounces.
      6. Said defendant failed to complete Anger Management Class as
ordered by the Court.”



                                                                            11
      (CR Vol. 1. P.107-08).


      Though Appellant’s probation was revoked, at least in part, for not

completing an anger management course. The trial court’s order broadly

states in paragraph 19, “Other Conditions: ANGER MANAGEMENT

CLASSES.” (CR Vol. 1 p. 47). It is not specifically ordered to take anger

management classes by any time that is enforceable. The trial courts order

on anger management classes does not specify how may classes to take

or even a minimum number of hours that are needed to comply.

      It is true that Appellant did admit to not taking an anger management

class related to this probation, but there is no indication he was on notice

what and when he was supposed to complete. (RR Vol. 19 p. 12)

      Appellant, by the terms of the Judgment setting out the terms of

community supervision still could have otherwise be in compliance with the

with that portion of the order of community supervision. Thus, trial counsel

clearly failed to elicit testimony or even argue against that allegation which

had a reasonable probability to undermine the outcome of seven years

TDCJ.




                                                                               12
      Strickland’s prejudice prong

      But for trial counsel’s unprofessional errors, there is a reasonable

probability that the result of the proceeding would have been different.

      The trial court’s statement was an unambiguous indication that had

defendant complied with some of the terms of his probation, a lesser

sentence would have been likely. Therefore if it not for trial counsel’s error

a different outcome would have been likely.




                                                                             13
                            PRAYER FOR RELIEF

      Wherefore, premises considered, Appellant respectfully prays that his

revocation of community supervision in the above entitled and numbered

cause be reversed and remanded for a new hearing. Appellant further

prays for all other lawful relief to which he may be entitled, at law or in

equity.

                                                  Respectfully submitted,



                                                    /s/ Jason A. Duff______
                                                  Jason A. Duff
                                                  State Bar No. 24059696
                                                  2615 Lee Street
                                                  P.O. Box 11
                                                  Greenville, TX 75403

                                                  Attorney for the Appellant




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 CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

        In accordance with Texas Rules of Appellate Procedure 9.4 (e) and
(i), the undersigned attorney or record certifies that Appellants Brief
contains 14-point typeface of the body of the brief, 12-point typeface for
footnotes in the brief and contains 1,418, excluding those words identified
as not being counted in appellate rule of procedure 9.4(i)(1), and was
prepared on Microsoft Word 2010.


____/s/ Jason A. Duff____              _________
Jason A. Duff
Attorney for the Appellant




                                                                          15
                       CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to Sixth Court of Appeals, Texarkana, Texas and
to Hunt County Attorney Joel D. Littlefield, on this the 18th day of August,
2015, by Electronic Filing and Service.


___/s/ Jason A. Duff           _________
Jason A. Duff
Attorney for the Appellant




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