                                                                           PD-1507-14
                                                          COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
                                                       Transmitted 12/22/2014 1:33:13 PM
                                                         Accepted 12/29/2014 2:07:17 PM
                                                                            ABEL ACOSTA
                      CAUSE NO. PD-1507-14                                          CLERK

       COURT OF APPEALS CAUSE NO. 11-12-00124-CR

     IN THE COURT OF CRIMINAL APPEALS OF TEXAS




                    CHE PATRICE HUTCHINSON

                                           APPELLANT/PETITIONER

                              VS.

                      THE STATE OF TEXAS

                                          APPELLEE



    REPLY TO PETITION FOR DISCRETIONARY REVIEW




                                    ELISHA BIRD
                                    35th Assistant District Attorney
                                    State Bar No. 24060339
                                    200 S. Broadway,
                                    Brownwood, TX 76801
                                    Telephone: (325) 646-0444
December 29, 2014                   Fax: (325) 643-4053
                                        TABLE OF CONTENTS


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

INDEX OF AUTHORITIES.................................................................................... iii

LIST OF PARTIES ...................................................................................................iv

STATEMENT OF THE CASE .................................................................................. 2

REPLY ISSUE ONE.................................................................................................. 2

REPLY ISSUE TWO ................................................................................................. 2

STATEMENT OF FACTS ........................................................................................ 3

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

ARGUMENT
REPLY ISSUE ONE.................................................................................................. 4
REPLY ISSUE TWO ................................................................................................. 8

CONCLUSION ........................................................................................................ 10

CERTIFICATE OF SERVICE ................................................................................ 11

CERTIFICATE OF COMPLIANCE ....................................................................... 11




                                                          ii
                                      INDEX OF AUTHORITIES


STATUTES

Tex. R. App. P. 66.1................................................................................................... 8

Tex. R. App. P. 66.3................................................................................................ 5,8



CASES

Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) ................................... 5,6

Ex parte LaHood, 401 S.W.3d 45 (Tex. Crim. App. 2013) ...................................... 6

Farrell v. State, 864 S.W.2d 501 (Tex. Crim. App. 1993) .................................... 8,9

Frangias v. State, 392 S.W.3d 642 (Tex. Crim. App. 2013) ................................. 5,6

Hutchinson v. State, No. 11-12-00124-CR, 2014 WL 2957398 (Tex. App.—
Eastland June 26, 2014, pet. filed) ...................................................................... 2,6,9

Hutchinson v. State, No. 11-12-00124-CR, 2014 WL 5529150 (Tex. App.—
Eastland Oct. 9, 2014, pet. filed) ........................................................................... 2,9

Roldan v. State, 739 S.W.2d 868 (Tex. Crim. App. 1987) ....................................... 5

Strickland v. Washington, 466 U.S. 668 (1984) ....................................................... 6

Wiggins v. Smith, 539 U.S. 510 (2003) .................................................................. 5,6




                                                           iii
                                  LIST OF PARTIES
Pursuant to Rule 74(a) of the Texas Rules of Appellate Procedure the State lists the
names and addresses of all parties to the Trial Court’s final judgment and their trial
counsel in the trial court.
CHE PATRICE HUTCHINSON
C/O Texas Department of Criminal Justice

Trial Counsel
ROBERT MAURER
Attorney at Law
115 East Travis Street
San Antonio, Texas 78202

Appellate Counsel
CONNIE J. KELLEY
Attorney at Law
1108 Lavaca #110-221
Austin, Texas 78701

State of Texas

Trial Counsel
SAM C. MOSS
Assistant District Attorney

Appellate Counsel
ELISHA BIRD
Assistant District Attorney
35th District Attorney’s Office
200 S. Broadway
Brownwood, TX 76801




                                          iv
                     CAUSE NO. PD-1507-14

         COURT OF APPEALS CAUSE NO. 11-12-00124-CR

        IN THE COURT OF CRIMINAL APPEALS OF TEXAS




                 CHE PATRICE HUTCHINSON

                                        APPELLANT/PETITIONER

                             VS.

