fonts                  tott-ts tents
          Nos. PD-1017-15, PD-1018-15, PD-1019-15
                                                               ORIGINAL
                          IN THE
              COURT OF CRIMINAL APPEALS
                        OF TEXAS



                ANDRIAMARIE STANLEY                      n RECEIVED IN
                        Petitioner                       C0URT 0F CR!^ APp6ALS
                             vs.
                                                                OCT 22 2015-

                  THE STATE OF TEXAS                         Abej Acosta C|@rk
                             Respondent


          Petition in Cause Nos. D-l-DC 12-300267,
           D-l-DC 12-300754, D-l-DC 12-300755                  FILED IN
                in the 390th District Court of      CcWOF CRIMINAL APPfai
                  Travis County, Texas and                   n__                 ^
                                                             0CJ2Z 2;;j
                 In the Third District Court
                    OfAppeals at Austin                  bel Acoste, Clerk

        PETITION FOR DISCRETIONARY REVIEW



                                   Submitted by:
                                   Andria M. Stanley
                                   ProSe
                                   T.D.C.JJ 01861816
                                   Mountain View Unit
                                   2305 Ransom Road
                                   Gatesville, Texas 76528

ORAL ARGUMENT REQUESTED
                            TABLE OF CONTENTS


Index of Authorities                                                          3-5


Statement Regarding Oral Argument                                              6

Statement of the Case                                                           6


Statement of Procedural History                                                 6

Reasons for Review                                                              7


Ground for Review One                                                       8-14

           The Court of Appeals erred in finding that the prejudicial and
           inflammatory evidence erroneously admitted by the trial court
           was harmless, of the Appellant's admission to Aggravated
           Assault on the complainant in an agreed protective order
           because Appellant's admission was obtained through
           Ineffective Assistance of Counsel.


Ground for Review Two                                                       15-17

           The Court of Appeals erred in holding that the Appellant was
           not harmed by a denial of a requested unanimity instruction on
           the Burglary of a Habitation charge because the general
           verdict led to a potential jeopardy violation between the
           burglary conviction and substantive offenses.

Prayer for Relief                                                              18

Certificate of Service                                                         19


Certificate of Compliance                                                      19

Appendix                                                                      20
                          INDEX OF AUTHORITIES



Constitutions:


U.S. Const, Amend. 5                                             11

U.S. Const, Amend. 6                                             14


Cases:


Almanzav. State, 686 S.W.2d 157 (Tex.Cr.App. 1984)               16

Arizona v. Fulminante, 499 U.S. 279 (1991)                       12

Arlinev. State, 721 S.W.2d 348 (Tex.Cr.App. 1986)                16

Ex parte Butler, 522 S.W.2d 196 (Tex. 1975)                      11

Ex parte Moody, 991 S.W.2d 856 (Tex.Cr.App. 1999)                13

Ex parte Sanchez, 703 S.W.2d 955 (Tex.1986)                      10

Ex parte Strickland, 724 S.W.2d 132 (Tex.App. - Eastland 1987)   10

Ex parte Welborn,7S5 S.W.2d391 (Tex.Cr.App. 1990)                11

Francis v. State, 36 S.W.3d 121 (Tex.Cr.App. 2000)               15

Frangias v. State, 450 S.W.3d 125 (Tex.Crim.App. 2013)           10

Goodspeed v. State, 187 S.W.3d (Tex.Crim.App. 2005)              10

Harris v. State, 790 S.W.2d 568 (Tex.Cr.App. 1989)               12

Hemmingwayv. State, 483 So.2d 1335 (Miss. 1986)                  12

Hill v. Lockhart, 474 U.S. 52 (1986)                             13
Hollowayv. State, 780 S.W.2d 787 (Tex.Cr.App. 1989)                      14

In re Butler, 45 S.W.3d 268 (Tex.App.-Houston [1st Dist] 2001)           10

In re Marks, 365 S.W.3d 843 (Tex.App.- Ft. Worth 2012)           ,       10

Kimmelman v. Morrison, 477 U.S. 365 (1986)                                8

Langs v. State, 183 S.W.3d 680 (Tex.Cr.App. 2006)                        16

LaPointv. State, 750 S.W.2d 180 (Tex.Cr.App. 1986)                       17

Maness v. Meyers, 419 U.S. 449 (1975)                                    11

Massiahv. United States, 311 U.S. 201 (1966)                             14

McCarthy v. Ardstein, 266 U.S. 34 (1924)                                 11

Morales v. State, 910 S.W.2d 642 (Tex.App. Beaumont 1995)                13

Murphy v. State, 44 S.W3d 656 (Tex.App.-Austin 2001)                     17

Navav. State, 415 S.W.3d 289 (Tex.Crim.App.2013)                          9

Rowland v. Herren, 03-07-00247-CV

      (Tex.App. -Austin 2-19-2010) (Unpublished)                         10

Snowden v. State, 353 S.W3d815 (Tex.Cr.App 2011)                         12

Strickland v. Washington, 466 U.S. 668(1986)                         8-9, 14

Texas Dep 't ofPublic Safety Officers Ass 'n v. Denton,

      897 S.W.2d 757 (Tex.1995)                                          11
Statutes, Codes and Rules:

Tex.Code Crim.Pro. 36.15         15


Tex.Penal Code § 30.02(a)(1)   15-16

Tex.Penal Code § 30.02(a)(3)   15-17

Tex.REvid. Rule 801(e)(2)         11

Tex.REvid. Rule 803(24)           11
                STATEMENT REGARDING ORAL ARGUMENT

   In the event this petition is granted, the Petitioner requests oral argument.
Argument would assist the court because this case presents novel issues this court
has not previously addressed, and the issues raised are issues of first impression
that could be better discussed in the context of oral argument.


                            STATEMENT OF THE CASE


   This case concerns a conviction of four felony offenses—two counts of family
violence aggravated assault, aggravated kidnapping, and burglary of a habitation,
in which Appellant's admission in an agreed protective order was obtained through
Ineffective Assistance of Counsel. It also concerns the issue of whether a charge
submitted to the jury allowing a conviction on less than an unanimous verdict
constitutes a violation of the Double Jeopardy Clause.


                   STATEMENT OF PROCEDURAL HISTORY

   (1) Date of opinion from Court ofAppeals:               July 30, 2015
   (2) Date of Motion for Rehearing:                       None was filed.
   (3) Date Motion for Rehearing Disposed:                 N/A
                         GROUNDS FOR REVIEW


1. The admission of an agreed protective order in which Appellant was
   persuaded by counsel to agree to findings that she had committed the acts for
   which she would eventually be prosecuted, resulted from Ineffective
   Assistance of Counsel at the contempt hearing. Because the lower courts
   refused to find any harm in the admission of the protective order, the
   conviction must be overturned.


2. The Court ofAppeals erred in finding that Appellant's requested unanimity
   instruction for the burglary charge led to double jeopardy violation between
   the burglary conviction and substantive offenses.
                                  ARGUMENT


1. The Court of Appeals erred in overruling Appellant's objection to the
   admission of the protective order on the basis of Ineffective Assistance of
   Counsel. Furthermore, erring in holding that the admission of the agreed
   protective order was harmless beyond a reasonable doubt.

      At Appellant's trial, the state offered a copy of an agreed protective order

from a family law proceeding involving Appellant and her ex-husband, which

contained a finding that Appellant caused "serious bodily injury to [Witt]."

Appellant objects to the admission of the protective order asserting that Appellant's

attorney had rendered ineffective assistance of counsel by advising her to agree to

the protective order—and the findings of family violence.

      The record before the Court of Appeals reflected a strategy which was

patently unreasonable because it was facially inconsistent—counseling Appellant

to admit to criminal conduct which would be the crux of a pending felony charge

in order to avoid discussion of "ancillary" matters—and clearly reflects counsel's

misunderstanding of precedent on the scope of the privilege against self-

incrimination. Was the challenged action sound strategy? There exists a reasonable

probability that, but for counsel's unprofessional errors, result of proceeding would

have been different. Kimmelman, All U.S. at 384, 106 S.Ct. 2574.

      In Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), the Supreme Court articulates a two-prong test to be used when

analyzing a claim of Ineffective Assistance of Counsel. To have a conviction
                                         8
reversed on the grounds of Ineffective Assistance of Counsel an Appellant must

show that:


         1) Counsels representation fell below an objective standard of
             reasonableness and
         2) The deficient performance prejudiced the appellant.

Is a deficiency in attorney performance not a general requirement that the

defendant affirmatively proves prejudice?

      The basic or significant part of Appellant's complaint is that counsel in her

family law contempt hearing was deficient for counseling her to agree, in essence,

to make a written admission of having committed aggravated assault as part of a

strategy in avoiding having to testify to extraneous and ancillary matters which

might have been admissible in a pending felony trial.

      The court states that the Appellant must first demonstrate that counsel's

performance fell below an "objective standard of reasonableness under prevailing

professional norms... " Strickland, 466 U.S. at 687-88; Nova, 415 S.W3d at 307.

Then, "that the result of the proceeding would have been different absent counsel's

deficient performance." Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at 308.

      There is no question under Strickland that Appellant had the right to the

effective assistance of counsel at her contempt hearing, even though it pertained to

a civil case. Texas law provides that because contempt proceedings in family law

involve the possibility of incarceration, the right to the assistance of counsel
extends to family law enforcement proceedings. See, Ex parte Sanchez, 703

S.W.2d 955, 957 (Tex. 1986); in re Marks, 365 S.W.3d 843, 845 (Tex.App. - Ft.

Worth 2012); in re Butler, 45 S.W.3d 268, 271 (Tex.App. - Houston [1st Dist.]

2001); exparte Strickland, 724 S.W2d 132, 133-134 (Tex.App. - Eastland, 1987);

and, Rowland v. Herren, 03-07-00247-CV (Tex.App. - Austin 2-19-2010)

(Unpublished).

      The Court of Appeals cites Frangias v. State, 450 S.W.3d 125,136

(Tex.Crim.App. 2013) ("[ITnless there is a record sufficient to demonstrate that

counsels conduct was not the product of an informed strategic or tactical decision,

a reviewing court should presume that trial counsel's performance was

constitutionally adequate unless the challenged conduct was so outrageous that no

competent attorney would have engaged in it.") (quoting Goodspeed, 187 S.W.3d

at 392). This case is distinct from those typical cases in which claim of ineffective

assistance of counsel is raised, and rejected, on direct appeal for lack of a sufficient

record. To the contrary, the record of attorney Trumpler's strategy was developed,

by the State, during the hearing outside the jury's presence. Trumpler's strategy is

unconvincing. First, it is disingenuous to label Trumpler's advice as "strategic".

Though claiming to be furthering his strategy of protecting appellant from an

impending charge of Aggravated Assault, Trumpler persuaded the appellant to sign

the protective order, which was admissible against her in the criminal trial as a


                                           10
statement against interest. Tex.R.Evid.Rule 803 (24), as well as a statement by a

party opponent, Rule 801 (e)(2). This created admissible evidence against her,

something that any attorney familiar with the Rules of Evidence would have

recognized. Trumpler's decision to elicit an admission from appellant might have

been "strategy" under a broad understanding of the term, but it could not be

considered sound or objectively reasonable.

      The Court of Appeals incorrectly argues against counsel's testimony

betraying a misunderstanding of the scope of the Fifth Amendment privilege. A

party in a civil proceeding unmistakably retains a Fifth Amendment privilege

against self-incrimination. Maness v. Meyers,419 U.S. 449, 464 (1975)      (Fifth

Amendment may be asserted in any proceeding, civil or criminal, administrative or

judicial); Texas Dep 't ofPublic Safety Officers Ass 'n v. Denton,

897 S.W.2d 757, 760 (Tex. 1995); and, ex parte Butler, 522 S.W.29 196, 198 (Tex.

1975). In civil cases, the privilege against self-incrimination may be asserted

"wherever the answer might tend to subject to criminal responsibility him who

gives it." McCarthy v. Ardstein, 266 U.S. 34, 40 (1924); Denton, 897 S.W2d at

760. If Trumpler were unaware of appellant's continuing Fifth Amendment

privilege even to ancillary incriminating matters, then his strategy was executed

without a sufficient understanding of the law. Ex parte Welborn, 785 S.W2d 391,

393 (Tex.Cr.App. 1990).


