                                                                              ACCEPTED
                                                                          01-15-00484-CR
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                      9/8/2015 3:30:00 PM
                                                                    CHRISTOPHER PRINE
                                                                                   CLERK

   Court of Appeals Cause Numbers 01-15-00484—CR, 01-15—00485-CR
              Trial Court Cause Numbers 1432555, 1432805
                                                  FILED IN
                                           1st COURT OF APPEALS
                                               HOUSTON, TEXAS
             IN THE COURT OF APPEALS FOR THE
                                           9/8/2015 3:30:00 PM
           FIRST DISTRICT OF TEXAS AT HOUSTON
                                           CHRISTOPHER A. PRINE
                                                   Clerk




                         Christian Avery Norris

                                        Defendant, Appellant
                                  VS.


                             State of Texas

                                        Petitioner, Appellee


           ON APPEAL FROM THE DISTRICT COURT
                 HARRIS COUNTY, TEXAS
                 230"‘ JUDICIAL DISTRICT

                        BRIEF OF APPELLANT


Syngman Stevens Jr
200 HWY 90-A Ste B
Richmond, Texas 77469
SBOT: 24043219
281-630-9421
281-344-0105

                     ORAL ARGUMENT WAIVED
                     DESIGNATION OF PARTIES

APPELLANT                                     ..CHRISTIAN AVERYNORRIS
             ..................................




APPELLEE   ........................................
                                                     ..THE STATE OF TEXAS

APPELLANT’S TRIAL ATTORNEY............TERRANCEGAISER

STATE’S TRIAL ATTORNEY            ................
                                                    ..ALAN OTTO

STATE’S ATTORNEYON APPEAL                ........
                                                    ..ALAN CURRY

DISTRICT ATTORNEY         ........................
                                                    ..DEVON ANDERSON

APPELLANT’S ATTORNEYON APPEAL...SYNGMANSTEVENS JR
                               200 HWY 90-A STE B
                               RICHMOND, TEXAS 77469
                       TABLE OF CONTENTS

DESIGNATION OF PARTIES         ...........................................
                                                                           ..i

TABLE OF CONTENTS       ..................................................
                                                                           ..ii

TABLE OF AUTHORITIES        .............................................
                                                                           ..iii

STATEMENTOF JURISDICTION                                               ..Vi
                                    .....................................




STATEMENTOF ISSUES PRESENTED FOR REVIEW                                ..Vi
                                                              ..........




STATEMENTOF CASE                                                       ..1
                        .................................................




SUMMARY OF ARGUMENT            ...........................................
                                                                           ..4

ARGUMENT                                                               ..4
           ...............................................................




PRAYERFOR RELIEF      .................................................
                                                                     ..
                                                                           14

CERTIFICATEOF SERVICE                                                  ..15
                              ..........................................
                              TABLE OF AUTHORITIES

Constitutional Provisions

U.S. Const. amend. VI

Tex. Const. art. 1   §6
Tex. Const. art. 1   §   14

Statutes

TX. CRIM. PRO. Art 42.12

Cases

Boyd V. State, 811       S.W.2d 105   (Tex. Cri. App. 1991)
Craig V. State, 847 S.W.2d 434 (Tex. App.———E1 Paso 1993, no pet.)
Ex Parte Felton, 815 s.W.2d 733        (Tex. Crim. App. 1991)
Ex Parte Gallegos. 511 S.W.2d 510         (Tex.Cr.App.1974).
Ex Parte Duffy, 607 S.W.2d 507         (Tex.Cr. App.. 1980)
Duffy, 607 S.W.2d at 513-516, 527
Glover V. United States, 531 US 198

Gonzalez V. State, 8 S.W.3d 640, 643        (Tex. Crim. App. 2000)
Hernandez, V. State 988 S.W.2d 770 (1999)
Milburn V. State 16 S.W.3d 267        (2000)
Moore V. State 983 S.W.2D        15, 2 (TEX. APP. 1998)




                                            iii
Pickens V. Lockhart, 714 F.2d 1455, 1467 (8th Cir.     1983)
Recer V. State 815 s.W.2d 730   (1991)
Robinson v. State 16 S.W.3d 808         (Tex. Crim. App-2000)
Shanklin V. State 190 S.W.3d 154 (Tex.App.-Hoston[1stDist.] 2005)