                   THE STATE OF TEXAS

                                       APPELLEE



       REPLY TO PETITION FOR DISCRETIONARY REVIEW




TO THE HONORABLE COURT OF CRIMINAL APPEALS:




                              1
                         STATEMENT OF THE CASE

      Appellant pled guilty to the offense of Delivery of a Controlled Substance in

an amount that was greater than 4 grams but less than 200 grams. (R.R. Vol. 2, p.

8).

      A punishment hearing was held on February 16, 2012 and at that time, the

trial judge sentenced Appellant to 50 years incarceration. (R.R. Vol. 2, pp. 1, 303).

Appellant filed an appeal in the Eleventh Court of Appeals. The Eleventh Court of

Appeals affirmed the 50 year sentence. Hutchinson v. State, No. 11-12-00124-CR,

2014 WL 2957398, at *10 (Tex. App.—Eastland June 26, 2014, pet. filed).

      Appellant then filed a motion for rehearing. Hutchinson v. State, No. 11-12-

00124-CR, 2014 WL 5529150, at *1 (Tex. App.—Eastland Oct. 9, 2014, pet.

filed). The Court of Appeals denied Appellant’s motion for rehearing. Id. at *3.


                               REPLY ISSUE ONE

THE COURT OF APPEALS DECISION DID NOT CONFLICT WITH ANY
APPLICABLE DECISIONS OF THIS COURT OR THE SUPREME COURT.


                              REPLY ISSUE TWO

APPELLANT HAS RAISED A NEW ISSUE IN HIS PETITION FOR
DISCRETIONARY REVIEW AND THEREFORE, THE PETITION SHOULD
NOT BE GRANTED ON THIS ISSUE




                                         2
                              STATEMENT OF FACTS

         Over the course of four to five years, Appellant distributed over a pound of

methamphetamine obtained from the drug cartel and Mexican Mafia into Brown

County in exchange for about $3,500 a month. (R.R. Vol. 3, pp. 111-19, 230-32).

In addition to distributing methamphetamines, Appellant also sold marijuana,

Xanax, crack cocaine, OxyContin, hydrocodone, codeine, and high-grade

marijuana. (State’s Exhibit 21, R.R. Vol. 5, p. 27; R.R. Vol. 3, pp. 74-105, 120-

21). In Appellant’s own words, he had either directly sold or been the middle man

in the sale of marijuana “a thousand times.” (R.R. Vol. 3, p. 125). He also sold

approximately half a pound of crack cocaine.             (R.R. Vol. 3, pp. 126-27).

Witnesses testified that Appellant had a very disrespectful, above-the-law type of

attitude about getting caught. (R.R. Vol. 3, pp. 99, 178-80, 300) (among other

testimony, Appellant indicated through text messages that “Barney Fife can’t get

me.”).

         On November 16, 2010, Appellant sold methamphetamines to a confidential

informant. (State’s Exhibit #2, R.R. Vol. 3, pp. 25-40). Appellant was arrested

almost a year later as part of a drug roundup held in Brown County. (R.R. Vol. 2,

pp. 43-44).




                                            3
                        SUMMARY OF THE ARGUMENT

       Current controlling precedent from this Court and the Supreme Court simply

require that a decision not to investigate be a reasonable professional judgment.

The Court of Appeals properly considered the reasonableness of the decision made

by Appellant’s trial counsel not to have the controlled substance reweighed.

Requiring counsel to consult with an independent expert before making such a

decision is not controlling precedent. To consider such an issue would be an

expansion of the current analysis required under the ineffective assistance doctrine

related to failure to investigate.

       No decision by the Court of Appeals exists for review under Issue Two as

Appellant never raised the argument to the Eleventh Court of Appeals that trial

counsel’s conduct was deficient for failing to follow his client’s express wishes

about having the controlled substance reweighed.



                                 REPLY ISSUE ONE

       Appellant has not identified any question of state or federal law decided by

the Court of Appeals in this case that would conflict with the applicable decisions

of the Court of Criminal Appeals or the Supreme Court of the United States.

       Appellant claims in his brief that the Eleventh Court of Appeals decided “an

important question of federal constitutional law in a way that conflicts” with


                                         4
applicable decisions of higher courts. See Petition for Discretionary Review, p. 3.