                                          11
      The Court of Appeals incorrectly finds that the error is harmless. In

considering the potential prejudice, the court must consider a wide array of factors,

including the "nature of the error ... the probable implications of the error, and the

weight of the jury would have likely assigned to it in the course of its

deliberations." Snowden. The "appellate court should not determine the

harmfulness of an error simply by examining whether there exists overwhelming

evidence to support the defendant's guilt." Harris, 990 S.W2d 568, 587; see also

Snowden 353 S. W.3d at 819 (discussing Harris).

      The Court of Appeals fails to acknowledge that the admission into evidence

of appellant's admission to assaulting the complainant plainly had a prejudicial

influence upon the jury simply by nature of the error. "[A] confession is like no

other evidence." Arizona v. Fulminante, 499 U.S. 279, 296 (1991). As one State

appellate court has dryly noted, "Confessions tend to have an adverse effect on

defendants in criminal prosecutions." Hemmingway v. State, 483 So.2d 1335, 1336

(Miss. 1986) (emphasis added).

      The Court of Appeals wrongly speculated that "counsels advice at the

protective order hearing was the product of an informed and strategic and tactical

decision which appellant agreed with and followed at the time but later criticized in

a self-serving attempt to exclude her admission. The lower court is trying to be

convincing that the appellant voluntarily and knowingly agreed knowing the harm

                                          12
of such an admissible document.


      The circumstances are closest by analogy to claims in which deficient

representation induces a defendant to waive the right to trial and plead guilty. See

and compare, Hill v. Lockhart, 474 U.S. 52, 58-59 (1986); and, Ex parte Moody,

991 S.W.2d 856, 858 (Tex.Cr.App. 1999). Under this type of ineffectiveness claim,

the prejudice inquiry is whether there is a reasonable probability that the defendant

would not have waived the right in the absence of counsel's recommendation.

Moody, 991 S.W2d at 858. Where a guilty plea based upon erroneous advice of

counsel is not made "voluntarily and knowingly". Morales v. State, 910 S.W2d

642 (Tex.App. Beaumont 1995).

      The introduction of appellant's admission likely had a destructive influence

on the jury because it directly conflicted with her defensive theory at trial, that she

had met with her husband at his home to discuss the custody dispute over their

children, Witt became violent and a struggle ensued, during which both were

injured before appellant could escape to seek medical attention. Appellant

contested and disputed Witt's version of events, which were a fabrication for his

own assault upon her in which Witt beat her so severely that the metal of the

revolver had twisted. Witt's version of events left considerable room for the jury to

have doubted his veracity, including but not limited to the vast discrepancy

between Witt (6'1") and appellant (5'4", 120 lbs), and Witt's super-human ability

                                          13
to break free of his multiple claims of bindings (zip ties, sheets, blankets, and

plastic wrap).

      In respect to the Court of Appeals, the issue before the court is novel, of an

issue with no found precedent in which a comparable situation is addressed.

Where, as a result of counsels deficient advice in a different proceeding, a

defendant provides an inculpatory statement subsequently used against her at trial

on the merits. Granting this petition could assist in an issue of importance to the

jurisprudence of the State. Appellant would suggest that a full analysis under

Strickland would be inappropriate because Strickland addresses counsel's

representation throughout the entirety of the trial proceedings. Here, Trumpler did

not represent appellant in her full trial proceedings, but only in a proceeding which

resulted in the production of harmful evidence.

      The prejudice from admitting a statement obtained in violation of the right to

counsel implicates the Sixth Amendment in a non-Strickland context. See e.g.,

Massiah v. United States, 311 U.S. 201 (1966); and, Holloway v. State, 780 S.W.2d

787 (Tex.Cr.App. 1989).

      This court should conclude that the Court ofAppeals erred in finding that the

admittance of the order was harmless.




                                         14
2. The denial of a requested Unanimity Instruction for the Burglary charge
   led to a potential jeopardy violation.

       An objection on the lack of an unanimity instruction on the Burglary

instruction was sufficient to preserve the issue for appellate review. See Francis v.

State, 36 S.W3d 121, 123 (Tex.Cr.App. 2000) (quoting Art. 36.15 that the defense

need only call the court's attention to the omission from the charge and that "no

other exception or objection to the court's charge shall be necessary to preserve

error ...")

       In this case, the appellant was charged with four counts of a Burglary of a

Habitation.1      Appellant requested unanimity instructions on one or more of the

charges, which was denied.

The general verdict form permitted the jury to retain a non-unanimous verdict on

the Burglary based on either Tex. Penal Code §30.02 (a)(1) or §30.02 (a)(3).2
Under the circumstances at Appellant's trial, the lack of unanimity between


1   Counts 1 and 2 alleged Appellant entered the complainant's home with the intent to commit
      the felony offenses of Aggravated Assault or Kidnapping and,
    Counts 3 and 4 alleged Appellant entered the complainant's home and therein formed the
      Intent to commit,Aggravated Assault or Kidnapping.

2   The statute provides in pertinent part:
       (a) A person commits an offense if, without the effective consent of the owner, the
          person:
          (1) enters a habitation, or a building (or any portion of a building) not then open to
              the public, with intent to commit a felony, theft, or an assault; or

          (3) enters a building or habitation and commits or attempts to commit a felony, theft,
               or assault.
Tex. Penal Code §30.02 (a)(1) & (a)(3)
                                                15
§ (a)(1) and § (a)(3), coupled with the jury charges on the substantive offenses

comprising the Burglary, opened the possibility that the jury's verdict violated

Appellant's right against Double Jeopardy.

      This court has held that a defendant may not be convicted of both Burglary,

under §30.02 (a)(3) and the substantive felony underlying the Burglary. Langs v.

State, 183 S.W.3d 680, 686 (Tex.Cr.App. 2006). This is because the underlying

felony is a lesser-included offense to the Burglary and conviction on both

implicates the constitutional prohibition against punishing a defendant for greater

and lesser offenses. Ibid. By contrast, under §30.02 (a)(1), the Burglary and the

underlying substantive felony are two distinct offenses. Ibid.

      The Court of Appeals rejected the claim of harm by the denial of Appellant's

jury unanimity instruction, stating that the "trial record must demonstrate that there

is some actual harm and not just a theoretical complaint." However, Appellant

objected to the omission instruction in the jury charge in a timely manner,

subjecting the harm analysis to the standard set out in Almanza v. State, 686

S.W.2d 157 (Tex.Cr.App. 1984); and, Arline v. State, 721 S.W.2d 348 (Tex.

Cr.App. 1986). "If the error in the charge was the subject of a timely objection in

the trial court, then reversal is required if the error is 'calculated to injure the rights

of the defendant,' which means no more than that there must be some harm to the

accused from the error." Almanza, 686 S.W.2d at 171. Some harm equates to "any


                                            16
harm" regardless of degree. LaPoint v. State, 750 S.W2d 180, 191 (Tex.Cr.App.

1986); and, Murphy v. State, 44 S:W.3d 656, 666 (Tex.App.- Austin 2001).

      The general verdict form for the Burglary charge permitted the jury to

convict Appellant for both the Burglary under § (a)(3), as well as the underlying

Aggravated Assault on which the Burglary was based. Appellant has experienced

some harm from the trial court's omission of the unanimity instruction for the

Burglary charge.

      Because the jury charge in this case did not include the requested unanimity

instruction, Appellant experienced harm and the courts failure to correct that error

was another egregious error, requiring reversal.




                                         17
                            PRAYER FOR RELIEF


   Appellant prays that this court grant her petition for discretionary review and
upon reviewing the judgment below, reverse this cause and dismiss the prosecution
or remand for new trial.



                                             Submitted by:



                                             Andria M. Stanley
                                             Pro Se
                                             T.D.C.JJ 01861816
                                             Mountain View Unit
                                             2305 Ransom Road
                                             Gatesville, Texas 76528




                           UNSWORN DECLARATION


   I, Andria Marie Stanley, being presently incarcerated in the Department of
Criminal Justice. Mountain View Unit, do hereby declare under penalty of perjury
the foregoing brief to be true and correct and executed this date of
October 20, 2015.



                                             Submitted by:



                                             Andria M. Stanley
                                             Pro Se
                                             T.D.C.J.# 01861816
                                             Mountain View Unit
                                             2305 Ransom Road
                                             Gatesville, Texas 76528




                                        18
                         CERTIFICATE OF SERVICE


   I hereby certify that on October 20, 2015, a copy of the foregoing Petition for
Discretionary Review was served on the following by certified mail, return receipt
requested:

   Rosemary Lehmberg
   Travis County District Attorney's Office
   509 W 11th Street
   Austin, Texas 78701

   State Prosecuting Attorney
   P.O. Box 13406
   Austin, Texas 78711




                                              Andria M. Stanley




                         CERTIFICATE OF COMPLIANCE


   I hereby certify that this petition conforms to the requirements of TRAP 9, and
consists of 2,213 words per TRAP 9.4 (i)(2)(D).



                                              Andria M. Stanley




                                        19
                                    IN THE
                          COURT OF CRIMINAL APPEALS
                                  OF TEXAS



  ANDRIA MARIE STANLEY
             Petitioner



             vs.                             Nos. PD-1017-15, PD-1018-15,
                                             PD-1019-15


  THE STATE OF TEXAS
             Respondent



                                APPENDIX-
         PETITION FOR DISCRETIONARY REVIEW



INDEX:

1-23   Court of Appeals Opinion dated July 30, 2015 and Judgment




                                      20
  Petitions for Discretionary Review




         LISA C. McMINN
           P.O. Box 13046
           Capitol Station
        Austin, Texas 78711




         State Bar of Texas
ADVANCED CRIMINAL LAW COURSE
          July 22-25, 2013
            Dallas, Texas




           CHAPTER
Lisa C. McMinn has been the State Prosecuting Attorney since December 6, 2010. She first
joined the office as an assistant in October of 2005. From 1992 to 2005, Lisa worked as a staff
attorney for the Court of Criminal Appeals. She began her career at the Tarrant County District
Attorney's office, where she served from 1988-1992, as an assistant district attorney in both the
misdemeanor and appellate sections.

