                                                                                   ACCEPTED
                                                                               03-14-00528-CR
                                                                                       6327823
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                          8/3/2015 12:24:00 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                     No. 03-14-00528-CR

                             In the                          FILED IN
                                                      3rd COURT OF APPEALS
        Court of Appeals for the Third District of Texas AUSTIN, TEXAS
                           at Austin                  8/3/2015 12:24:00 PM
               ___________________________              JEFFREY D. KYLE
                                                            Clerk
                      No. 12-0465-K277
              In the 368th Judicial District Court
                  Williamson County, Texas
              ____________________________

             JAMES ALAN WEATHERFORD
                        Appellant
                           v.
                 THE STATE OF TEXAS
                        Appellee
             _____________________________

STATE’S BRIEF IN RESPONSE TO APPELLANT’S PRO SE BRIEF
             _____________________________

                                                               Jana Duty
                                                        District Attorney
                                               Williamson County, Texas

                                                          John C. Prezas
                                                State Bar No: 24041722
                                              Assistant District Attorney
                                          405 Martin Luther King, Box 1
                                              Georgetown, Texas 78626
                                                         (512) 943-1234
                                                   (512) 943-1255 (fax)
                                                      jprezas@wilco.org
                      IDENTIFICATION OF THE PARTIES

       Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list
of the names of all interested parties follows:

Presiding Judge at Trial

    The Honorable Rick Kennon, 368th Judicial District Court, Williamson
     County, Texas.

Attorneys for the State

    Ms. Jana Duty, District Attorney for Williamson County, 405 Martin Luther
     King, Georgetown, Texas 78626.
    Ms. Elizabeth Whited (pretrial/trial), Former Assistant District Attorney for
     Williamson County, 405 Martin Luther King, Georgetown, Texas 78626.
    Mr. Danny Smith (pretrial/trial), Assistant District Attorney for Williamson
     County, 405 Martin Luther King, Georgetown, Texas 78626.
    Mr. John C. Prezas (appeal), Assistant District Attorney for Williamson
     County, 405 Martin Luther King, Georgetown, Texas 78626.
    Mr. Daniel Sakaida (appeal), Intern/Special Prosecutor/Postgraduate Fellow
     for the Williamson County District Attorney, 405 Martin Luther King,
     Georgetown, Texas 78626.

Attorneys for the Defendant

    Mr. Daniel Wannamaker (trial), Wannamaker & Assosiates, P.O. Box 2271,
     Austin, Texas, 787681.
    Mr. Dal Ruggles (appeal), Law Offices of Dal R. Ruggles, 1103 Nueces,
     Austin, Texas, 78701.

Defendant/Appellant Pro Se

    Mr. James Weatherford, TDCJ # 01953853, Middleton Unit, 13055 F.M.
     3422, Abilene, Texas 79601.




                                        ii
                                           TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES .................................................................. ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.................................................................................... iv
STATEMENT OF THE CASE ..................................................................................1
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................3
REPLY TO ISSUE FOR REVIEW ONE ..................................................................3
PRAYER ....................................................................................................................6
CERTIFICATE OF COMPLIANCE .........................................................................7
CERTIFICATE OF SERVICE ..................................................................................7




                                                            iii
                                 INDEX OF AUTHORITIES


State Cases

Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992) ..................................... 4, 6

Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980) ......................................... 5

Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997)..................................... 4

Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997) ....................................... 5

Ex parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987)......................................... 3

Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) ................................. 4

Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) .................................. 3

Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998)....................................... 5

Kober v. State, 988 S.W.2d 230 (Tex. Crim. App. 1999)......................................... 4

Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) ..................................... 5

Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) .......................................... 4

Strickland v. Washington, 466 U.S. 668 (1984) ................................................3, 4, 6

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ....................................... 4




                                                 iv
TO THE HONORABLE COURT OF APPEALS:

                          STATEMENT OF THE CASE

      Appellant pleaded guilty in an open plea to numerous counts of Possession

of Child Pornography in two different cause numbers. Appellant appealed this

conviction, and his appellate counsel has since filed an Anders brief in this case

No. 12-0465-K368 asserting that there are no meritorious grounds for this appeal.