However, before a petition for discretionary review should be granted, Appellant

should identify an adequate reason for review. Merely claiming that the lower

court’s decision conflicts with Court of Criminal Appeals and Supreme Court

precedent is not sufficient. See Roldan v. State, 739 S.W.2d 868, 869 (Tex. Crim.

App. 1987) (holding that insufficient facts supported the Petitioner’s reasons for

requesting review); See Tex. R. App. P. 66.3(c).

      Appellant cites to Wiggins v. Smith, Ex parte Briggs and Frangias v. State as

the cases that best represent the federal constitutional law at issue in this case. See

Petition for Discretionary Review, pp. 4-6. Therefore, the claim presented in

Appellant’s Petition for Discretionary Review is fundamentally that the Court of

Criminal Appeals decision in this case conflicts with Wiggins, Ex parte Briggs, and

Frangias.

      However, the Court of Appeals decision in this case does not conflict with

any of those cases. None of the cited cases, nor any other case law, create an

absolute requirement that defense counsel investigate every claim that could

possibly be presented for a defendant. See Wiggins v. Smith, 539 U.S. 510, 533

(2003) (“…we emphasize that Strickland does not require counsel to investigate

every conceivable line of mitigating evidence no matter how unlikely the effort

would be to assist the defendant…”).


                                          5
       Instead, Supreme Court case law recognizes that “strategic choices made

after less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.”

Wiggins, 539 U.S. at 521 (quoting Strickland v. Washington, 466 U.S. 668, 690-91

(1984)); Ex parte Briggs, 187 S.W.3d 458, 466 (Tex. Crim. App. 2005) (quoting

Wiggins, 539 U.S. at 521-22). See Frangias v. State, 392 S.W.3d 642, 654 (Tex.

Crim. App. 2013) (recognizing that the “abandonment of alternative ways of

implementing a particular trial strategy is reasonable” when reasonable efforts

have been made to pursue those alternatives); Ex parte LaHood, 401 S.W.3d 45, 50

(Tex. Crim. App. 2013) (“Counsel has a duty in every case to make… a reasonable

decision that an investigation is unnecessary.”).

       The Eleventh Court of Appeals decision in this case recognized that the

Court should look at the reasonableness of the defense attorney’s judgment in

deciding to limit the scope of his pretrial investigation. Hutchinson v. State, No.

11-12-00124-CR, 2014 WL 2957398, at *4 (Tex. App.—Eastland June 26, 2014,

pet. filed).     The Eleventh Court properly looked at the totality of the

circumstances1 to consider the reasonableness Id.



1
 The Court of Appeals considered the possibility of additional charges being brought against
Appellant, the evidence of the weight of the methamphetamine with packaging and then without
packaging, and the fact that the methamphetamine had already been weighed twice. See
Hutchinson v. State, No. 11-12-00124-CR, 2014 WL 2957398, at *4 (Tex. App.—Eastland June
26, 2014, pet. filed).
                                             6
      In his Amended Brief for Appellant filed in the Eleventh Court of Appeals

and his Petition for Discretionary Review, Appellant relies on the fact that the

defense attorney did not consult with a defense expert in order to conclude that the

defense attorney’s actions were not reasonable. See Amended Brief for Appellant,

p. 17; Petition for Discretionary Review, pp. 4-5. However, no case law indicates

that consultation with an expert is required in order to make a reasonable

professional judgment.

      Absent any case law indicating that consultation with an expert is required to

make a reasonable professional judgment, Appellant is incorrect in claiming that

the Court of Appeals decided this issue in a manner that conflicted with applicable

decisions of the Court of Criminal Appeals and the Supreme Court. The Eleventh

Court of Appeals cited the correct controlling legal principles and engaged in a

thoughtful analysis of those legal principles.

      The mere fact that Appellant disagrees with that application does not mean

that the decision conflicts with controlling case law. Nor does Appellant’s desire

for this Court to expand the reasonableness prong of an ineffective assistance

analysis to require consultation with an expert indicate that the Court of Appeals

incorrectly applied controlling precedent.

      Therefore, this Court should deny Appellant’s petition for discretionary

review.