 Lisa graduated from Baylor University in 1984, with a B.A. in Political Science. In 1987, she
received her J.D. from Baylor Law School.
Lisa is Board Certified in Criminal Appellate Law and is a regular lecturer on criminal appellate
law topics at CLE programs around the state. She is a member of the Texas District and County
Attorneys Association.
Petitions for Discretionary Review                    pursuant to Degrate v. State, 712 S.W.2d
                                                      755 (Tex. Crim. App. 1986), because they
Drafting a good petition for discretionary            fail to address the court of appeals' opinion.
review (PDR) involves more than just                  Approximately 60 of the 100 PDRs filed are
repackaging your brief in the court of                "frivved" on the merits, which means the
appeals. A PDR has a different purpose, is            issues raised are deemed so non-meritorious
addressed to a different audience, and is             by central staff that they do not require a
governed bydifferent rules.' Understanding            "workup" by a staff attorney. The judges
these differences will greatly increase the           can ask for a workup on a PDR that has been
odds that your PDR will be considered on its          frivved, but if no workup is requested, the
merits and granted.                                   PDR is summarily refused. Out of the
                                                      original 100 PDRs filed, only 15 survive the
I. Process                                            screening process and get a full workup by a
                                                      staff attorney. Of those 15 PDRs worked up,
Upon filing in the Court of Criminal                  5-7 are typically granted.
Appeals, PDRs are screened for compliance
with the rules of appellate procedure,                A workup is generally 3-5 pages long. It
reviewed by staff attorneys, and voted on by          consists of a summary the facts, court of
the judges. The Court's disposition of those          appeals holding, and arguments in the
petitions is published on Wednesdays                  petition; a discussion of the applicable law;
throughout the year when the Court is in              and a recommended disposition of the PDR.
session.                                              The workup is attached to the PDR and
                                                      circulated to the judges. Prior to Monday
The Court of Criminal Appeals disposed of             conference, the judges take a preliminary
1,520 PDRs in fiscal year 2012. Of those,             vote on the PDRs that are "called up" for
104 were granted, 1,219 were refused, 142             that week. In addition to the vote to grant or
were struck for non-compliance, and 46                refuse, the judges can request discussion of a
were dismissed as untimely filed.                     particular case. Central staff attends
                                                      conference to answer any questions about
Anecdotal evidence from the Court shows               the cases that have been marked for
that for every 100 PDRs that are timely               discussion. After discussion of a case, a
filed, 25 are "non-compliant." Of those 25,           revote may be taken in conference. If a case
approximately 14 do not comply with the               is not discussed, it is disposed of based on
Rules of Appellate Procedure and are struck.          the pre-conference vote tally. It takes at least
Most of the stricken PDRs have an                     four votes to grant a PDR.
insufficient number of copies or fail to
attach a copy or a complete copy of the               II. Rules
court of appeals' opinion. The other 11 of
the non-compliant PDRs are refused                    The Rules of Appellate Procedure are
                                                      sometimes changed with very little notice to
                                                      practitioners. For the most up-to-date
 All references to the rules are the Texas Rules of
Appellate Procedure.
2http://www.txcourts.gov/pubs/AR2012/cca/2-cca-
activitv.pdf
version of the Rules, consult the Supreme             Court of Criminal Appeals to file a reply to
Court's website.3                                     the petition with the clerk of the Court of
                                                      Criminal Appeals.
The Rules of Appellate Procedure for briefs
and PDRs are different, especially with               Where to file:
regard to deadlines, word or page limits,
contents, and motions for rehearing. The              Rule 68.3
Rules listed below for the most part apply
only to PDRs. However, some rules that                (a) The petition and all copies of the petition
apply to both PDRs and briefs are included.           must be filed with the clerk of the Court of
                                                      Criminal Appeals.
When to File:                                         (b) Petition Filed in Court of Appeals. —If a
                                                      petition is mistakenly filed in the court of
Rule 68.2                                             appeals, the petition is deemed to have been
                                                      filed the same day with the clerk of the
(a) First petition. The petition must be filed        Court of Criminal Appeals, and the court of
within 30 days after either the day the court         appeals clerk must immediately send the
of appeals' judgment was rendered or the              petition to the clerk of the Court of Criminal
day the last timely motion for rehearing or           Appeals.
timely motion for en banc reconsideration
was overruled by the court of appeals.                Contents:
(b) Subsequentpetition. Even if the time
specified in (a) has expired, a party who             Rule 68.4
otherwise may file a petition may do so
within 10 days after the timely filing of             (a) Table ofcontents. The petition must
another party's petition.                             include a table of contents with references to
(c) Extension oftime. The Court of                    the pages of the petition. The table of
Criminal Appeals may extend the time to               contents must indicate the subject matter of
file a petition for discretionary review if a         each ground or question presented for
party files a motion complying with Rule              review.
10.5 (b) no later than 15 days after the last         (b) Index ofAuthorities. The petition must
day for filing the petition. '                        include an index of authorities arranged
                                                      alphabetically and indicating the pages of
*Even if you miss the deadline and your               the petition where the authorities are cited.
PDR is dismissed as untimely filed, you can           (c) Statement regarding oral argument. The
file a motion for rehearing under Rule 79.1,          petition must include a short statement of
requesting that the PDR be reinstated.                why oral argument would be helpful, or a
                                                      statement that oral argument is waived. If a
Rule 68.9                                             reply or cross-petition is filed, it likewise
                                                      must include a statement of why oral
Reply. The opposing party has 15 days                 argument should or should not be heard..
after the timely filing of the petition in the
                                                         The statement about why argument
                                                         would be helpful doesn't need to be too
http://www.supreme.courts.state.tx.us/rules/TRAP/tr
                                                         long or involved. One or two sentences
ap-all.htm#slr9
                                                         are sufficient. Example: "Because this
    case presents novel issues this Court has   the motion for rehearing was
    not previously addressed, oral argument     overruled or otherwise disposed of.
    would be helpful." More than likely, the
    judges will grant or deny argument               ♦Example: On January 1,2010,
    based on their own views about whether          the court of appeals reversed the
    argument would be helpful, not on the           conviction. Jones v. State,
    wording of your statement.                      _S.W.3d_No. 02-10-0001-
                                                    CR (Tex. App. -Fort Worth,
(d) Statement ofthe case. The petition must         delivered January 1, 2010). The
state briefly the nature of the case. This          State's motion for rehearing was
statement should seldom exceed half a page.         filed on January 13, 2010, and
The details of the case should be reserved          overruled on January 28, 2010.
and stated, with the pertinent grounds or
questions.                                      (f) Groundsfor review. The petition must
                                                state briefly, without argument, the grounds
    *The statement of the case                  on which the petition is based. The grounds
    provides the Court with the                 must be separately numbered. If the party
    context in which your issue                 has access to the record, the petitioner must
    arose; very few facts are                   (after each ground) refer to the page of the
    necessary at this point.                    record where the matter complained of is
    Example: Appellant was                      found. Instead of listing grounds for review,
    indicted for murder. At trial, the          the petition may contain the questions
    State sought a lesser- included-            presented for review, expressed in the terms
    offense instruction for criminal            and circumstances of the case but without
   conspiracy, which was granted                unnecessary detail. The statement of
   over Appellant's objection. The              questions should be short and concise, not
   jury convicted Appellant of                  argumentative or repetitious.
   conspiracy and assessed his                  (g) Argument. The petition must contain a
   punishment at 10 years. The                  direct and concise argument, with
   court of appeals affirmed the                supporting authorities, amplifying the
   conviction, holding that                     reasons for granting review. See Rule 66.
   conspiracy to commit murder is a             The court of appeals' opinions will be
    lesser-included offense of murder           considered with the petition, and statements
   and was properly submitted.                  in those opinions need not be repeated if
   This petition challenges that                counsel accepts them as correct.
   holding.                                     (h) Prayer for relief. The petition must state
                                                clearly the nature of the relief sought,
(e) Statement ofprocedural history.             (i) Appendix. The petition must contain a
The petition must state: (1) the date           copy of any opinion of the court of appeals.
any opinion of the court of appeals
was handed down, or the date of any                *Attach the entire opinion, including
order of the court of appeals                      concurring or dissenting opinions. An
disposing of the case without an                   incomplete copy of an opinion is not in
opinion; (2) the date any motion for               compliance, even if it is only missing
rehearing was filed (or a statement                one page. Many courts of appeals print
that none was filed); and (3) the date             their opinions on both sides of the page.
   If you put the opinion in the copier and      counsel, statement regarding oral
   forget to set it to "two-sided original"      argument, table of contents, index of
   you will get a copy with only odd-            authorities, statement of the case,
   numbered page and your petition will          statement of issues presented, statement of
   not be in compliance with the rules.          jurisdiction, statement of procedural
                                                 history, signature, proof of service,
Form:                                            certification, certificate of compliance, and
                                                 appendix.
Rule 9.4                                         (2) Maximum Length. The documents
                                                 listed below must not exceed the following
Except for the record, a document filed with     limits:
an appellate court must —unless the court          (A)-(C) omitted.
accepts another form in the interest of            (D) A ... petition for discretionary
justice ~ be in the following form:                review and response in the Court of
(a) Printing. A document may be produced           Criminal Appeals, and a motion for
by standard typographic printing or by any         rehearing and response in an appellate
duplicating process that produces a distinct       court: 4,500 words if computer-
black image. Printing may be on both sides         generated, and 15 pages if not.
of the paper.                                      (E) A ... reply to a response to a petition
(b) Paper Type and Size. The paper on              for discretionary review in the Court of
which the document is produced must be             Criminal Appeals: 2,400 words if
white or nearly white, and opaque. Paper           computer-generated, and 8 pages if not.
must be 8 1/2 by 11 inches.
(c) Margins. Papers must have at least one       (3) Certificate of Compliance. A
inch margins on both sides and at the top        computer-generated document must
and bottom.                                      include a certificate by counsel or an
(d) Spacing. Text must be double spaced,         unrepresented party stating the number of
but footnotes, block quotations, short lists,    words in the document. The person
and issues or points of error may be single      certifying may rely on the word count of
spaced.                                          the computer program used to prepare the
(e) Typeface. A document produced on a           document.
computer must be printed in a conventional       (4) Extensions. A court may, on motion,
typeface no smaller than 14-point except for     permit a document that exceeds the
footnotes, which must be no smaller than         prescribed limit.
12-point. A typewritten document must be
printed in standard 10-character-per-inch       Number of copies:
(cpi) monospaced typeface.
(f)-(h) omitted                                 Rule 9.3
(i) Length.
                                                (a) omitted
 (1) Contents Included and Excluded. In         (b)(1) Paper Copies of Document Filed in
 calculating the length of a document,          Paper Form. A party must file the original
 every word and every part of the               and 11 copies of any document addressed to
 document, including headings, footnotes,       ... the Court of Criminal Appeals ... and
 and quotations, must be counted except the     in the Court of Criminal Appeals, only the
 following: caption, identity of parties and    original must be filed of a motion for
extension of time or a response to the
motion....                                             *Under Rule 9.2(b), the mailbox rule
                                                       applies only to documents delivered to
Who to serve:                                          the U.S. Postal Service. Castillo v.
                                                       State, 369 S.W.3d 196, 197 (Tex. Crim.
Rule 68.11                                             App. 2012).

In addition to the service required by Rule        III. Audience and Purpose
9.5, service of the petition, the reply, and
any amendment or supplementation of a              The PDR has a different audience and serves
petition or reply must be made on the State        a different purpose than the brief in the court
Prosecuting Attorney.4 .                           of appeals.

