                                                                                        ACCEPTED
                                                                                    01-15-00135-CR
                                                                         FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                               9/8/2015 12:16:36 AM
                                                                              CHRISTOPHER PRINE
                                                                                             CLERK



                          01-15-00135-CR
                 In the First Court of Appeals of Texas            FILED IN
                                                            1st COURT OF APPEALS
                                                                HOUSTON, TEXAS
                                                            9/8/2015 12:16:36 AM
                                                            CHRISTOPHER A. PRINE
                           Pete Rodriguez,                          Clerk
                              Appellant
                                   v.
                          The State of Texas,
                              Appellee



                   On Appeal from Cause 1389063
             In the 182nd District Court of Harris County



                          Brief for Appellant


Oral Argument Requested                   Franklin Bynum
                                          Texas Bar Number 24069451
                                          franklin@bynumlaw.net
                                          Bynum Law Office PLLC
                                          2814 Hamilton Street
                                          Houston, Texas 77002
                                          (713) 343-8844
                                          Counsel for Appellant
                      Identity of Parties and Counsel

Appellant                               Pete Rodriguez
                                        SPN 01763152
                                        Harris County Jail
                                        701 North San Jacinto
                                        Houston, Texas 77002

Defense Counsel at Trial                Mickel Newton, Jr.
                                        PO Box 772914
                                        Houston, Texas 77215

Prosecutor at Trial                     Stephen Driver
                                        Assistant District Attorney
                                        Harris County District Attorney’s Office
                                        1201 Franklin Street, 6th Floor
                                        Houston, Texas 77002

Judge Presiding                         The Honorable Jeannine Barr
                                        182nd District Court
                                        1201 Franklin Street, 18th Floor
                                        Houston, Texas 77002

Appellant’s Counsel                     Franklin Bynum
                                        Bynum Law Office PLLC
                                        2814 Hamilton Street
                                        Houston, Texas 77004




                                    2
                                             Table of Contents
Identity of Parties and Counsel ............................................................................ 2	  

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

Index of Authorities ............................................................................................ 5	  

Statement of the Case......................................................................................... 7	  

Issues ................................................................................................................ 7	  

Statement of Facts .............................................................................................. 8	  

Argument ......................................................................................................... 11	  

  Issue One: The trial judge may not give an incorrect admonishment
  regarding eligibility for community supervision. In this case, the trial judge
  told the defendant that he was not eligible for community supervision from
  a jury, when in fact he was, and he relied on the incorrect admonishment
  when he elected for court punishment. Was the judge’s incorrect
  admonishment harmful error? ............................................................ 11	  

     A.	   The law authorizes community supervision from a jury here ...... 11	  

     B.	   The trial judge committed fundamental error when she foreclosed
     the possibility of probation ................................................................ 12	  

     C.	   This is structural error not subject to harm analysis .................... 14	  

  Issue Two: Trial counsel must give accurate advice regarding eligibility for
  community supervision. The trial lawyer here incorrectly advised that
  community supervision was not available from a jury, and his client relied
  detrimentally on that advice. Was trial counsel ineffective for giving
  incorrect advice about eligibility for community supervision?................ 15	  

     A.	   Strickland requires proof of deficient conduct by preponderance
     of the evidence, then proof of prejudice by less than a preponderance
     of the evidence .................................................................................. 15	  

     B.	   Mr. Rodriguez was eligible and would have sought probation had
     he been correctly informed about his eligibility ................................. 17	  

                                                            3
Prayer ..............................................................................................................18	  

Certificate of Compliance ..................................................................................18	  

Certificate of Service .........................................................................................18	  




                                                           4
                                         Index of Authorities

                                                       Cases	  

Arizona v. Fulminante, 499 U.S. 279 (1991) ............................................................. 14

Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) .............................................. 17

Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006) ........................................ 14

De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004). ...................................... 13

Ex parte Williams, 704 S.W.2d 773 (Tex. Crim. App. 1986) .................................... 13

