                                                                                  ACCEPTED
                                                                             12-14-00126-CR
                                                                 TWELFTH COURT OF APPEALS
                                                                              TYLER, TEXAS
                                                                         1/7/2015 4:57:01 PM
                                                                                CATHY LUSK
                                                                                      CLERK

                    No. 12-14-00126-CR

                                                            FILED IN
                                                     12th COURT OF APPEALS
         IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                   TYLER, TEXAS                       1/7/2015 4:57:01 PM
                                                          CATHY S. LUSK
                                                              Clerk

                 CHRISTOPHER WILEY

                               Appellant,

                              v.

                  THE STATE OF TEXAS

                                   Appellee



On Appeal from the 241st District Court of Smith County, Texas
                Trial Cause No. 241-1239-13




         ORAL ARGUMENT NOT REQUESTED


                          Austin Reeve Jackson
                          Texas Bar No. 24046139
                          112 East Line, Suite 310
                          Tyler, TX 75702
                          Telephone: (903) 595-6070
                          Facsimile: (866) 387-0152
                   IDENTITY OF PARTIES AND COUNSEL


Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702

Trial Counsel:
Don Davidson
P.O. Box 1105
Tyler, TX 75710

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




                                            ii
                                          TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE....................................................................................... 2
ISSUES PRESENTED ................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................................. 4
ARGUMENT .................................................................................................................. 4

    I.      APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
            COUNSEL AT PUNISHMENT .................................................................... 4
            Relevant Facts ................................................................................................... 5
            The State's Argument Was Improper ................................................................ 6
            But For Counsel's Failure to Object, The Result May Have Been Different ... 7

CONCLUSION AND PRAYER .................................................................................... 8
CERTIFICATE OF SERVICE ....................................................................................... 9
CERTIFICATE OF COMPLIANCE .............................................................................. 9




                                                             iii
                                     INDEX OF AUTHORITIES


UNITED STATES SUPREME COURT:

Strickland v. United States,
  466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984) .................................. 4, 5


UNITED STATES FIFTH CIRCUIT COURT OF APPEALS:

Lyons v. McCotter,
 770 F.2d 529 (5th Cir. 1985) ......................................................................... 5


TEXAS COURT OF CRIMINAL APPEALS:

Bone v. State,
 77 S.W.3d 828 (Tex.Crim.App. 2002) .......................................................... 7

Burnett v. State,
 88 S.W.3d 633 (Tex.Crim.App. 2002) .......................................................... 8

Clark v. State,
 643 S.W.2d 723 (Tex.Crim.App. 1982) ........................................................ 8 n.1

Garcia v. State,
 57 S.W.3d 436 (Tex.Crim.App. 2001) .......................................................... 5

Hernandez v. State,
 366 S.W.2d 575 (Tex.Crim.App. 1963) ........................................................ 7

Hernandez v. State,
 988 S.W.2d 70 (Tex.Crim.App. 1999) .......................................................... 4

Mata v. State,
 226 S.W.3d 425 (Tex.Crim.App. 2007) ........................................................ 7

Miniel v. State,
 831 S.W.2d 310 (Tex.Crim.App. 1992) ........................................................ 5


                                                        iv
TEXAS COURT OF CRIMINAL APPEALS (CON’T):

Moore v. State,
 694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 4

Taylor v. State,
 233 S.W.3d 356 (Tex.Crim.App. 2007) ........................................................ 7

Thompson v. State,
 9 S.W.3d 808 (Tex.Crim.App. 1999) ............................................................ 8

Vasquez v. State,
  830 S.W.2d 948 (Tex.Crim.App. 1992) ....................................................... 5


TEXAS COURTS OF APPEAL:

Browning v. State,
 No. 12-14-00179-CR (Tex.App.—Tyler) ...................................................... 8 n.1

Chavez v. State,
 6 S.W.3d 66 (Tex.App.—San Antonio 1999)................................................ 5

Clay v. State,
 741 S.W.2d 209 (Tex.App.—Dallas 1987) ................................................... 6

Mata v. State,
 141 S.W.3d 858 (Tex.App. – Corpus Christi 2004) ...................................... 7

Perez v. State,
 994 S.W.2d 233 (Tex.App. – Waco 1999) .................................................... 6

Taylor v. State,
 911 S.W.2d 906 (Tex.App. – Fort Worth 1995) ............................................ 6


STATUTES:

TEX. CODE CRIM. PROC. art. 37.07 .................................................................... 5



                                                       v
                              No. 12-14-00126-CR


                  IN THE TWELFTH COURT OF APPEALS
                            TYLER, TEXAS


                           CHRISTOPHER WILEY

                                         Appellant,

                                       v.