How to file                                        In the court of appeals


Rule 9.2                                           The court of appeals is required to write an
                                                   opinion addressing every issue raised and
(a) omitted                                        necessary to the disposition of the appeal.
(b) Filing byMail.5                                Rule 47.1. It has no choice in the matter.
  (1) Timely Filing. A document received           Even if your brief is badly written, the court
  within ten days after the filing deadline is     of appeals must still address it. Your
  considered timely filed if:                      purpose in writing the brief is to set out the
    (A) it was sent to the proper clerk by         facts, standard of review, and substantive
    United States Postal Service first class,      law, and persuade the judges to rule in your
    express, registered, or certified mail;        favor.
    (B) it was placed in an envelope or                                     l
    wrapper properly addressed and                 Many court of appeals justices have
    stamped; and                                   backgrounds in civil law. Long-serving
    (C) it was deposited in the mail on or         justices on the court of appeals will be better
    before the last day for filing.                versed in criminal law than those more
  (2) Proof of Mailing. Though it may              recently elected.
  consider other proof, the appellate court
  will accept the following as conclusive          In the Court of Criminal Appeals
  proof of the date of mailing:
    (A) a legible postmark affixed by the          The members of the Court of Criminal
    United States Postal Service;                  Appeals are called judges, not justices. The
    (B) a receipt for registered or certified      judges on the Court of Criminal Appeals are
    mail if the receipt is endorsed by the         all former criminal defense attorneys,
    United States Postal Service; or               prosecutors or district judges. They are well
    (C) a certificate of mailing by the United     versed in criminal law. It is not necessary to
    States Postal Service.                         set out the standard of review or applicable
                                                   law at great length in a PDR. Judges and
                                                   staff attorneys are likely to skip long
4P.O. Box 13046, Capitol Station, Austin, Texas,   boilerplate paragraphs setting out the
78711.
                                                   standard of review.
5The Court ofCriminal Appeals does not currently
accept electronic filing of PDRs.
The Court of Criminal Appeals is a                  or has sanctioned such a departure by a
discretionary review court that can cherry          lower court as to call for an exercise of the
pick the cases and issues it will address.          Court of Criminal Appeals' power of
The judges can refuse your petition for any         supervision.
reason. The refusal of a PDR does not
necessarily mean the Court agrees with the          This is not an exclusive list. For example,
opinion below. Your purpose in filing the           sometimes the Court grants review to
PDR is to convince the Court that your issue        reconsider its own precedent. These reasons
is interesting enough or important enough to        illustrate the types of issues the Court is
examine more closely and perhaps                    concerned with. In a nutshell, the Court is
reconsider the law.                                 looking for issues that are important to the
                                                    jurisprudence of the State. The Court's
Judge Cochran's concurring opinion in               primary role is not to correct every mistake
Bradley v. State, 235 S.W.3d 808                    made by the courts of appeals. As the court
(Tex.Crim.App. 2007) explains,                      of last resort, its role is to be the caretaker of
"Converting a direct appeal claim into a            Texas criminal law. As a result, it is more
discretionary review ground entails                 interested in legal issues than factual issues.
considerably more time, effort, and analysis        The Court is less concerned that there may
than a minor tinkering with the original            have been an injustice in a particular case
direct appeal brief. 'Instead, it involves a        than that the opinion could set bad precedent
change of character, a recognition that this        or create a conflict in the law. The Court is
Court wants to know why we should, as a             not likely to grant review just because a
matter of sound discretion, expend our              court of appeals "got it wrong" in one case.
scarce judicial resources to review the court       On the other hand, if more than one court of
of appeals' reasoning about a particular legal      appeals has gotten it wrong, if a court of
issue.'"                                            appeals keeps getting it wrong, or if a court
                                                    of appeals got it really, really wrong, the
Rule 66.3, provides the reasons the Court of        Court of Criminal Appeals may decide to
Criminal Appeals will consider in deciding          correct the problem.
whether to grant review: (a) the court of
appeals' opinion conflicts with an opinion          Familiarize yourself with the issues
from another court of appeals; (b) the court        currently pending before the Court of
of appeals has decided an important question        Criminal Appeals. The Court includes a
of state or federal law that should be settled      listing of all the granted PDRs and grounds
by the Court of Criminal Appeals, (c) the           for review. The issues are updated after
court of appeals has decided an important           each PDR hand down. They are listed
question of state or federal law in a way that      chronologically and alphabetically. The
conflicts with an opinion of the Court of           State Prosecuting Attorney's website
Criminal Appeals or the Supreme Court; (d)          provides summaries of the issues raised in
the court of appeals has declared                   all granted, pending PDRs. They are listed
unconstitutional or has misinterpreted a            in alphabetical order.7
statute, rule, or regulation; (e) the justices of
the court of appeals have disagreed on a
material issue; or (f) the court of appeals'
opinion has so far departed from the usual
                                                    6http://www.cca.courts.state.tx.us/issues/ISSUES.pdf
and accepted course ofjudicial proceedings          7http://www.spa.state.tx.us/
If your issue is similar to one that has been      Sometimes a single issue includes sub-
granted, point out the similarity to the Court.    issues, especially when the court of appeals
Even if your issue is not exactly the same, it     has alternative holdings. Because the
may be analogous to one already granted.           Court's first impression of multi-ground
The Court likes to examine different facets        PDR may be unfavorable, it might be wise
of the same issue.                                 to present a broad ground for review with
                                                   subheadings within the body of the
The Court generally prefers to address legal       argument-
issues such as the proper standard of review,
statutory construction, search and seizure,        Legal issues
lesser-included offense issues, jeopardy
issues, jury unanimity issues, and jury            A petition arguing that the court of appeals
charge issues.                                     erred under the facts of a particular case in
                                                   an unpublished opinion is not likely to be
IV. Drafting                                       granted. The PDR should demonstrate that
                                                   the issue is not limited to the facts of that
Because of their different purpose, PDRs are       case alone but has potential to affect other
written differently than briefs filed in the       cajgs^ Sufficiency of the evidence and
court of appeals. When filing a PDR, focus         search and seizure are often fact intensive
on the following:                                  issues. If you have a sufficiency issue,
                                                   emphasize the statutory construction aspect
Narrowing the issues                               of the case. If you have a search and seizure
                                                   issue, argue that the court of appeals applied
A defendant who is convicted and appeals           the wrong standard of review or that this
the denial of a challenge for cause, the           holding will have broad application.
admissibility of the confession, sufficiency
of the evidence, hearsay, jury charge error,       Deerate
and the constitutionality of the statute should
not raise all of those issues in a PDR. The        A PDR should address error in the court of
kitchen sink method is not effective. Judge        appeals' opinion, not error in the trial court.
Cochran illustrates this point, stating, "I look   Degrate v. State, 712 S.W.2d 755 (Tex.
upon one or two well-crafted grounds for           Crim. App. 1986). Don't argue that the trial
review more favorably as it is most unusual        court erred by granting the defendant's
that a court of appeals might be seriously         motion to suppress. Point out the error in
wrong on numerous different issues of              the court of appeals' opinion affirming the
statewide importance." King v. State, 125          trial court's granting of the motion to
S.W.3d 517, 518 n4 (Tex.Crim.App.                  suppress. A PDR arguing that the court of
2003)(Cochran, J., concurring).                    appeals erred by holding that the trial court
                                                   did not err is in danger of being "Degrated."
"Scattershot argument is ineffective. It           The petition must address the court of
gives the impression of weakness and               appeals' analysis by arguing that it
desperation, and it insults the intelligence of    misapplied precedent, misconstrued a
the court." —Scalia and Garner, Making             statute, applied the wrong, standard.of
Your Case                                          review, conflicts with an opinion from
                                                   another court of appeals, etc.
About 10-12 % of all the non-compliant                 defendant's arrest after a traffic stop, the
PDRs are refused because of Degrate.                   main issue in the trial court may have
Those petitions are refused-not dismissed or           centered on whether the defendant was
struck-so the attorney doesn't know the                required to use a turn signal at a particular
reason the petition was refused and has no             intersection. But the court of appeals may
opportunity to correct the error. Some                 hold that even if the stop was improper, the
attorneys are routinely "Degrated," because            taint from the illegal stop was attenuated,
they keep making the same mistake over and             rendering the confession admissible. The
over again. Some actually cut and paste                issue on PDR will be the attenuation
their entire argument from the brief and re            doctrine, not the turn signal issue.
label it a PDR.
                                                       Even if the issue is roughly the same in the
In King v. State, 125 S.W.3d 517 (Tex.                 trial court, court of appeals, and Court of
Crim. App. 2003), Judge Cochran's                      Criminal Appeals, nuances in issues emerge
concurring opinion discusses a PDR that                as the case moves up the appellate ladder.
was presumably "Degrated." The Court of                Issues become more focused and complex in
Appeals affirmed the trial court's ruling for          the Court of Criminal Appeals.
a reason not explicitly relied on by the trial
judge. Judge Cochran points out how the                For the most part, issues cannot be presented
ground for review and the accompanying                 in the PDR that were not raised in the court
argument provided no clue about the court              of appeals because the Court of Criminal
of appeals analysis. All of the argument was           Appeals only addresses "decisions" of the
focused on the trial judge's ruling. Judge             courts of appeals. But there are exceptions
Cochran proposed a viable argument the                 to the rule. The first is preservation of error.
appellant could have made about the court              Preservation of error is a systemic
of appeals' analysis that involved statutory           requirement that the court of appeals should
construction. There was a good issue in the            address on appeal, even if the issue was not
case, but the appellant didn't recognize or            raised by the State. Ford v. State, 305
know how to present it.                                S.W.3d 530, 532-33 (Tex. Crim. App.
                                                       2009). If the court of appeals did not
Evolving issues                                        address preservation, the Court of Criminal
                                                       Appeals can do so if the State's PDR raises
Judge Cochran's concurring opinion in King             the issue. Ibid. "The State's failure to raise
illustrates why parties should not be too wed          preservation to the court of appeals is no
to the exact formulation of the issue raised           longer a bar to it raising it for the first time
in the court of appeals. As pointed out                in this court in a petition for discretionary
above, you must discuss the court of                   review." Wilson v. State, 311 S.W.3d452,
appeals' holding, not the trial court's ruling.        474 (Tex. Crim. App. 2010).
Sometimes the sole issue in the PDR is the
standard of review the court of appeals                The second exception is that the winning
appHecTto the trial court's ruling.                    party in the trial court need not argue issues
Sometimes the issue the court of appeals               in the court of appeals that would uphold the
found dispositive may not have received                trial court's ruling. "A trial court's ruling
much attention in the trial court. For                 should be affirmed if it is right for any
example, if the trial court denies a motion to         reason. De La Paz v. State, 279 S.W.3d
suppress a confession resulting from the               336, 344 (Tex. Crim. App. 2009). The
                                                  10
State's failure to raise an issue in the court of        Criminal Appeals from addressing it on
appeals does not prevent the Court of                    discretionary review if the State prevailed in
the trial court. Volosen v. State, 227 S.W.3d            Grounds (or questions) for review
77, 80 (Tex. Crim. App.2007). "Regardless
of whether an appellee files a brief, a first-           In the court of appeals, it doesn't matter how
level appellate court has the obligation to              you word your point of error because the
conduct a thorough review of an appellant's              court of appeals is required to address it.
claims, including any subsidiary issues that             But in the Court of Criminal Appeals, the
might result in upholding the trial court's              wording of the ground for review is your
judgment." Ibid. This doesn't mean the                   first opportunity to make a good (or bad)
Court of Criminal Appeals will grant such                impression. Sometimes it's helpful to write
issues, but it has the authority to do so.               the ground for review aftgr_you have
                                                         completed the argument portion of the PDR.
Both the preservation rule and the
"prevailing party" rule will usually benefit             Don't make the ground for review too long,
the State because the State is usually the               too argumentative, or too fulToTTacts'but
appellee. But defendants can rely on Ford                make it specific enough so the reader has an
and Volosen in State's appeals where the                 idea of what the issue is.
defendant is the prevailing party.

It is not always necessary to say, "The court            "Should the trial court's failure to execute a
of appeals erred by holding...." Those are               certification of right to appeal after entry of
wasted words that do not focus on the issue.             an appealable judgment result in Petitioner
Although the argument portion of your PDR                being denied his right of appeal where he
must discuss what the_court of appeals did               was convicted by a jury upon a plea of not
wrong in its analysis, your ground for                   guilty."
review can merely state the issue involved
withoutrunning afoul of Degrate. The                     "Did the Legislature intend to allow separate
following are examples of well-worded                    punishments for indecency with a child by
grounds for review that were recently                    both exposure and contact committed
granted:                                                 against the same victim when the exposure
                                                         precedes the contact?"
"In order to preserve error relative to a
limitation on voir dire examination of a                 Brevity
prospective juror, must a defendant object
after the trial court sustains the State's               "Tediousness is the most fatal of all faults."
objection to a proposed question?"                       -Samuel Johnson.


 "May a non-aggravated state jail felony                 The Court of Criminal Appeals disposes of
conviction, previously punished under the                thousands of cases every year. Judges and
range for a second degree felony, be used                staff attorneys read all day long. Their
for purpose of enhancing punishment to that              attention span is short. Grab their attention
of a habitual criminal under TEX. PEN.                   quickly and don't make them pay attention
CODE § 12.42(d)?"                                        for too long.