Harrison v. State, 688 S.W.2d 497 (Tex. Crim. App. 1985) ..................................... 13

Jeﬀerson v. State, 803 S.W.2d 470 (Tex. App–Dallas 1991) ..................................... 14

McClenan v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983) .................................... 13

Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App. 1992) .......................................... 16

State v. Recer, 815 S.W.2d 730 (Tex. Crim. App. 1991). ........................................... 17

Strickland v. Washington, 466 U.S. 668 (1984) ................................................... 15, 16

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ............................................. 14

Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986) .................................... 15

                                                      Statutes	  

Tex. Code. Crim. Proc. Ann. art. 26.12 (West, WestlawNext through the end of the
  84th Legislature). ................................................................................................ 13

Tex. Code. Crim. Proc. Ann. art. 42.12 § 4(d) (West, WestlawNext through the end
  of the 84th Legislature). ...................................................................................... 12

                                                 Online Sources	  

John Bradley, ‘Jessica’s Law’ comes to Texas, TDCAA website, 2007,
  http://www.tdcaa.com/node/1450. .................................................................... 11


                                                          5
                                           Legislative Materials	  

H.B. 7, 80th Leg. (Tex. 2007) ................................................................................. 11

H.B. 7, introduced version, 80th Leg. (Tex. 2007). ................................................ 11




                                                       6
                             Statement of the Case
         A Harris County grand jury indicted Pete Rodriguez on Novem-
ber 6, 2013 for indecency with a child.1 Rodriguez pleaded not guilty and
the case proceeded to jury trial on January 15, 2015.2 On January 21,
2015, the jury found Rodriguez guilty as charged in the indictment and
the judge imposed a ten-year prison sentence.3 Rodriguez gave notice of
appeal on February 4, 2015.4
                                       Issues
                    Issue One: The trial judge may not give an
                    incorrect admonishment regarding eligibility
                    for community supervision. In this case, the
                    trial judge told the defendant that he was not
                    eligible for community supervision from a
                    jury, when in fact he was, and he relied on the
                    incorrect admonishment when he elected for
                    court punishment. Was the judge’s incorrect
                    admonishment harmful error?

                    Issue Two: Trial counsel must give accurate
                    advice regarding eligibility for community
                    supervision. The trial lawyer here incorrectly
                    advised that community supervision was not
                    available from a jury, and his client relied
                    detrimentally on that advice. Was trial



1
  (C.R. at 16)
2
  (3 R.R. at 128)
3
  (7 R.R. at 5)
4
  (C.R. at 123)




                                          7
                 counsel ineﬀective for giving incorrect advice
                 about eligibility for community supervision?

                                Statement of Facts
        The complainant in this case, whose birthday appears in the rec-
ord, 5 described several times when her genitals were touched. The pros-
ecutor asked her what happened in “November 2012” and she said that
Mr. Rodriguez had come into the living room of the apartment—where
she slept on the couch, and others slept nearby—and touched her “mid-
dle part” over her clothes without touching her skin.6
        The complainant also claimed that Mr. Rodriguez touched her
“skin to skin one time” without providing any information about when
that might have happened or providing any other details about how she
was touched that time.7
        She described the first time she remembers being touched was in
“fourth grade,” when she said that he used his “hand” to touch her
“middle part” without saying whether it was over clothes.8 After fourth
grade, it happened “more than once,” but she did not say how many
times or when.9




5
  The birthdate appears at Volume 5, Page 23, Line 10 and is not repeated here because the Rules
define it as “sensitive data.” Tex. R. App. P. 9.10.
6
  (5 R.R. at 35-37)
7
  (5 R.R. at 38)
8
  (5 R.R. at 53)
9
  (5 R.R. at 54)