Spriggs V. Collins, 993 F .2d 85 (5th Cir. 1993)
Strickland V.   Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984)
Thomas V.   State, 550 S.W.2d 64, 68 (Tex.Cr.App.1977)
Ware V. State, 875 S.W.2d 432       (Tex.App.—Waco1194, pet. Refd).
Williams V.   Taylor, 529 US 362 Supreme Court 2000
                                    —




Vela V. Estelle, 708 F .2d at 954




                                            iv
                   STATEMENTOF JURISDICTION

      This court has jurisdiction of this appeal pursuant to Tex. Const. art. V

§6 as an appeal from the decision of the 23 0”‘ District Court, Harris County,
Texas.


         STATEMENTOF ISSUES PRESENTED FOR REVIEW

1.    Whether defendant was afforded reasonably effective assistance of

counsel as proscribed by the sixth amendment of the United States

Constitution?
                       STATEMENTOF THE CASE

   a.   Course of Proceeding

        On December 1, 2014 in cause numbers 1432555 and 1432805 the

defendant waived trial by jury and plead guilty without an agreed

recommendation to the trial court. On April 29, 2015   during the defendant’s
punishment hearing, defense counsel asks the trial court judge for a
significant amount of jail time, although defendant is eligible for deferred
probation. The Defendant was sentenced to four years in the Institutional
Division of the Texas Department of Criminal Justice.

        On May 6, 2015, Defendant filed a Notice of Appeal of the

convictions and sentence rendered against him in trial court   cause numbers


1432555 and 1432805 respectively.


   b. Statement of Facts


        On June 20, 2014 Defendant, Christian Avery Norris was indicted in

cause number 1432555    for the felony charge of Assault FamilyViolence 2nd

Offender. The indictment presented that before the commission alleged in

cause number   1432555, the Defendant, on July 26, 2015, in the County
Criminal Court at Law no. 12, of Hays County, Texas in Cause No. 13-
0347CR, was convicted of Assault, which was committed against a member
of the defendant s   family. On June 23, 2014, Defendant was appointed
counsel and the trial court judge issued a no contact order, prohibiting

Christian Norris from communicating directly or indirectly with the victim.

On August 8, 2014 the defendant, Christian Avery Norris was indicted in

cause number 1432805      for the felony charge of Violation of Protective

Order. On November 7, 2014 at the comprehensive pretrial conference the

parties agreed on a trial date of December 1, 2014. At the comprehensive
pretrial conference the final plea bargain recommendation was four years in
the Texas Department of Corrections institutional division or plea to the

judge without an agreed recommendation. R.R.       14 In both cause numbers

1432555 and 1432805 the defendants range of punishment was any term not

more   than 10 years or less than 2 years in the Institutional Division of the

Texas Department of Criminal Justice and in addition, a fine not to exceed

$10,000. On November 11”‘ the Assistant District Attorney filed a Notice of
Intention To Use Evidence of Prior Convictions and Extraneous Offenses.

The known prior convictions listed inside of the states motion included two

misdemeanor convictions. One conviction for theft in cause number

1834802 in County Criminal Court At Law 5 Harris county Texas and one
conviction for Assault FamilyMember in cause number l2—0347CR in

County Criminal Court At Law 12 Hays County Texas. On December 1,
2014 the defendant filed a sworn Motion for Community Supervision that

defendant has never been convicted of a felony in this or any other state, and

never been   placed on community supervision for a felony offense in Texas
or   any other State. The Motion for Community Supervision also requested

the presiding judge place the defendant on community supervision. On

December 1, 2014 in cause numbers 1432555 and 1432805, the defendant,

waived trial by jury and plead guilty without an agreed recommendation to

the trial court. The cause numbers were continued to April 29, 2015, and

after a hearing, the Defendant was sentenced to four years in the Institutional

Division of the Texas Department of Criminal Justice. On May 6, 2015,

Defendant filed a Notice of Appeal of the convictions and sentence rendered

against him in these causes.
                              SUMMARY OF ARGUMENT

         Defendant’s convictions for Assault FamilyMember and Violation of

a    Protective Order violate the Defendants right to effective assistance of

counsel. The Court should find that defense counsel’s performance and

resulting prejudice to the defendant was so egregious as to bring the
outcome of the proceeding into          question. The Court should find that but for
defense counsel’s unprofessional errors, the result of the proceeding would

have been different. Thus, the Court should reverse this case and remand this

case    to   the trial court for a new punishment hearing.