                                                    11
Unless your PDR has multiple grounds and/               Quotes
or complex issues, it should not get close to
the word count limit. If you have a single              Long block quotes should be avoided. A big
issue with 4500 words of argument, you are              single-spaced, double-indented quote is a lot
likely repeating yourself, over-complicating            of concentrated ink in one area. The
the issue, or including too many unnecessary            temptation is to skim it or skip over it.
 facts or too much law.                                 Paraphrase or cut the quote down to size by
                                                        eliminating the parts that aren't important to
' Outlining before you begin writing helps to           your case. If you need to put the quote in
  narrow the issue and organize your                    context, paraphrase that part and include
  argument. An outline prevents you from                only the best part of the quote. Or break up
  skipping around or writing in a disjointed,           long quotes into smaller chunks.
  'stream of consciousness" style, and it
-prevents repetition.                                   Getting to the point

A brief in the court of appeals usually has a           "If you start with a bang, you won't end
lengthy statement of facts, setting out all the         with a whimper." -T.S. Eliot
pertinent facts in the case. The PDR rules
don't even require a statement of facts and             "Don't bury the lede."
suggest that the "details of the case" be
included in the argument. Rule 68.4 (d).                Journalism professor, Tony Rogers, asks the
Set out the facts that relate to the issue              students in his classes to write a newspaper
you're raising, but don't include                       account of a doctor giving a speech to a
unnecessary or irrelevant facts. If your                business group about fad diets and physical
petition is limited to whether the State's              fitness. Midway through the speech, the
notice of appeal was adequate, you don't                doctor collapses from a heart attack and dies
need to recite the facts of the offense itself.         on the way to the hospital. Invariably,
A petition with several pages of facts gives            Rogers says, some of his students will begin
the impression that that issue is limited to its        the story with "Dr. Wiley Perkins gave a
facts and is less likely to be granted.                 speech to a group of business people
                                                        yesterday about the problems with fad
Don't include details that are unnecessary,             diets." The story of course, is not about the
such as the date of arraignment, what district          speech, but about the doctor's death.
court the case was tried in, and the judge
who presided. Also, don't name all the                  It is easier to write the opening to a news
parties and witnesses unless necessary.                 story than a PDR because a news story is
When the reader sees a name or date, he                 only reporting facts. A PDR, however, has
assumes there's a need to remember it. The              facts, law, the court of appeals' holding, and
purpose of a PDR is to get the judges                   a central issue. It is sometimes difficult to
interested. If they use up all their available          start with your issue without providing some
attention on your overly long and detailed              background. Nevertheless, it is important to
recitation of the facts, they won't have any            tell the Court what your issue is and why it
left for your actual issue.                             is important early on. The reader's attention
                                                        span drops with each page, sometimes
                                                        exponentially beyond a certain number of

                                                   12
pages. If the reader can't find the heart of          and understand how the authority you've
your argument, he may start skimming in an            cited supports it.
effort to find it, in which case, he might
skim over something important. Or, worse              Tone
yet, he may simply lose interest.
                                                      Credibility is important at any phase of a
Footnotes                                             proceeding, but it is especially so when the
                                                      Court's decision to grant review is
 Some writers include case cites or the text          discretionary. Do not be overly critical of
of statutes in footnotes. Footnotes are also          the court of appeals, even if you believe
used to make the reader aware of something            their opinion was nonsensical. Avoid any
that is interesting but not essential to the          suggestion that the court intentionally erred.
argument. A footnote is also a good place to          If the court omitted facts from its analysis, it
dispel any qualms the Court might have                is much more tactful to say it overlooked
about granting review in your case.                   rather than ignored them. Sometimes the
Footnotes are often used extensively in               court of appeals may not adequately explain
briefs and opinions, where an exhaustive              its rationale, but resist the urge to belittle the
approach to an issue is appropriate. But              opinion. The judges on the Court of
they should be used sparingly in a PDR and            Criminal Appeals are more likely to
be no longer than a few sentences unless              empathize with the court of appeals justices
they contain the text of a statute.                   than with snarky appellate lawyers.

Authority                                             V. Odds and Ends


One case is generally enough for each                 A. When to file a Motion for Rehearing
proposition of law. String cites are                  before filing a PDR:
unnecessary unless you are tracing the
history of a particular principle, showing            Some judges prefer that the parties give the
how other jurisdictions treat an issue, or            courts of appeals an opportunity to correct
showing how many courts of appeals are on             their mistakes by filing a motion for
one side of an issue or the other.                    rehearing. Most of the time, a motion for
                                                      rehearing will be denied, but pointing out to
State the primary holding of the opinions             the Court of Criminal Appeals that you gave
you cite and explain how they apply to your           the lower court that opportunity could be
case. If your issue depends on a particular           beneficial.
statute, quote the pertinent part of it. Don't
just cite a case or statute and expect the            Motions for rehearing are always a good
judge or staff attorney to pick up a book or          idea if the court of appeals incorrectly stated
go to Lexis or Westlaw to read it. Always             crucial facts, misstated the law, or missed
use jump cites to pinpoint the page where             recent, binding opinion from the Court of
the holding appears and always use                    Criminal Appeals or the U.S. Supreme
parentheticals setting out the holding when           Court.
you use a "see" cite. The key is to make it
easy for the reader to follow your argument           B. When your opponent files a PDR:


                                                 13
You have three options: file a reply, do                Another example is if the trial court grants a
nothing, or file a cross-petition.                     new trial on two bases, the State appeals,
                                                       and the court of appeals holds that reason A
 1. Reply: A reply to a party's PDR is due             for granting a new trial was valid, and
15 days after the opposing party's petition is         reason B was not. If the State files a PDR
timely filed in the court of appeals. Rule             challenging the court of appeals' holding as
68.7 (b)v                                              to reason A, Appellee should file a cross-
                                                       petition challenging the holding as to reason
2. Do nothing: As a general rule, a reply to           B.3
a PDR is needed only if your opponent's
PDR misrepresents the law or the facts or              The importance of the cross-petition was
there is a procedural problem with the case            recently illustrated in Payne v. State, PD-
that would make it difficult for the Court of          1214-11, (Tex.Crim.App. 2013) (not for
Criminal Appeals to address the issue or               publication) 2013 Tex. Crim. App. Unpub.
grant the relief sought. Very little is gained         LEXIS 237. The victim's hearsay
by filing a reply that merely says the court           statements were admitted at trial. The State
of appeals was correct.                                argued error was not preserved, the
                                                       statements were not hearsay, and their
3. "Cross-petition": Rule 68.2(b)                      admission was harmless. The Court of
provides for a "subsequent petition," stating,         Appeals held that Appellant's objections
"Even if the time specified in (a) has                 were sufficient and the statements were
expired, a party who otherwise may file a              inadmissible, but error was harmless.
petition may do so within 10 days after the            Appellant's petition for discretionary review
timely filing of another party's petition."            addressed the harm analysis. The State did
                                                       not file a cross-petition on preservation and
A cross-petition is often filed when the court         error, but after the Court granted Appellant's
of appeals affirms the conviction, but                 PDR on the harm analysis, the State raised
reverses on punishment; reverses one                   those issues in its brief. The Court however,
conviction, but affirms another; or affirms            declined to consider the State's arguments
the conviction, but deletes a deadly weapon            on those topics because it did not file a cross
finding or restitution order. In these cases,          petition. The Court assumed error was
both parties won in part and lost in part.             preserved that that the statements were
One party may not care enough about the                hearsay, and it reversed due to a faulty harm
loss to file a PDR unless the other party files
one.                                                     On PDR, the parties keep the same
                                                       designation they had in the court of appeals.
A cross-petition might also be called for              If the State appealed to the court of appeals
even if you won the case outright in the               and wins, the style in the Court of Criminal
court of appeals. File a cross-petition when           Appeals is still State v. Doe and the
the court of appeals' ultimate holding is in           defendant remains the Appellee, even if he
your favor, but it disagreed with you on an            is the one filing the PDR. If the defendant
issue and your opponent files a PDR, which,            appealed, he remains the Appellant
if decided in his favor, would change the              throughout the process, even if the State
outcome of the case.                                   loses in the court of appeals and files a PDR.


                                                  14
analysis. The State's motion for rehearing           the lack of a certified bill of costs in the
arguing that the Court's should reconsider           record when a specific amount of court costs
its policy of requiring a cross-petition to          does not have to be included on the
raise such issues was denied.                        judgment."
                                                     "The Fourteenth Court of Appeals erred in
B. If your PDR is granted:                           deleting court costs on the written judgment
You must file a brief within 30 days after           based upon the lack of a certified bill of
review is granted. Rule 70.1. This is                costs in the record when appellant failed to
mandatory. You cannot simply rely on                 preserve his claim for appellate review and
your PDR. Rule 38.1 applies to your brief            the issue is not ripe for review."
on the merits.                                        "The Fourteenth Court of Appeals erred in
                                                     deleting the court costs on the written
C. If your opponent's PDR is granted:                judgment based upon the lack of a certified
You must file a brief within 30 days after           bill of costs in the record when there is no
the petitioner's brief is filed. Rule 70.2.          requirement that the record include a
This is mandatory. Rule 38.2 applies to              certified bill of costs."
your brief. Also, there is no motion for             "The Fourteenth Court of Appeals erred in
rehearing from the granting of a PDR. Rule           deleting the court costs on the written
79.2 (b). But if you think the PDR should            judgment based upon the lack of a certified
not have been granted, you can argue that in         bill of costs in the record when the evidence
your brief and suggest that the Court dismiss        was otherwise sufficient to sustain the
the PDR as improvidently granted.                    assessed court costs."
                                                     "The Fourteenth Court of Appeals erred in
D. If your PDR is refused:                           deleting the court costs on the written
You have 15 days to file a motion for                judgment based upon the lack of a certified
rehearing from the refusal of a PDR under            bill of costs in the record when the district
Rule 79.1. You must certify that your                clerk's office has no authority to create a
motion is based on "substantial intervening          new document for the appellate record after
circumstances" or "other significant                 the notice of appeal has been filed."
circumstances." Rule 79.2(c).                        "The Fourteenth Court of Appeals erred in
                                                     deleting the court costs on the written
VI. Current Trends in PDR issues                     judgment based upon the lack of a certified
                                                     bill of costs in the record when the district
Court costs and fees                                 clerk's office did supplement the appellate
                                                     record with a certified bill of costs."
"The Court of Appeals erred by creating an           (Johnson, PD-0193-13)
exception to Mayer v. State, and holding that
withholding money from an indigent                    "Is an objection concerning repayment of
inmate's trust account to pay court-                 special prosecutor fees required to preserve
appointed attorney's fees does not violate           error?" (Landers, PD-1673-12).
the statute." (Cates, PD-0861-12)
                                                      "May a final judgment revoking community
"The Fourteenth Court of Appeals erred in            supervision assess an attorney fee incurred
deleting the specific amount of court costs          at the imposition of community supervision,
on the judgment of conviction based upon             if neither evidence nor a court finding

                                                15
indicates the defendant has ever been able to         attempted tampering with or fabricating
pay such a fee?" (Wiley, PD-1728-12)                  physical evidence." (Rabb, PD-1643-12)