                                                8
            At a pretrial conference before jury selection and before the de-
fendant’s plea and punishment election, the judge said: “So, then if you
go forward with the case as it's charged, it is a second-degree felony, two
years to 20 years in prison. If you’re found guilty, the jury cannot assess
probation. You understand that?”10 The judge continued:
                     the court: Okay. And that's because—just
                     so that the record’s clear, Section 42.12, Sec-
                     tion 4(d), as in dog, 5. Because it’s my under-
                     standing that the age of the victim at the time
                     of the oﬀense was under 14?
                     [prosecutor]: Yes, Judge.	 
                     the court: Okay.11
            And then, to emphasize the point once more:
                     the court: So, I just want to make sure
                     that you understand that, that if in the event
                     that there is a finding of guilt, probation—the
                     jury can’t even give you probation. Do you
                     understand that?
                     the defendant: Yes, ma’am.
                     the court: Okay. And is—at this time it is
                     your choice to go forward with the trial?
                     the defendant: Yes, ma’am. 




10
     (2 R.R. at 6)
11
     (2 R.R. at 6)




                                           9
         Mr. Rodriguez completed a punishment election selecting jury
punishment.12 He did not file a motion for community supervision. Af-
ter the guilty verdict, Mr. Rodriguez switched his election to judge pun-
ishment, with the State’s consent.13
         The defense lawyer rested without calling any punishment wit-
nesses and without making any argument.14
         Appellate counsel filed a motion for new trial alleging that the
trial lawyer incorrectly advised Mr. Rodriguez that he was not eligible
for community supervision.15
         The trial court held a hearing on the motion for new trial, by aﬃ-
davit.16 The trial court admitted an aﬃdavit by the defense lawyer saying
that his understanding was that Mr. Rodriguez was not eligible for com-
munity supervision.17 Mr. Rodriguez stated in his aﬃdavit that he relied
to his detriment on the statements by both his lawyer and the trial judge,
and that had he known he was eligible for community supervision he
would have filed a sworn motion for community supervision and sought
a probated sentence from the jury.18 Mr. Rodriguez added that he would




12
   (C.R. at 106)
13
   (7 R.R. at 4)
14
   (7 R.R. at 5)
15
   (C.R. at 128)
16
   (1A R.R. at 4)
17
   (C.R. at 158)
18
   (C.R. at 156)




                                     10
have testified on his own behalf had he known he was eligible for com-
munity supervision.19 The trial court denied the motion for new trial.20
                                       Argument
                 Issue One: The trial judge may not give an
                 incorrect admonishment regarding eligibility
                 for community supervision. In this case, the
                 trial judge told the defendant that he was not
                 eligible for community supervision from a
                 jury, when in fact he was, and he relied on the
                 incorrect admonishment when he elected for
                 court punishment. Was the judge’s incorrect
                 admonishment harmful error?

     A.  The law authorizes community supervision from a jury here

        In 2007, the Texas Legislature passed, and the governor signed,
House Bill 8, known as “Jessica’s Law.”21 The bill as originally intro-
duced created a new first-degree felony for indecency by contact with a
child under 14, and made the new oﬀense not eligible for community
supervision from a jury.22 The enrolled version of the bill kept the re-
striction on community supervision, but dropped the new oﬀense.23




19
   (C.R. at 155)
20
   (1A R.R. at 13)
21
   John Bradley, ‘Jessica’s Law’ comes to Texas, TDCAA website, 2007,
http://www.tdcaa.com/node/1450.
22
   H.B. 7, introduced version, 80th Leg. (Tex. 2007).
23
   H.B. 7, 80th Leg. (Tex. 2007).




                                              11
        And so, the law today is that indecency with a child by contact is
a second-degree felony that is eligible for community supervision, un-
less the complainant is under 14.24 Since the age of the complainant is
not an element of the oﬀense, the mechanism for determining the age
of the complainant—and eligibility for community supervision—is the
same as any other eligibility requirement of 42.12 § 4: the fact issue is
submitted to the jury, and if they found—among other requirements—
that the complainant was 14 or older at the time of the oﬀense, they
would be empowered to probate the sentence.25
        Since the indictment and the jury charge authorize a conviction
for the oﬀense if it occurred anytime within the limitations period—and
there is no limitations period—the jury would be required to make a
specific finding at punishment regarding the age of the complainant to
probate the sentence.
     B.  The trial judge committed fundamental error when she
         foreclosed the possibility of probation

        This is apparently a case of first impression, regarding a judge’s
duty to provide correct information regarding eligibility for community
supervision to a defendant who is pleading not guilty.