                                       ARGUMENT

1.           AS A RESULT OF TRIAL COUNSEL’S PERFORMANCE,

         DEFENDANT’S SENTENCES FOR ASSAULT FAMILY

         MEMBER AND VIOLATION OF PROTECTIVEORDER ARE A

         VIOLATION OF A THE DEFENDANT’S SIXTH AMENDMENT

         RIGHT TO COUNSEL.

A. Standard of review

         Althoughappellant did not raise his ineffective assistance of counsel
claim at trial, such claim may be raised for the first time on appeal when

there is     a   constitutional violation. The defendant need not object in the trial
to   counsel’s ineffective representation to preserve the issue for appellate

review. Robinson v. State 16 S.W.3d 808 (Tex. Crim. App—2000) Thus is

clearly apparent from the face of the record and no legitimate state interest is
served by the enforcement of usual rules of procedural default. Gonzalez v.

State, 8 S.W.3d. 640, 643 (Tex. Crim.App 2000).
B. Defendant’s sentences were     a   violation of his Sixth Amendment Right to

Effective Assistance of Counsel

        The Sixth Amendment Right to counsel includes a right to counsel at

sentencing. The right to effective assistance of counsel is an undisputed
feature of the SixthAmendment right to counsel.

A defendant who wishes to prove that he received ineffective assistance of

counsel must satisfy two requirements: first, the defendant must demonstrate

that counsels performance was unreasonableunder prevailing professional

norms    and he must also demonstrate that counsels deficient performance

resulted in prejudice. Strickland v.   Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984)

        Assuming Strickland left open the question of whether a defendant is
required to show prejudice from deficient attorney performance at noncapital
sentencing proceedings, we perceive no valid reason why Strickland cannot
apply, or why a different rule should apply, to noncapital sentencing
proceedings. Hernandez V. State 988 S.W. 2d 770 (1999) The Strickland
Standard applies in capital and non-capital cases. Boyd V. State, 811 S.W.2d

105   (Tex. Crim. App. 1991)
              To determine whether counsels assistance was reasonably

effective during the punishment phase of the trial the representation must be

viewed in its totality. Ex Parte Duffy, 607 S.W.2d 507 (Tex.Cr.App..1980))

Each case must be reviewed based upon its individual facts and

circumstances. Ex Parte Gallegos. 511 S.W.2d 510        (Tex.Cr.App.1974).
        The defendant who is able to demonstrate that counsel’s performance

was   deficient will not prevail on an ineffective assistance claim unless he

can   also demonstrate prejudice. The court in Strickland stated the defendant

must also   show thatthere is a reasonable probabilitythat, but for counsels

unprofessional errors, the result of the proceeding would have been
different. According to the court,   a   reasonable probabilityis   a   probability
sufficient to undermine confidence in the outcome.

        A judge, in the best interest of justice, the public, and the defendant,

after conviction or a plea of guilty or nolo contendere, may suspend the

imposition of the sentence and place the defendant on community
supervision or impose a fine applicable to the offense and place the
defendant on community supervision, this is often referred to as straight

probation. CCP Art. 42.12 § 3.
        CCPP Art. 42.12    § 5(a) allows a judge following a plea of guilty or
nolo contendere to find thatthe evidence substantiates the defendant’s guilt,

defer further proceedings without entering an adjudicationof guilty and

place the defendant on community supervision. The purpose of the statute is
to   allow the trial court the flexibilityto defer adjudicationfor deserving

defendants when in its opinion the best interest of society and the defend

will be served. REED v. State, 644 S.W.2d 479      (Tex. Crim. App. 1983)
        If we look to the proof offered at punishment to determine whether

Counsel failed to prove a defendant’s eligibility,the answer is in the

affirmative. Failure to offer evidence to prove eligibilityfor probation is

ineffective assistance of counsel San Roman V. State, 681 S.W.2d 872       (Tex.
App.~—El Paso 1984, pet. ref’ (1)
          Defense counsel asks the defendant, “[w]hat would you like the