                                          7
                              REPLY ISSUE TWO

      In Issue Two, Appellant raises a new issue that was never presented to the

Court of Appeals and that the Court of Appeals never decided.            Appellant’s

primary argument in Issue Two is that his trial counsel’s performance was

deficient for failing to follow his client’s express wishes about having the

substance reweighed. See Petition for Discretionary Review, pp. 6-9.

      Examination by this Court in response to a petition for discretionary review

is limited to reviewing the actual decision of the Court of Appeals. Farrell v.

State, 864 S.W.2d 501, 502 (Tex. Crim. App. 1993) (en banc). Rule 66.1 of the

Rules of Appellate Procedure limit this Court’s jurisdiction to only review of a

court of appeals’ “decision.” Tex. R. App. P. 66.1.

      Additionally, Appellant has requested review in Issue Two under Rule

66.3(b) of the Rules of Appellate Procedure.          See Petition for Discretionary

Review, p. 6. Rule 66.3(b) by its own terms also limits review to decisions of the

court of appeals. Tex. R. App. P. 66.3(b) (“…the following will be considered by

the Court in deciding whether to grant discretionary review… whether a court of

appeals has decided an important question of state or federal law that has not been,

but should be, settled by the Court of Criminal Appeals…” emphasis added).




                                         8
       In order to make sure that only “decisions” are reviewed, parties must

provide the court of appeals with the first opportunity to resolve the issues

associated with the appeal. Farrell, 864 S.W.2d at 503.

       The Eleventh Court of Appeals did not make any decision on whether an

attorney may refuse to conduct an independent pretrial investigation against a

defendant’s express wishes. See Hutchinson v. State, No. 11-12-00124-CR, 2014

WL 2957398, at *4 (Tex. App.—Eastland June 26, 2014, pet. filed); Hutchinson v.

State, No. 11-12-00124-CR, 2014 WL 5529150, at *2 (Tex. App.—Eastland Oct.

9, 2014, pet. filed).

       Nor did Appellant raise this issue for the Eleventh Court of Appeals to

consider. Although Appellant did raise an ineffective assistance claim against his

trial counsel, that claim was grounded only in the reasonableness of the strategic

decision not to have the substance reweighed. See Amended Brief for Appellant,

pp. 15-20. Appellant never structured his argument to present a claim that counsel

was ineffective because counsel did not follow his client’s wishes. See Amended

Brief for Appellant, pp. 15-20. Although there is mention of Appellant’s desire to

have the substance reweighed, that reference is used to support a reasonableness

analysis only. See Amended Brief for Appellant, p. 15 (“‘The reasonableness of

counsel’s actions may be determined or substantially influenced by the defendant’s

own statements or actions.’”).


                                        9
      Additionally, Appellant never presented any arguments related to Florida v.

Nixon or Professors Dix & Schmolesky in relation to his ineffective assistance for

failure to investigate claim before the lower court.        See Amended Brief for

Appellant, pp. iv, vi, 15-20; Motion for Rehearing, p. 3.

      Therefore, based on both Appellant’s failure to specifically raise this

argument in front of the Eleventh Court of Appeals and the lack of a decision by

the Eleventh Court of Appeals to review on this issue, this Court should deny

Appellant’s petition for discretionary review.



                                  CONCLUSION

      The State respectfully requests that the Court of Criminal Appeals deny

Appellant’s petition for discretionary review on both issues.



                                       Respectfully Submitted,

                                       /S/ELISHA BIRD
                                       ELISHA BIRD, Assistant District Attorney
                                       State Bar No. 24060339
                                       200 S. Broadway, Brownwood, TX 76801
                                       Tel: (325) 646-0444 Fax: (325) 643-4053




                                         10
                         CERTIFICATE OF SERVICE

      The undersigned certifies that a true and correct copy of the foregoing Reply
to Petition for Discretionary Review was emailed to Connie J. Kelley at
warrentucker@grandecom.net on the 22nd day of December, 2014.

                                      /S/ELISHA BIRD
                                      ELISHA BIRD




                      CERTIFICATE OF COMPLIANCE

       This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
2,343 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).




                                      /S/ELISHA BIRD
                                      ELISHA BIRD




                                        11