24
   See Tex. Code. Crim. Proc. Ann. art. 42.12 § 4(d) (West, WestlawNext through the end of the
84th Legislature).
25
   See Id.




                                              12
         There are scores of cases analyzing incorrect information in the
context of a guilty plea, and they are unanimous: “a trial court has no
duty to admonish as to the availability of probation,” but if a judge
chooses to admonish regarding eligibility before a plea of guilty, the ad-
monishment must be correct.26 The source of the judge’s duty to pro-
vide accurate information is the statute providing the procedure for
guilty pleas.27
         The statutory procedure for not-guilty pleas is far less detailed,
of course, because a plea of not guilty does not require waiving any
rights: “If the defendant answers that he is not guilty, such plea shall be
entered.”28 Yet, if the judge chooses to volunteer information about the
availability of community supervision, that information must be cor-
rect; the source of this duty is foundational principles of Due Process
under the Fifth and Fourteenth Amendments and Due Course of Law
under the Texas Constitution.29
         Even though probation is not part of the range of punishment, the
incorrect admonishment here is analogous to a judge announcing that




26
   Harrison v. State, 688 S.W.2d 497, 499 (Tex. Crim. App. 1985).
27
   Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986) (“trial court may impose a duty
upon itself under Article 26.13(a)(1) to admonish a defendant accurately as to the availability of
probation”).
28
   Tex. Code. Crim. Proc. Ann. art. 26.12 (West, WestlawNext through the end of the 84th Legis-
lature).
29
   See McClenan v. State, 661 S.W.2d 108, 109 (Tex. Crim. App. 1983) overruled on other grounds by
De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004).




                                                13
she will not consider the full range of punishment, a practice that is
strictly forbidden.30
     C.  This is structural error not subject to harm analysis

         This case presents a dramatic systemic failure, in which the trial
judge, the prosecutor, and the defense lawyer all unwittingly conspired
to deprive Pete Rodriguez of the opportunity to seek community super-
vision from the jury. The ultimate responsibility for this failure rests
with the trial judge, whose incorrect admonishment amounted to sys-
temic error.
         This is one of the “structural defects in the constitution of the
trial mechanism, which defy analysis by ‘harmless-error’ standards.”31
Only a few categories of error count as structural defects; the quality
they share is that they aﬀect “the framework within which the trial pro-
ceeds, rather than simply an error in the trial process itself.”32
         In cases like this, harmless-error analysis fails to be anything but
a constitutionally impermissible “speculative inquiry into what might
have occurred in an alternative universe.”33
         In this case, what would have happened if the judge had an-
nounced the correct law, if a jury were selected with questions about



30
   See, e.g., Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006); Jeﬀerson v. State, 803 S.W.2d
470, 471 (Tex. App–Dallas 1991).
31
   Arizona v. Fulminante, 499 U.S. 279, 309 (1991).
32
   Id.
33
   United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006).




                                                14
probation, if the defense were made with the aim of making Mr. Rodri-
guez eligible for probation, if Mr. Rodriguez had not changed his pun-
ishment election to the judge from the jury. There are simply too many
inquiries to make for an eﬀective harm analysis. Under Fulminate and
its progeny, this case presents systemic error that requires reversal with-
out a harm analysis.
                    Issue Two: Trial counsel must give accurate
                    advice regarding eligibility for community
                    supervision. The trial lawyer here incorrectly
                    advised that community supervision was not
                    available from a jury, and his client relied
                    detrimentally on that advice. Was trial
                    counsel ineﬀective for giving incorrect advice
                    about eligibility for community supervision?