Lesser included offenses                              Defenses


"Did the Legislature intend to allow separate         "Is a defendant who, at trial, both flatly
punishments for indecency with a child by             denies the elements of aggravated sexual
both exposure and contact committed                   assault of a child and recants his pre-trial
against the same victim when the exposure             admission entitled to an instruction on the
precedes the contact?"                                medical-care defense based upon that pre
"Was the exposure in this case subsumed by            trial admission?" (Villa, PD-0792-12)
the sexual contact?" (Loving, PD-13 34-12)
                                                      "Whether Section 22.021 of the Texas Penal
"Whether the Court of Appeals erred in                Code is unconstitutional, under the Due
holding that criminal trespass should have            Process Clause of the Fourteenth
been submitted as a lesser included offense           Amendment, due to its failure to require the
to burglary of a habitation, when the                 State to prove that Defendant had a culpable
defendant's entire body did not enter the             mental state ("mens rea") relating to the
habitation, such he could not have been               alleged victim's age when engaging in the
guilty of a criminal trespass?" (Meru, PD-            conduct alleged?
1635-12)                                              Whether Section 22.021 of the Texas Penal
                                                      Code is unconstitutional, under the Due
"The Ninth Court of Appeals erred when it             Process Clause of the Fourteenth
upheld the trial court's denial of Appellant's        Amendment, due to its failure to recognize
request for an instruction on a lesser                an affirmative defense based on Defendant's
included offense where evidence had been              reasonable belief that the alleged victim at
presented at trial which supported the                the time was 17 years of age or older?
submission of the lesser included in the jury         Whether Section 22.021 of the Texas Penal
charge." (Wortham, PD-0765-12                         Code is unconstitutional, under the Due
                                                      Course of Law provision of the
"Should the court of appeals have reformed            Texas Constitution, Article I, Section 19,
the verdict to the lesser-included offense of         due to its failure to require the State to prove
criminally negligent homicide rather than             that Defendant had a culpable mental state
rendering a verdict of acquittal?" (Britain,          ("mens rea") relating to the victim's age
PD-0175-13)                                           when engaging in the conduct alleged?
                                                      Whether Section 22.021 of the Texas Penal
"In the alternative, the Court of Appeals             Code is unconstitutional, under the Due
reversibly erred by failing to reform the             Course of Law provision of the Texas
judgment to reflect a conviction for the              Constitution, Article I, Section 19, due to its
lesser included offense of attempted                  failure to recognize an affirmative defense
manufacture:" (Canida, PD-0003-13)                    based on Defendant's reasonable belief that
                                                      the alleged victim at the time was 17 years
 "The Court of Appeals reversibly erred by            of age or older?" (Fleming, PD-1250-12)
failing to reform the judgment to reflect a
conviction for the lesser included offense of


                                                 16
"The Court of Appeals erred by affirming
the trial court when it, over objection, failed
to include in the court's charge to the jury on
guilt/innocence the affirmative defense that
the actor was not more than three years older
than the victim at the time of the offense."
(Sanchez, PD-1289-12)

"When the evidence established only that
appellant "felt threatened" before he raised
his gun and began firing, must the trial court
instruct on sudden passion?
Had the trial court erroneously failed to
instruct on sudden passion, did a sentence
above 20 years automatically demonstrate
harm, even after the jury rejected appellant's
claim that he "felt threatened" by finding
against self-defense?" (Wooten, PD-1437-
12)

"Was appellant entitled to a jury instruction
on "voluntary act?" (Farmer, PD-2620-12)




                                                  17
\




    18
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-13-00390-CR
                                       NO. 03-13-00391-CR
                                       NO. 03-13-00392-CR




                                    Andria Stanley, Appellant




                                   The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
            NOS. D-l-DC-12-300267, D-l-DC-12-300754, & D-l-DC-12-300755
            THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING




                             MEMORANDUM                  OPINION



               A jury convicted appellant Andria Stanley of four felony offenses—two counts of

familyviolence aggravated assault, see Tex. Penal Code § 22.02(a)(1), (2), aggravatedkidnapping,

see id. § 20.04, and burglary of a habitation,see id. § 30.02(a)(1)—all arising out of a visit she made

to her ex-husband's home in the middle of the night. The jury assessed appellant's punishment at

confinement in the Texas Department of Criminal Justice for 50 years and 20 years for the assault

offenses, see id. §§ 12.32, 12.33, 22.02(b)(1), 50 years for the kidnapping offense, see id. §§ 12.32,

20.04(c), and 50 years for the burglary offense, see id. §§ 12.32, 30.02(d). On appeal, appellant

complains about the admission of evidence and the denial of a requested jury charge instruction.

Finding no reversible error, we affirm the judgments of conviction for the first count of family

violence aggravated assault (Count I in appeal number 03-13-00390-CR), the aggravated
      i

* '




          kidnapping (appeal number 03-13-00391-CR), and the burglary of a habitation (appeal number

          03-13-00392-CR). However, through our own review of the record, we have found non-reversible

          clerical error in the written judgment of conviction for the second count of family violence

          aggravated assault (Count III in appeal number 03-13-00390-CR1). We modify that judgment to

          correct the error and affirm that judgment of conviction as modified.


                                                    DISCUSSION2

                         In two points of error, appellant asserts that the trial court erred by (1) admitting an

          agreed protective order from a family law proceeding involving appellant and her ex-husband, and

          (2) failing to include her requested instruction regarding jury unanimity on the burglary of a

          habitation in the jury charge.


                                            Admission of Protective Order


                         At the time the instant offenses were committed, appellant and her ex-husband, Jason

          Witt, were involved in post-divorce family law proceedings concerning the custody of their two

          children. At appellant's trial, the State offered a copy of an agreed protective ordered entered in

          those proceedings, State's Exhibit #71, which contained a finding that appellant "caused serious

          bodily injury to [Witt]." Appellant objected tothe admission ofthe protective order, asserting that

          her family law attorney provided ineffective assistance of counsel by advising her to agree to the

                 1 The State abandoned Count II of the indictment, which also alleged family violence
          aggravated assault, during trial priorto closing its case-in-chief.
                 2 Because the parties are familiar with the facts ofthese cases, their procedural histories, and
          theevidence adduced at trial, we limit recitation of them in this opinion to those necessary to advise
          the parties ofthe Court's decisions and the basic reasons for them. See Tex. R. App. P. 47.1, 47.4.
protective order in the family law proceedings. The trial court overruled appellant's objection and

admitted the order as a statement against interest as well as an admission of a party opponent. See

Tex. R. Evid. 803(24) (providing that statement against penal interest not excluded by hearsay rule),

801(e)(2) (providing that admission by party opponent is not hearsay).

                  We review a trial court's decision to admit or exclude evidence for an abuse of

discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Sandoval v. State,

409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). A trial court abuses its discretion only

if its determination "lies outside the zone of reasonable disagreement."          Martinez v. State,

327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.

App. 2007); Sandoval, 409 S.W.3d at 281. We consider the ruling in light of what was before the

trial court at the time the ruling was made and uphold the trial court's decision if it lies within the

zone of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009);

Sandoval, 409 S.W.3d at 281. If the trial court's evidentiary ruling is correct on any theory of law

applicable to that ruling, we will uphold that decision. De La Paz v. State, 279 S.W.3d 336, 344

(Tex. Crim. App. 2009); Sandoval, 409 S.W.3d at 297.

                  To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence bothdeficient performance by counsel andprejudice suffered bythe

appellant.3 Strickland v. Washington, 466 U.S. 668,687 (1984); Nava v. State, 415 S.W.3d 289,307


       3 For the sake of our discussion,we will assumewithout decidingthat appellantwas entitled
to the effective assistance of counsel under Strickland at the protective order hearing, a civil
proceeding separate from the criminal proceeding. See Strickland v. Washington, 466 U.S. 668,687
(1984) (setting forth standard of review for analyzing claim of ineffective assistance ofcounsel in
criminal case).
(Tex. Crim. App. 2013). The appellant must first demonstrate that counsel's performance fell below

an objective standardof reasonableness under prevailing professional norms. Strickland, 466 U.S.

at 687-88; Nava, 415 S.W.3d at 307. The appellant must then show the existence of a reasonable

probability—one sufficient to undermine confidence in the outcome—that the result of the

proceeding wouldhavebeendifferentabsentcounsel's deficient performance. Strickland, 466U.S.

at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700;

see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

               Appellate reviewof counsel's representation is highlydeferential; we must "indulge

in a strong presumption that counsel's conduct was not deficient." Nava, 415 S.W.3d at 307-08;

see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must

be "firmly founded in the record," and"the record must affirmatively demonstrate" the meritorious

nature of the claim. See Menefield v. State, 363 S.W!3d 591, 592 (Tex. Crim. App. 2012);

Goodspeedv. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Moreover, "[t]he mere factthat

another attorney might have pursued a different course ofaction... does notsuffice toprove a claim

of ineffective assistance of counsel." Exparte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App.

2012);5eeMwnozv.5tote,No.03-12-00809-CR,2014WL6208654,at*5(Tex.App.—Austin Nov.

14, 2014, pet. refd) (mem. op., notdesignated for publication); Harris v. State, 125 S.W.3d 45, 54

(Tex. App.—Austin 2003, pet. ref d, untimely filed).

               At trial, appellant called the attorney who represented her in the family law

proceedings to testify, outside the jury's presence, about his advice to her that she agree to the
protective order in lieu of testifying at the protective order hearing.4 Her attorney testified that he

advised her to agree to the protective order in lieu oftestifying at the hearing based on "[his] concern

that she would state something inadvertently on the record that would harm her greatly in her

criminal case." He said that he "didn't want any more information being put on the record in a case

related to anything related to this relationship because I didn't want it to be used against her in the

criminal case." In her objection at trial and in her argument on appeal, appellant maintains that this

was faulty legal advice because she could have invoked her Fifth Amendment right against

self-incriminationas to any topics that might adverselyaffect her criminal case. However, her family

law counsel averred that he and appellant had been "very close friends for a long period of time"

before he began representing her in the family law matters. He expressed his understanding that the

family law judge presiding over the protective order hearing would have granted appellant's

invocation of the Fifth Amendment right regarding the events forming the basis of the instant

criminalcharges, but indicated that "there were ancillarymatters that possibly could have affected

what went on." Appellant's family law attorney stated:


               At that point, honest to goodness, my only concern to her was to avoid her
        stepping in land mines that she set for herself, which she has a tendency to do, and




        4 At the time of the instant offenses, a hearing regarding final arrangements for custody and
child support was pending. Also pending was a contemptproceedingrelating to appellant's failure
to comply with the family law court's previously entered order. Upon learning that his client had
been assaulted and shot, Witt's family law attorney filed an application for a protective order. All
of these issues were taken up at the final hearing. In her brief, appellant conflates the contempt
hearing and the protective orderhearing. However, it is clearfrom the record that these hearings,
relating to mutually exclusive issues, were separate and distinct, although scheduled on the same
date, and the legal advice at issue related only to the protective order hearing.
       I didn't want something to happen to her in the criminal case [sic] that affected her
       here. That was my biggest concern.

                Because my concern was that she would say something that would harm her
       in this criminal case in some way, shape or form. Because I had recently just gone
       over the whole family law case. It's voluminous. It's a huge file.

              I read everythingin that file and there [were] a lot of things that were said and
       done during the course of the family law case that concerned me, and my concern
       was she's going to do something like this again on the witness stand and it's going
       to hurt her in the criminal case.



               Appellant asserts in her brief that counsel's testimony "betrays a misunderstanding

of the scope of the Fifth Amendment privilege." This argument assumes that the ancillary matters

counsel referenced were matters to which she could have invoked her Fifth Amendment right and

remained silent. However, while appellant's family law attorney repeatedly expressed his concern

about appellant testifying about matters that could be used against her in the criminal proceeding,

hedid notexpress thatthese were matters exposing herto criminal liability orcriminal responsibility

to which she could have invoked her rightto remain silent. This is an assumption appellant makes,

which is not founded in the record. See Villa v. State, All S.W.3d 455,463 (Tex. Crim. App. 2013)

("[Counsel's alleged deficiency must be affirmatively demonstrated in thetrialrecord."). In fact,

the tenor of counsel's testimony suggested otherwise.

               Furthermore, in testifying aboutthe circumstances underwhichhe advised appellant

to agree to the protective order, counsel indicated that it was ultimately appellant's decision:


       I strongly suggested that she sign it. Ididn'tforce hertodo anything, butI said inmy
       legal opinion I think you need to sign this, I think the Court isgoing togrant it either
       way, and I think that it's in your best interest to sign this to keep from getting into
       any ancillary matters that may hurt you in your criminal case.
Counsel also recounted the fact that appellant insisted on making some changes to the order before

signing it.