                           THE STATE OF TEXAS

                                            Appellee



        On Appeal from the 241st District Court of Smith County, Texas
                        Trial Cause No. 241-1239-13




TO THE HONORABLE JUSTICES OF THE COURT:

      COMES NOW, Christopher Wiley, by and through his attorney of record,

Austin Reeve Jackson, and files this his brief pursuant to the Texas Rules of Ap-

pellate Procedure, and would show the Court as follows:
                         STATEMENT OF THE CASE

      Christopher Wiley seeks to appeal his conviction and sentence for the of-

fense of Murder. (I CR 139). Mr. Wiley was indicted for this offense in the 241st

District Court of Smith County in September of 2013. (I CR 1). To this charge he

entered a plea of “not guilty” and proceeded to trial by jury. (I CR 139). Ultimate-

ly, Mr. Wiley was convicted and sentenced by the jury to serve a term of life con-

finement. (Id.). Sentence was pronounced on 9 May 2014 and notice of appeal

then timely filed. (I CR 139, 143).

                              ISSUE PRESENTED

I.    APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
      COUNSEL AT PUNISHMENT.

                           STATEMENT OF FACTS

      In the early morning hours of 1 July 2013, Appellant, Mr. Christopher

Wiley, arrived in a distraught state at his mother’s home in Tyler. (III RR 67).

When asked what was going on, he responded “that he had shot Rodney [in the

head and chest] and that he was going to commit suicide.” (III RR 70-71). “Rod-

ney” referred to Mr. Wiley’s domestic partner, Rodney Walker. (III RR 69). Mr.

Walker and Mr. Wiley had been together for sometime though their relationship

had been by all accounts marked by alcoholism and violence on the part of both of

them. (III RR 107, IV RR 275, 321). In fact, in addition the instant case law en-




                                         2	  
forcement had been called to their home on at least seven prior occasions for do-

mestic disturbances. (IV RR 268).

      On this occasion, law enforcement arrived to find Mr. Walker in his bed-

room on the ground in a pool of blood. (III RR 226-227). At trial Mr. Wiley testi-

fied that earlier that evening he and Mr. Walker had found themselves in an argu-

ment regarding Mr. Wiley’s decision to move out and terminate the relationship.

(IV RR 142). According to Mr. Wiley, Mr. Walker reacted to that decision by

making threats against both he and his mother. (Id.). The argument stalled initial-

ly, and the two went to separate areas of their home. (IV RR 145). However, Mr.

Walker reinitiated their verbal spar and elevated the situation by slapping and

pushing Mr. Wiley. (Id.). More threats were made and the level of agitation con-

tinued to increase. (IV RR 148-49). Based on his prior acts of violence, Mr.

Wiley became concerned that Mr. Walker was going to “beat [him] like he had

previously done.” (IV RR 150). At that point, Mr. Wiley “snapped” and pulled a

gun out of his pocketing firing it twice. (IV RR 152-53).

      Before law enforcement could speak with Mr. Wiley that day he passed out

at his mother’s house and was taken to the hospital. (IV RR 42). Upon arrival he

was sent to the ICU as a result of having a near fatal level of his blood alcohol.

(IV RR 42). Upon his waking he was arrested and charged with murder. (I CR 1).




                                         3	  
      To this charge he entered a plea of “not guilty” and proceeded to trial by jury

in the 241st District Court of Smith County. (I CR 139). In the end the jury re-

jected his claim of self-defense and Mr. Wiley was convicted and sentenced by the

jury to serve a term of life confinement. (Id.). Sentence was pronounced on 9 May

2014 and notice of appeal then timely filed. (I CR 139, 143).

                          SUMMARY OF ARGUMENT

      In the instant case the State, through closing argument, urged the jury to cal-

culate parole eligibility in determining Appellant’s sentence. Because Appellant’s

trial counsel failed to object to these comments Appellant did not receive effective

assistance of counsel.

                                    ARGUMENT

      I.          APPELLANT RECEIVED INEFFECTIVE ASSIS-
                  TANCE OF COUNSEL AT PUNISHMENT.

      Effective assistance of counsel is to be evaluated under the standard enunci-

ated in Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344

(1984); see also, Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999). To

prevail in a claim of ineffective assistance of counsel, a defendant must show (1)

that his trial counsel’s performance fell below an objective standard of reasonable-

ness, and (2) that a reasonable probability exists that, but for trial counsel’s alleged

errors, the result would have been different. Strickland, 466 U.S. at 687-88. On

appeal, the defendant carries the burden of proving ineffective assistance by a pre-

                                           4	  
ponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.

1985). Trial counsel’s performance is not to be judged with the benefit of hind-

sight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992).