           Trial counsel prepared the entire defense under the misunder-
standing that Mr. Rodriguez was not eligible for community supervi-
sion. His failure to properly advice Mr. Rodriguez was ineﬀective assis-
tance of counsel.
       A.  Strickland requires proof of deficient conduct by
           preponderance of the evidence, then proof of prejudice by
           less than a preponderance of the evidence

           A defendant in a criminal case is entitled to the reasonably eﬀec-
tive assistance of counsel34. Under the standard set out by the United



34
     Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).




                                                 15
States Supreme Court in Strickland v. Washington,35 a defendant seeking
relief as a result of trial counsel’s inept performance must first show that
counsel’s performance was deficient and then demonstrate that this de-
ficient performance prejudiced the defense.36 Trial counsel’s perfor-
mance is measured against an “objective standard of reasonableness”
evaluated considering “prevailing professional norms.”37
         The two-part Strickland test carries two distinct burdens of proof:
first, the defendant must prove deficient performance by a preponder-
ance of the evidence; second, the defendant must prove that the out-
come may have been diﬀerent, but, importantly, prejudice need not be
proven by a preponderance of evidence.38 “The result of a proceeding
can be rendered unreliable, and hence, the proceeding itself unfair, even
if the errors of counsel cannot be shown by a preponderance of the evi-
dence to have determined the outcome.”39
         Applying that framework to this exact situation, the Court of
Criminal Appeals requires: 1) evidence that the defendant was initially
eligible to receive probation; 2) that counsel's advice to go to the trial
judge for sentencing was not given as part of a valid trial strategy; 3) that
the defendant's decision to have the judge assess punishment was based



35
   466 U.S. 668, 698 (1984).
36
   Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992).
37
   Strickland, 466 U.S. at 688.
38
   Id. at 694-96.
39
   Id.




                                                16
on his attorney’s erroneous advice; and 4) that the defendant's decision
would have been diﬀerent if her attorney had correctly informed her of
the law. 40
       B.  Trial counsel was ineﬀective because Mr. Rodriguez was
           eligible and would have sought probation had he been
           correctly informed about his eligibility

            Mr. Rodriguez stated in his aﬃdavit admitted at hearing on the
motion for new trial that he had not been convicted of a felony in this or
any other state, and that he based his decision to not seek probation
based on his lawyer’s faulty advice. He stated that he would have sought
probation had he known then what he knows now. He also stated that
the incorrect advice interfered with his decision to testify in his defense.
Trial counsel has no strategic reason for his action. This is a classic case
of ineﬀective assistance of counsel.
            Consider also that ineﬀective assistance may be the preferred
procedural method—when available, as it is here—to address claims of
fundamental error.41
            Mr. Rodriguez need only show a reasonable possibility that the re-
sult would have been diﬀerent. With a decent defense lawyer putting on
an actual defense, there would have been a reasonable possibility that
the result would have been diﬀerent. The record does not contain much



40
     State v. Recer, 815 S.W.2d 730, 731-32 (Tex. Crim. App. 1991).
41
     See Blue v. State, 41 S.W.3d 129, 144 (Tex. Crim. App. 2000) (Keller, P.J., dissenting).




                                                   17
evidence regarding the dates of the contact, but the jury charge author-
ized, and the jury was free to convict, based on any theory at all within
the limitations period. With a defense that made a sound, strategic at-
tack on the uncertainty regarding dates, there is a reasonable possibility
the result would be diﬀerent.
                                Prayer
      Pete Rodriguez prays that this Honorable Court reverse the judg-
ment of conviction and remand for a new trial.
                    Certificate of Compliance
      The word-processing software used to write this brief reports its
length as 2724 words before subtracting for any of the contents that may
be excluded under Rule 9.4(i)(1).
                      Certificate of Service
      I provided this brief to the Harris County District Attorney by
electronic service to curry_alan@dao.hctx.net simultaneously with the
electronic filing of this document.

                                      Respectfully,

                                      /s/ Franklin Bynum
Bynum Law Office PLLC                 Franklin Bynum
2814 Hamilton Street                  Texas Bar Number 24069451
Houston, Texas 77002                  franklin@bynumlaw.net
(713) 343-8844




                                      18