               Based on the testimony of appellant's family law attorney regarding his personal

acquaintance with appellant, his familiarity with the family law case, and his knowledge of the

relationship between appellantand her ex-husband, the trial court could have reasonably concluded

that counsel's advice to her at the protective order hearing was the product of an informed strategic

and tactical decision, which appellant agreed with and followed at the time but later criticized in a

self-serving attempt to exclude her admission. Based on the record before it, the trial court could

have reasonably found that counsel's performance did not fall below an objective standard of

reasonableness under prevailing professional norms—that is, that appellant failed to demonstrate

deficient performance on the part ofher family lawcounsel. SeeFrangias v. State, A50 S.W.3d 125,

136 (Tex. Crim. App. 2013) ("[U]nless there is a record sufficient to demonstrate that counsel's

conduct was not the product of an informed strategic or tactical decision, a reviewing court should

presume that trial counsel's performance was constitutionally adequate 'unless the challenged

conduct was so outrageous that no competent attorney would have engaged in it.'") (quoting

Goodspeed, 187 S.W.3d at 392). Accordingly, we conclude that the trial court did not abuse its

discretion in admitting the protective order into evidence at appellant's trial.

               Moreover, even assuming the trial court erred in admitting the protective order into

evidence,we would nevertheless conclude that the error did not constitute reversible error. See Tex.

R. App. P. 44.2(b). The erroneous admission ofevidence isnon-constitutional error. Kirby v. State,

208 S.W.3d 568, 574 (Tex. App.—Austin 2006, no pet.); see Coble v. State, 330 S.W.3d 253, 280
(Tex. Crim. App. 2010); Casey, 215 S.W.3d at 885. Non-constitutional error is reversible only if

it affects the substantial rights of the defendant. See Tex. R. App. P. 44.2(b); Barshaw v. State,

342 S.W.3d 91, 93 (Tex. Crim. App. 2011). We will not overturn a criminal conviction for

non-constitutional error if, after examining the record as a whole, we have fair assurance the error

did not influencethe jury, or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93; Kirby,

208 S.W.3d at 574.


               In assessing potential harm, our focus is not on whether the outcome of the trial was

proper despite the errorbut on whether the errorhad a substantial or injurious effector influence on

the jury's verdict. Barshaw, 342 S.W.3d at 93-94. We review the entire record to ascertain the

effect or influence on the verdict of the wrongfully admitted evidence. Id. at 93; see Coble,

330 S.W.3d at 280 (in conducting harm analysis "we examine the entire trial record and calculate,

as much as possible, the probableimpactof the errorupon the rest of the evidence"); see alsoMoon

v. State, AA S.W.3d 589, 595 (Tex. App.—Fort Worth 2001, pet. ref d). We consider all the

evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character

of the alleged error, and how the evidence might be considered in connection with otherevidence

in the case. Barshaw, 342 S.W.3d at 94. We may also consider the jury instructions, the parties'

theories of the case, closing arguments, voir dire, and whether the State emphasized the error. Id.;

Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

               In his testimony at trial, appellant's ex-husband described the events of that night,

providing details ofappellant's unauthorized entry into his home and the ensuing attack. He testified

that he awoke during thenightto sounds in hisbedroom. He saw a figure andthenwas struck inthe
head with awooden baton-like object. Heattempted todefend himself, struggling with hisassailant.

His attacker yelled, and Witt recognized the voice as appellant. Appellant then fired a gun atWitt,

and he turned on the lights and saw appellant standing with a gun in her hand. Holding the gun on

him, appellant demanded that he make concessions in their ongoing custody battle. Witt recounted
how appellant then forced him at gunpoint to lie face down on the bed and bound his hands behind
his back andbound his feet at the ankles. She next wrapped him up in the bed sheets, sat him up on

the bed, and wrapped plastic wrap around his head. Panicked, Witt began to struggle and fell tothe

floor. As he lay on the floor, appellant struck him repeatedly on the back of the head with the

wooden object. As he struggled, Witt managed to free one hand and his feet. He then attempted to
get the gun, which was at the end of the bed, as did appellant. As they struggled for the gun,
appellant fired the gun at Witt, striking him in the face. They continued to struggle over the gun, and
eventually Witt gained control ofthe gun. He struck appellant with the barrel ofthe gun, pushed her
out ofhis bedroom, and managed to secure and lock his bedroom door. He then locked himself in

his bathroom and called 911.

               Witt's testimony was corroborated by physical evidence recovered from his home

(including abroken wooden baton and roll ofplastic wrap, both with appellant's and Witt's DNA
on them) and from appellant (blood containing Witt's DNA on the bottom ofone ofthe shoes she
wore that night), photographic evidence depicting Witt's injuries (which included agunshot wound
to his cheek as well as contusions and lacerations to his face and head, some of which required

staples and sutures, and ligature marks on his wrists), medical evidence from treating hospital
physicians, police officers' testimony regarding Witt's condition and demeanor when they arrived
at his home (including his initial refusal to come out ofhis locked bathroom until he was convinced

it was in fact the police, and the fact that he was covered in blood when he eventually emerged), as

well as the testimony of appellant's mother regarding admissions appellant made upon her return

from Austin (that she went to visit Witt, that she had her mother's gun with her, that the gun "went

off," and that Witt "might have been hit"). The prosecutors did not mention the protective order in

closing argument, nor did the State overly emphasize the protective order otherwise.

               After examining the record as a whole, including the strength of the State's case, we

have fair assurance that the admission of the protective order, if it was error, did not influence the

jury or had but a slight effect. Therefore, any error in admitting the order was harmless.

               We overrule appellant's first point of error.


                         Denial of Requested Jury Charge Instruction

               In her second point of error, appellant complains about the trial court's failure to

include her requestedjury charge instruction concerning unanimity on the burglary of a habitation

charge and argues that she was harmed by the omission of such an instruction. The burglary




                                                  10
indictment in this case chargedappellantwith burglary of a habitation in four separate paragraphs,5

alleging (in relevant part) that appellant did then and there


       with intent to commit the felony offense of Aggravated Assault, enter a habitation,
       without the effective consent of Jason Witt, the owner thereof. . .

       intentionally or knowingly enter a habitation, without the effective consent of Jason
       Witt, the owner thereof, . . . and attempted to commit or committed the felony of
       Aggravated Assault,...

       with intent to commit the felony offense of Kidnapping, enter a habitation, without
       the effective consent of Jason Witt, the owner thereof,. . . [or]

       intentionally or knowingly enter a habitation, without the effective consent of Jason
       Witt, the owner thereof, . . . and attempted to commit or committed the felony of
       Kidnapping,.. . .6




       s The four paragraphs were originally contained in the indictment as separate counts.
However, prior to the start of trial, the State abandoned—without objection from appellant—the
count language in order to present four alternative paragraphs. See Martinez v. State,
225 S.W.3d 550, 554 (Tex. Crim. App. 2007) ("When the State wishes to charge multiple offenses
in a single indictment, it is required by statute to set out each separateoffense in a separate"count."
Then separate "paragraphs" within a single count may allege different methods of committingthe
same offense." (citing Tex. Code Crim. Proc. art. 21.24(a), (b))); Owens v. State, 96 S.W.3d 668,673
(Tex. App.—Austin 2003, no pet.) ("As a general rule, a 'count' is used to charge the offense itself
and a 'paragraph' is that portion of a count which alleges the method of committing the offense.").

        6 Each of the paragraphs also contained an allegation that Witt was a family member with
whom appellant had had a datingrelationship, see Tex. Fam. Code §§ 71.0021(b) (defining "dating
relationship" as "a relationship between individuals whohaveor havehada continuing relationship
of a romantic or intimate nature"), .003 (defining "family" to include "individuals who are former
spouses of each other [or] individuals who are the parents of the same child"), as well as a deadly
weapon allegation, see Tex. Code Crim. Proc. art. 42.12, § 3g(a)(2) (providing for affirmative
finding upon showing that defendant used orexhibited deadly weapon during commission offelony
or immediate flight therefrom), which we omit here because they are not relevant to the complaint
appellant raises in this point of error.

                                                  11
See Tex. Penal Code § 30.02(a)(1) (providing that offense of burglary is committed by entering

habitation without consent of owner with intent to commit felony, theft, or assault), (3) (providing

that offense of burglary is committed by entering habitation and then committing or attempting to

commit felony, theft, or assault).

               At trial, appellant asked for language to be included in the jury charge instructing the

jurors that in order to convict appellant of burglary of a habitation, they must unanimously agree as

to how she committed the burglary. Concluding that the jury did not have to unanimously agree on

the manner and means by which appellant committed burglary of a habitation, the trial court denied

appellant's requested instruction.

               We review alleged jury charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Price v. State, 457 S.W.3d 437,440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743-44

(Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the jury

charge error was preserved in the trial court. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh'g) (setting forth analysis for determining whether jury charge error requires

reversal). If the jury charge error has been properly preserved by an objection or request for

instruction, reversal is required if the appellant has suffered "some harm" from the error. Vega

v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see Barrios v. State, 283 S.W.3d 348, 350

(Tex. Crim. App. 2009) ("If there was error and appellant objected to the error at trial, reversal is

required if the error 'is calculated to injure the rights of the defendant,' which we have defined to

mean that there is 'some harm.'").



                                                  12
              Texas law requires a unanimous jury verdict in all criminal cases. See Tex. Code

Crim. Proc. art. 36.29(a); Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). More

specifically,"the jury must be unanimous in finding everyconstituent element ofthe chargedoffense

in all criminal cases." Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (citing Pizzo

v. State, 235 S.W.3d 711,714 (Tex. Crim. App. 2007)). Unanimity in this context means that each

and every juror agrees that the defendant committed the same, single, specific criminal act. Ngo,

175 S.W.3d at 745; see Cosio, 353 S.W.3d at 771 (unanimous verdict "means that the jury must

'agree upon a single and discrete incident that would constitute the commission of the offense

alleged'") (quotingStuhlerv. State,2l% S.W.3d706,717 (Tex. Crim. App. 2007)). "[T]hejury must

be instructed that it must unanimously agree on one incident of criminal conduct (or unit of

prosecution), based on the evidence, that meets all of the essential elements of the single charged

offense beyond a reasonable doubt." Saenz v. StateyASl S.W.3d 388, 390 (Tex. Crim. App. 2014)

(quoting Cosio, 353 S.W.3d at 776).

               However, the requirement of jury unanimity is not violated by a jury charge that

presents the jury with the option of choosing among various alternative manner and means of

committing the same statutorily defined offense. Jourdan, 428 S.W.3d at 94; Pizzo, 235 S.W.3d at

715. "A jury must unanimously agree about the occurrence of a single criminal offense, but

they need not be unanimous about the specific manner and means of how that offense was

committed." Young v. State, 341 S.W.3d417, 423 (Tex. Crim. App. 2011);see Landrian v. State,

268 S.W.3d 532, 535 (Tex. Crim. App. 2008) ("The jury must agree that the defendant committed

one specific crime. That does not mean, however, that the jury must unanimously find that the


                                                13
defendant committed that crime in one specific way or even with one specific act." (internal citations

omitted)); Miranda v. State, 391 S.W.3d 302, 310 (Tex. App.—Austin 2012, pet. ref d) ("Jury

unanimity is required with respect to all essential elements of the offense at issue; however, the jury

need not unanimously agree on the specific method of committing a single offense.").

               "'[M]anner or means' describes how the defendant committed the specific statutory

criminal act." Ngo, 175 S.W.3d at 745. The State is permitted to plead alternate manner and means

of committing the same offense. Landrian, 268 S.W.3d at 535-36. '"Therefore, different modes

of commission may be presented in a jury instruction in the disjunctive when the charging

instrument, in a single count, alleged the different means in the conjunctive.'" Jourdan, 428 S.W.3d

at 94 (quoting Pizzo, 235 S.W.3d at 715). "Determining whether a statute creates multiple offenses

(which requires unanimity as to one offense) or merely a single offense that may be committed by

one of multiple manner and means (which do not require unanimity) 'is a function of legislative

intent, and in examining statutory language for legislative intent, we inquire into the 'gravamen' of

the offense.'" Irielle v. State, 441 S.W.3d 868, 874 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

(quoting Jourdan, 428 S.W.3d at 95-96).