Appellant himself filed a Pro Se brief on July 14, 2015 alleging that his trial

counsel was constitutionally ineffective. This brief is a response to Appellant’s Pro

Se filing.



                             STATEMENT OF FACTS

      Appellant’s Pro Se brief outlines a claim for ineffective assistance of

counsel, and attempts to bolster that argument with allegations regarding acts and

statements attributable to Appellant’s trial counsel. Specifically, Appellant alleges

that his attorney bullied him into entering an open guilty plea, partly by relaying to

Appellant that his daughter may be called to testify and “humiliated” at a trial.

Appellant also claims he was under the impression that, even after pleading guilty,

the trial court judge would determine his guilt or innocence, and that he was not

informed the trial would only be a punishment phase.




                                          1
      However, none of the facts asserted by Appellant have proof in the record

which is now before the court. The motion for new trial, filed August 21, 2014 by

appellant only claimed that the verdict was contrary to the law and the evidence.

C.R. vol. 1 pp. 104-106.

      Before pleading guilty, the trial court and Appellant had the following

exchange:

      THE COURT: Okay. And I understand that you have decided to
           waive your right to a jury trial; is that right?
      THE DEFENDANT: Yes, sir, Your Honor.
      THE COURT: Okay. And, understand, I have paperwork in front of
           me, as well, and both of these cases indicates that you're going
           to enter a plea and then we're going to have a sentencing
           hearing in front of me?
      THE DEFENDANT: Yes, sir, Your Honor.
      THE COURT: Is that what you want to do?
      THE DEFENDANT: Yes, sir, Your Honor.
      THE COURT: Okay. So we're going to go through all these this
           morning. And you understand that if you enter your plea today
           and I accept that plea, that you can't take that back; you can't
           later say, "Oh, I changed my mind and I want to go to a jury
           trial now." Do you understand that?
      THE DEFENDANT: Yes, sir, Your Honor.

R.R. vol. 4 p. 5-6. Following this, Appellant twice in this cause number

acknowledged that he understood that by pleading guilty he was waiving his right

to a trial by jury, and instead moving to a punishment hearing. R.R. vol. 4 pp. 9,

11. Appellant also affirmed that he was not coerced or threatened into entering his

plea of guilty. R.R. vol. 4 pp. 10, 12.


                                          2
                       SUMMARY OF THE ARGUMENT

      Because Appellant’s claim of ineffective assistance of trial counsel has no

basis in the record on appeal, this Court should permit Dal Ruggles to withdraw as

counsel and find that the appeal is indeed frivolous.



       REPLY TO INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

      Texas has adopted the Strickland standard for cases involving allegations of

constitutionally ineffective assistance of counsel. See Ex parte Wilson, 724 S.W.2d

72, 73 (Tex. Crim. App. 1987); Strickland v. Washington, 466 U.S. 668 (1984).

This standard requires that Appellant prove both i) that counsel’s conduct was

deficient as falling below an objective standard of reasonableness, and ii)

prejudice, that there is a “reasonable probability” the result of the trial would have

been different but for counsel’s deficient performance. Hernandez v. State, 988

S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999). Specifically, when a defendant is

claiming ineffective assistance of counsel that has induced him to enter a plea of

guilty, the Strickland standard requires the defendant to show a reasonable

probability that “but for defense counsel’s errors,” the defendant “would not have

pleaded guilty and would have insisted on going to trial.” Kober v. State, 988




                                          3
S.W.2d 230, 232 (Tex. Crim. App. 1999); Ex parte Morrow, 952 S.W.2d 530, 536

(Tex. Crim. App. 1997).

      An appellate court should review the totality of an attorney’s representation,

and the particular circumstances of each case in evaluating such claims. Thompson

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Judicial scrutiny of trial

counsel’s decisions is “highly deferential,” and must include a strong presumption

that trial counsel made all significant decisions in the exercise of a reasonable trial

strategy, and the Appellant must overcome this presumption to establish a claim of

ineffective assistance of counsel. See Delrio v. State, 840 S.W.2d 443, 445 (Tex.

Crim. App. 1992); Strickland, 466 U.S. at 689. A court should generally decline to

find trial counsel ineffective absent an opportunity to explain his actions.