Judge to do?” R.R. 39 To wit the Defendant responds, “I would just ask the
Judge to be lenient with me.” R.R. 40 Defense Counsel passes the witness at
this point and asks defendant no further questions during the hearing
regarding probation. Defense counsel failed to elicit testimony for the court
that the Defendant was not a convicted felon and had never been on a

straight or deferred probation. There was no question asked of the
defendant’s knowledge of probation conditions or if he would be able to

abide by the courts restrictions if placed on probation. Neither does the

record reflect defendant’s desire for community supervision, or how a felony

conviction would affect his future chances at employment and education.

       Testimony that a defendant has never “been convicted of any felonies
in this or any other state” is sufficient to prove his eligibilityfor probation

because it encompasses the fact that he has never been finally convicted of a

felony and that he has never been placed on felony probation. Mansfield v.
State, 306 S.W.3d 773 (Tex. Crim. App. 2010) An attorney is ineffective
where he fails to prove a defendant’s eligibilityfor probation where the facts

show thatthe fact finder would have considered it. Ware v. State, 875

S.W.2d 432 (Tex.App.-Waco1194, pet. Ref d) Here in the instant case,

there is   a   failure to establish probation eligibility.

       There is     a   constitutional right to counsel at sentencing. Glover v.

United States, 531 US 198,203 (2001) The prosecutor and defense counsel

function as advocates during the sentencing proceeding so thatthe
sentencing authoritywill engage in a balanced and thorough effort to
determine the right sentence within the range of prescribedpenalties. The

sentencing process consists of weighing mitigating and aggravating factors,
and making adjustments in the severity of the sentence consistent with this

calculus. Vela V. Estelle, 708 F.2d at 954

         In this case,   appellant’s trial counsel presented no mitigating factors
for the judge to balance against the aggravating factors presented by the

State.   Appellant’s trial counsel offered no evidence of mitigating factors,
despite the availabilityof such mitigation evidence filedwiththe clerk.        We

can   read from the record that in attendance at the punishment hearing was

appellants mother, and appellants counsel never called any witness or asked
any question of appellant thatwould rebut the states      argument of jail time.

Any evidence would have provided some counterweight to evidence of bad
character, which was in fact received by the judge during the punishment

hearing. The judge had no character evidence to consider that may have
humanized the defendant and offset the State’s recommendation of four

years in prison.

         The court should find that counsel’s lack of mitigation would have in

fact favorably influencedthe judge in assessment of punishment. Counsel’s
lack of focus at the punishment phase deprived appellant of the possibilityof

bringing out even a single mitigating factor. Mitigating evidence would have
been admissible. The judge could have considered it and might have been

influenced by it.

        It is also   a   well settled that an attorney has a professional duty to

present all availableevidence and arguments to support the defense of his
client. Thomas v. State, 550 S.W.2d 64, 68 (Tex.Cr.App.1977)Ineffective

assistance of counsel has been found when defense counsel summarizesthe

evidence in a manner favorable to the State. Craig V. State, 847 S.W.2d 434

(Tex. App.——El Paso 1993, no pet.) A defense lawyer's obligations in
connection with sentencing, is to do what is         legally and ethicallypermissible
to   achieve for the client the most lenient sentence possible. The advantage of

making an argument for deferred probation in making a plea for leniency for
a   defendant with no prior felony convictions should not be difficult to

recognize as a valid plea to the court where the State has asked the court for
four years incarceration and that four years incarceration has already been

rejected while serving months in custody. The record here reflects that
defense counsels suggests the opposite of leniency towards his client. In the

is case where the punishment range is a between two and ten years




                                              10
incarceration, a defense counsels objective should be to secure a deferred
probation at sentencing taking into consideration the time already spent
incarcerated by his client. In this case the client was deferred and straight

probation eligible with more than 90 days served in Harris County Jail yet
appellant’s counsel filrthersthe States interests, arguing to the court, inter
alia:

        I’m going to suggest to the Court that some time in jail is necessary
        for Mr. Norris in order to for the Court to impress on him the fact
                                   —




        that when this Court tells you something,it means it. And I’m not
        talking about a short term of county jail. R.R. 48
        If defense counsel is not talking about a short term of county jail,

reason   brings the inference of a long term in jail. The court in Strickland
stated the defendant must also show thatthere is a reasonable probability

that, but for counsels unprofessional errors, the result of the proceeding
would have been different. The possibilityof a different result could have

been bolstered by counsel    focusing on probation eligibilityand advocating
for deferred probation rather thanjail time.   Directly after defense counsels
plea to the court for jail time, the court addresses the Defendant, inter alia:
              Now, you know that you’re facing me in this court with two
        felony offenses. And regardless of who starts it, you know you’re not
        supposed to have contact withthis person. And I wouldn’t have found
        out about it, but for this hearing right now. Does that mean I can trust
        you to be on probation, to follow my orders to make sure not another




                                        11
           person while you’re on my probation with my name that allows you
                  —




           walk free will be hurt, injured, scared, afraid or whatever?
                      —




                  And the answer to the question is can I trust you to be on
           probation, to follow my orders. Just based on this history alone and
           you’re not following my order, mine, to not have any contact withthat
           person, the answer is no.
                  So, I’m going to find you guilty of both of these offenses. And
           I’m going to assess your punishment in each of theses cases at four
           years in the Texas Department of criminal Justice Institutional
           Division. R.R 50-51


           The circumstances of the plea and the goal of defense counsel should

be to achieve the best possible outcome considering the circumstances given.

This record glaringlyreflects thattrial counsel failed to advance any form of

mitigation during this punishment hearing, or in any other way make use of
mitigation evidence available to him or call any witness available to him. As
is   so   often the case in those situations where any defense,   or   for that matter

any viable defense, has not been raised, the circumstances may reflect that

the attorney may not have been familiarwith the case or, if he is, has not

adequately investigated the facts of the matter. Here, there is also a lack of
advocacy and advancing the defendant’s best interests. Viewed as a whole
and cumulative of mitigation evidence presented originally,raised a

reasonable probabilitythatthe result of the sentencing proceeding would

have been different if competent counsel had presented and explained the




                                          12
significance of all the available evidence and made the proper argument to
the court   advocating for a probated sentence. Trial counsel never inquired
into the defendant’s probation eligibilityor desire to be placed on deferred

probation. The record is void of any testimony elicited for the defendant or
any available witness present in the courtroom through counsel any

mitigating factors that may have weighted against the overwhelming amount
of aggravating factors introduced to the Court through the victims testimony.

The record is clear that defense counsel asks the court for a prison sentence,

as   does the State.




                                       13
                            PRAYERFOR RELIEF



        WHEREFORE, PREMISES CONSIDERED, Appellant prays thatthis
Honorable Court rule in favor of Appellant and reverse and remand this case

to   the trial court to determine which case should be vacated as a result of

ineffective assistance of counsel. Appellant prays that his Court reverse the

convictions and render a judgment of acquittal and remand this case for a

new    punishment hearing and approve the appeal. Appellant prays for general
relief, and any reliefthat may be granted by law or in equity.

                                         Respectfully Submitted,
                                               /

                                             yngman Stevens Jr
                                         Attorney for Appellant




                                        14
                       CERTIFICATE OF SERVICE

      I, Syngman Stevens, Jr, do hereby certify that a true and correct copy
of the foregoing Appellant’s Brief was delivered to opposing counsel at the

time of the filing on the 8”’ day of September 2015, by e—file transmission

pursuant to local practice. Further, I certify that a copy of the foregoing

Appellant’s Brief was, this day mailed to Appellant.

                                        Respectfillly Submitted,


                                        S yngman Stevens Jr          :-N.   .




                                        Attorney for Appellant




                                       15
                   CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P.   9.4, I hereby certify thatthis Appellate
Brief contains less than 4,500 words. This is   a    computer-generated
document created in Microsoft Word, using       14-point typeface for all text,
except for footnotes, which are in 12-point typeface. In making this
certificate of compliance, I am relying on the word count provided by the

software used to prepare the document.



                                       Respectfully Submitted,
                                                    ”“f,;§I.'/

                                       S    man          Stevens Jr
                                       Attorney for Appellant