               The gravamen of a burglary offense is the unauthorized entry with the requisite

mental state or further requisite act. See DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App.

1988) ("The gravamen of the offense of burglary clearly remains entry of a building or habitation

without the effective consent of the owner, accompanied by either the required mental state, under

§§ 30.02(a)(1) and (2)... or the furtherrequisite acts or omissions, under § 30.02(a)(3)."); see also

Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006) (unlawful entry is gravamen of


                                                  14
burglary because offense is complete once unlawful entry is made). Burglary of a habitation may

be committed three different ways. See Tex. Penal Code § 30.02(a)(l)-(3) (offense of burglary is

committed by (1) entering habitation with intent to commit felony, theft, or assault; (2) remaining

concealedin habitation with intent to commit felony, theft, or assault; or (3) entering habitation and

then committing or attempting to commit felony, theft, or assault); see also Shaw v. State,

557 S.W.2d 305, 306 (Tex. Crim. App. 1977), overruled in part on other grounds by Almanza,

686 S.W.2d at 174. These different ways are not separate burglary offenses; they are alternative

means of committing the single offense of burglary. Washington v. State, No. 03-11-00428-CR,

2014 WL 3893060, at *3-4 (Tex. App.—Austin Aug. 6,2014, pet. refd) (mem. op., notdesignated

for publication); Martinez v. State, 269 S.W.3d 777, 783 (Tex. App.—Austin 2008, no pet.).

               Tracking the indictment in this case, the application paragraphs of the jury charge

concerning the burglary offense instructed the jurors that they could convict appellant of burglary

ofa habitation if they found that she entered the home ofJason Witt, a family member, without his

effective consent:



               with intent to commit the felony offense of aggravated assault;

               and attempted to commit or committed the felony of aggravated assault;

               with intent to commit the felony offense of kidnapping;

                and attempted to commit or committed the felony of kidnapping.


The charge, in other words, submitted the four burglary allegations, relating to the different sections
ofthe burglary of a habitation statute, disjunctively. Thus, the jury charge set forth the single,


                                                  15
specific statutory offense ofburglary ofa habitation and included four alternative manner and means

of committing that offense. Alternate manner and means of committing the same offense may be

submitted to the jury without violating the right to a unanimous jury verdict. See Martinezv. State,

129 S.W.3d 101, 103 (Tex. Crim. App. 2004) ("The unanimity requirement is not violated by

instructing the jury on alternate theories of committing the same offensef.]").

                At trial, appellant asserted that the failure to include the jury unanimity instruction

denied her the opportunity to have a unanimous verdict on the burglary of a habitation, which was

"a violation of [her] rights under the U.S. Constitution and the Texas Constitution due course of

law." In this case, however, whether appellant entered Witt's home with the intent to commit

aggravated assault or kidnapping, or entered Witt's home and committed (or attempted to commit)

aggravated assault or kidnapping, only a single unlawful entry into the home was committed.

Therefore, the jury charge instructing the jury to find appellant guilty if it found eitherthat she had

unlawfully entered the victim's habitationwith intent to commit a felony or that she had unlawfully

entered the victim's habitation and then committed or attempted to commit a felony did not deprive

appellant of her constitutional right to a unanimous verdict. The unauthorized entry with intentto

commit a felony or the unauthorized entry and the commission (or attempted commission) of a

felony were simply alternative methods of committing the same burglary offense. Hence, the trial

court did not err by denying appellant's requested jury unanimity instruction as no such unanimity

was required.

                On appeal, appellant maintains that the failure to instruct the jury that its verdict

required unanimous agreement astothe manner and means ofcommitting theburglary ofhabitation


                                                  16
possibly subjected her to double jeopardy because the predicate offense in two of the paragraphs of

the burglary charge (the aggravated assault) was also charged in a separateindictment.7 SeeLangs

v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006) (defendant may not be punished for both

underlying felony and burglary ifburglary allegation is that defendant entered home without consent

of owner and then committed underlying felony within home; conversely, substantive felony and

burglary by entering home without consent of owner and with felonious intent to commit that

substantive felony are two distinct offenses not constituting double jeopardy violation). Although

acknowledging that the subsections of the burglary statute are merely alternative manner and means

of committing burglary, appellant argues that "under the circumstances" of this case, the lack of

unanimity between the statutory subsections, "opened the possibility" that the jury's general verdict

resulted in a double jeopardy violation.

               However, even had the trial court included the requested unanimity instruction, the

double jeopardy "possibility" would not have been resolved. The verdict form for the burglary

charge required the jury to return a general verdict: "We, the Jury, find the defendant, [appellant],

(guilty or not guilty) of the offense of Burglary of a Habitation." Even had the court included



        7 Initially, we note that the record does not reflect that appellant raised her double jeopardy
concerns at trial—during the charge conference when requesting the unanimity instruction on the
burglary offense or at any other time during trial. See Tex. R. App. P. 33.1(a)(1)(A) (to preserve
error, party must not only present timely request or objection to trial court but must also state
grounds for request or objection "with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context"); Buchanan v. State,
207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (general or imprecise objection suffices to preserve
error"onlyif the legal basis for the objection is obvious to the courtand to opposing counsel"); see
also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014), cert, denied, 135 S. Ct. 1158
(2015) (point of error on appeal mustcomport with objection made at trial). Arguably, appellant's
complaint on appeal was not properly preserved for appellate review.

                                                  17
appellant's requested unanimity instruction and required the jury to be unanimous as to the manner

and means by which appellant committed the burglary, there would be no way of knowing from the

general verdict which manner and means the jury was unanimous about. There is no requirement

that the jury designate which of the alternate manner and means of committing the specific offense

the jurors found to have been proven. Thus, appellant's requested jury unanimity instruction did not

address, and certainly did not eliminate, the double jeopardy concern appellant now raises for the

first time on appeal. Even with the requested instruction, the "possibility" that the jury's general

verdict resulted in a double jeopardy violation still existed.       With or without the requested

instruction, appellant was in the same position regarding a potential double jeopardy violation.

               For that reason, even assuming the denial of the requested instruction was error,

which we conclude it was not, we reject appellant's claim that she suffered "some harm" because

the trial court denied her jury unanimity instruction. Once again, if jury charge error has been

properly preserved by an objection or request for instruction, as in this case, reversal is required if

the appellant has suffered "some harm" from the error. Vega, 394 S.W.3d at 519. "This means that

the trial record must demonstrate that there is some actual harm and not just a theoretical complaint."

Cornet v. State, All S.W.3d 446, 449 (Tex. Crim. App. 2013). Appellant's contention that she was

harmed by the omission of the requested jury unanimity instruction is based solely on the

hypothetical possibility of a double jeopardy violation—a wholly theoretical complaint. Because

the jury charge submitted four alternative burglary theories, only one of which posed a possible

double jeopardy violation, the record fails to demonstrate actual harm. SeeLangs, 183 S.W.3d at

687 ("[W]hen separate theories foranoffense areissued to thejurydisjunctively, a double jeopardy


                                                  18
violation is not clearly apparent on the face of the record if one of the theories charged would not

constitute a double jeopardy violation and there is sufficient evidence to support that valid theory.

The fact that the jury's verdict could have relied on a theory that would violate the Double Jeopardy

Clause, is not sufficient to show a constitutional violation 'clearly apparent on the face of the

record.'"); Wilson v. State, No. 05-11-01195-CR, 2012 WL 5504025, at *3 (Tex. App.—Dallas

Nov. 14, 2012, pet. ref d) (not designated for publication) ("When both theories of burglary

described above are submitted to the jury disjunctively, a double jeopardy violation is not clearly

apparent on the face ofthe record if there is sufficient evidence to support the theory that would not

constitute a double jeopardy violation.").

                We overrule appellant's second point of error.


                                   Clerical Error in Judgment

                On review of the record, we observe that the written judgment of conviction for the

second count of family violence aggravated assault in this case (Count III in appeal number

03-13-00390-CR) contains a clerical error. The judgment states that the "Statute for Offense" is

"22.02(a)(1) Penal Code." The statute for the family violence aggravated assault offense as alleged

in Count III of the indictment in this case, however, is section 22.02(a)(2) of the Penal Code. This

Court has authority to modify incorrect judgments when the necessary information is available to

do so. See Tex. R. App. P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993).

Accordingly, we modify the incorrectjudgment ofconviction for the secondcount offamilyviolence

aggravated assault (Count III in appeal number 03-13-00390-CR) to reflect the correct Penal

Code section.


                                                  19
       «

4 ••       .




                                                      CONCLUSION


                             Having overruled appellant's two points of error, we affirm the judgments of

               conviction for the first count of family violence aggravated assault (Count I in appeal number

               03-13-00390-CR), the aggravated kidnapping (appeal number 03-13-00391-CR), and the burglary

               of a habitation (appeal number 03-13-00392-CR). To correct non-reversible clerical error in the

               judgment of conviction for the second count of family violence aggravated assault (Count III in

               appealnumber03-13-00390-CR), we modifythatjudgment asnoted above and affirmthatjudgment

               of conviction as so modified.




                                                           Cindy Olson Bourland, Justice

               Before Chief Justice Rose, Justices Goodwin and Bourland

               03-13-00390-CR         Affirmed; Modified and, as Modified, Affirmed

               03-13-00391-CR         Affirmed


               03-13-00392-CR         Affirmed


               Filed: July 30, 2015

               Do Not Publish




                                                             20
       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                          JUDGMENT RENDERED JULY 30, 2015




                                     NO. 03-13-00390-CR




                                   Andria Stanley, Appellant




                                  The State of Texas, Appellee




        APPEAL FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY
      BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND BOURLAND
           AFFIRMED; MODIFIED AND, AS MODIFIED, AFFIRMED ~
                                                                                                      x
                            OPINION BY JUSTICE BOURLAND




This is an appeal from the judgments of conviction entered by the trial court. Having reviewed

the record and the parties' arguments, the Court holds that there was no error in the trial court's

judgments requiring reversal. Accordingly, the Court affirms the trial court's judgment of

conviction for Count I. However, there was error in the judgment of conviction for Count III

that requires correction. Therefore, the Court modifies the trial court's judgment of conviction

for Count III to reflect that the "Statute for Offense" is "22.02(a)(2) Penal Code." The judgment,

as modified, is affirmed. Because appellant is indigent and unable to pay costs, no adjudication

of costs is made.
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                         JUDGMENT RENDERED JULY 30, 2015




                                    NO. 03-13-00391-CR




                                  Andria Stanley, Appellant




                                The State of Texas, Appellee




           APPEAL FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY
      BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND BOURLAND
                   AFFIRMED - OPINION BY JUSTICE BOURLAND




This is an appeal from the judgment of conviction entered by the trial court. Having reviewed

the record and the parties' arguments, the Court holds that there was no reversible error in the

trial court's judgment of conviction. Therefore, the Court affirms the trial court's judgment of

conviction. Because appellant is indigent and unable to pay costs, no adjudication of costs

is made.
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                         JUDGMENT RENDERED JULY 30, 2015




                                    NO. 03-13-00392-CR




                                  Andria Stanley, Appellant




                                The State of Texas, Appellee




           APPEAL FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY
     BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND BOURLAND
                   AFFIRMED -- OPINION BY JUSTICE BOURLAND




This is an appeal from the judgment of conviction entered by the trial court. Having reviewed

the record and the parties' arguments, the Court holds that there was no reversible error in the

trial court's judgment of conviction. Therefore, the Court affirms the trial court's judgment of

conviction. Because appellant is indigent and unable to pay costs, no adjudication of costs

is made.