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

      The burden for proving an ineffective assistance of counsel claim by a

preponderance of the evidence rests on the Appellant, and failure to show either

prong will defeat a claim. Thompson, 9 S.W.3d at 813; Smith v. State, 286 S.W.3d

333, 340 (Tex. Crim. App. 2009). Naturally then, ineffective assistance of counsel

is difficult to prove on direct appeal absent a hearing, such as on a Motion for New

Trial, which would provide the reviewing court with a record. Indeed, the Court of

Criminal Appeals has repeatedly held that the appropriate or most preferred means

by which a defendant should raise a claim of ineffective assistance of counsel is by

                                          4
way of a post-conviction writ of habeas corpus. See, e.g., Rylander v. State, 101

S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Jackson v. State, 973 S.W.2d 954,

957 (Tex. Crim. App. 1998); Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim.

App. 1997) (“in most ineffective assistance claims, a writ of habeas corpus is

essential to gathering the facts necessary to adequately evaluate such claims”); Ex

parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980) (“Experience has taught

us that in most instances where the claim of ineffective assistance of counsel is

raised, the record on direct appeal is simply not in a shape, perhaps because of the

very alleged ineffectiveness below, that would adequately reflect the failings of

trial counsel”).

      In this case, Appellant has pointed to no evidence in the record to support his

claims that he was coerced into pleading and did not understand the consequences.

Even the Motion for New Trial filed on filed August 21, 2014 does not allege

ineffective assistance of counsel, and no facts to that end were developed. See C.R.

vol. 1 pp. 104-106. Further, the facts that are in the record indicate that Appellant

was properly admonished, and that he was not being coerced into pleading.

Appellant was properly admonished of the consequences of his plea of guilty on

the record, and affirmed that he understood what rights he was waiving. R.R. vol. 4

p. 5-12. Contrary to Appellant’s claims that he was not aware pleading guilty




                                         5
would put the trial in a punishment phase, the Court did directly admonish

Appellant multiple times to that effect prior to his plea. R.R. vol. 4 p. 5-6.

      Because the record in this case does not support Appellant’s claims, and the

facts in the record as it currently stands would in fact tend to show the opposite, he

has not disrupted the “highly deferential” strong presumption that his trial counsel

acted made all significant decisions in the exercise of a reasonable trial strategy.

See Delrio, 840 S.W.2d at 445; Strickland, 466 U.S. at 689. Therefore, Appellant

has not met his burden to show ineffective assistance of counsel, and his claims

must fail on direct appeal.



                                      PRAYER

      Wherefore, the State respectfully requests that this Court permit Dal Ruggles

to withdraw as appellate counsel in this case and find that the appeal in this cause

is indeed frivolous.




                                           6
                                                         Respectfully submitted,


                                                                     Jana Duty
                                                               District Attorney
                                                      Williamson County, Texas



                                                               /s/ John C. Prezas
                                                                 John C. Prezas
                                                        State Bar No: 24041722
                                                      Assistant District Attorney
                                                  405 Martin Luther King, Box 1
                                                      Georgetown, Texas 78626
                                                                  (512) 943-1234
                                                           (512) 943-1255 (fax)
                                                              jprezas@wilco.org

                       CERTIFICATE OF COMPLIANCE
     I certify that, after allowable exclusions, the State’s brief contains 1,304
words in compliance with Rule 9.4 of the Texas rules of Appellate Procedure.

                                           __/s/ John C. Prezas______________
                                           John C. Prezas


                         CERTIFICATE OF SERVICE

I hereby certify that on August 8, 2013, I electronically filed the foregoing
document with the clerk of the court for the Texas Court of Criminal Appeals,
using the efile.txcourts.gov system. Via that system, a “Notice of Electronic
Filing” was sent to Appellee’s appellate attorney of record, Dal Ruggles at
dal@ruggleslaw.com. A copy was also sent by certified mail directly to Appellant,
James Weatherford, TDCJ # 01953853, Middleton Unit, 13055 F.M. 3422,
Abilene, Texas 79601.

                                           _/s/ John C. Prezas_______________
                                           JOHN C. PREZAS


                                       7