      Specifically applying this standard to allegations that trial counsel was inef-

fective for failing to raise a proper objection, an appellate court will not presume

that failure to object to improper or inadmissible evidence or argument is, per se,

ineffective assistance of counsel. Strickland, 466 U.S. at 690. However, where

there exists no reasonable trial strategy for failing to make such an objection, inef-

fective assistance of counsel will be found to have been rendered. Garcia v. State,

57 S.W.3d 436, 440 (Tex.Crim.App. 2001); Vasquez v. State, 830 S.W.2d 948, 951

(Tex.Crim.App. 1992); Chavez v. State, 6 S.W.3d 66, 71(Tex.App.—San Antonio

1999, pet. ref’d); see also Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir.

1985).

      Relevant Facts

      In the instant case, Mr. Wiley was convicted of the felony offense of murder.

(I CR 139). Thus, the charge given the jury on punishment was required to contain

the parole explanation contained in article 37.07 of the Texas Code of Criminal

Procedure. This instruction was given. (I CR 125).

      In closing argument the State used this instruction as a foundation to its ar-

gument that the maximum sentence should be imposed. (VI RR 28, 50). While



                                          5	  
conceding that the actual date on which Mr. Wiley would be paroled was not a

predictable event, the State nonetheless asserted that it could be predicted that Mr.

Wiley “will actually make parole.” (VI RR 50).

      Why do we keep using the word “eligibility?” It’s because we can’t
      say when he will actually make parole. And that makes sense, be-
      cause once he gets to prison it’s up to him. The parole authorities will
      grant him parole based on his conduct in prison. So he’s the one that
      gets to decide when he paroles.

(Id.). Because “the parole authorities will grant him parole,” the State continued, it

was imperative that the jury impose a life sentence to that when Mr. Wiley is re-

leased “he doesn’t get out here and commit a third DWI and kill a family or get

drunk and kill his next partner.” (Id.; see also VI RR 28).

      The State’s Argument was Improper

      Arguing that Mr. Wiley would be released and that a life sentence was nec-

essary to ensure that he was under continued supervision after inevitably being re-

leased cannot be construed as anything other than urging the jury to apply parole

law to this particular defendant.      Perez v. State, 994 S.W.2d 233, 236-37

(Tex.App.—Waco 1999, no pet.); Taylor v. State, 911 S.W.2d 906, 911

(Tex.App.—Fort Worth 1995, pet. ref’d); Clay v. State, 741 S.W.2d 209, 210

(Tex.App.—Dallas 1987, pet. ref’d).     The jury was, in effect, told “it did not mat-

ter how long a term was assessed” because Mr. Wiley would be back on their

streets in a matter of years and the State’s argument was “tantamount to telling the



                                          6	  
jury to disregard the charge of the Court on the applicable law and to apply the pa-

role laws” to Mr. Wiley.            Hernandez v. State, 366 S.W.2d 575, 576

(Tex.Crim.App. 1963); Clay, 741 S.W.2d at 211; Consequently, trial counsel

should have raised an appropriate objection when the State made such an argu-

ment. But see Taylor v. State, 233 S.W.3d 356, 358 (Tex.Crim.App. 2007) (hold-

ing that similar arguments were not problematic and counsel was not ineffective

for failing to object.); see also Bone v. State, 77 S.W.3d 828, 833 n.12

(Tex.Crim.App. 2002) (holding that if the appellate court can imagine a strategic

motive to explain the ineffective assistance claim, then the reviewing court may

not sustain the appellant’s point of error).

      But For Counsel’s Failure to Object, The Result May Have Been Different

      The obvious “goal of every defense counsel at the punishment phase of trial

is to have the jury assess the least amount of punishment possible.” Mata v. State,

141 S.W.3d 858, 868 (Tex.App.—Corpus Christi 2004), rev’d on other grounds,

226 S.W.3d 425 (Tex.Crim.App. 2007). Moreover, arguments similar to that made

by the State in this case have been described as being “clearly and grossly improp-

er and prejudicial.” Clay, 741 S.W.2d at 211 (citing Clanton v. State, 528 S.W.2d

250, 254 (Tex.Crim.App. 1975)).

      In the instant case there was extensive evidence, much of which was con-

ceded by the State, that established factors tending to mitigate a life sentence. For



                                           7	  
example, the evidence was undisputed that Mr. Wiley had been the victim of ex-

treme domestic violence at the hands of the alleged victim in this case. (III RR 107

IV RR 142, 145, 150, 181, 182, 268). Moreover, though the jury obviously reject-

ed Mr. Wiley’s self-defense argument, they may have believed that the victim’s

behavior on prior occasions played some contributing factor Mr. Wiley’s use of vi-

olence in this instance. (IV RR 150, 155, 159, 162, 163, 181, 182, 268).

                 Such a situation should leave in the mind of the Court some “grave doubt”

as to the effect counsel’s failure to object had on sentence ultimately imposed.

Burnett v. State, 88 S.W.3d 633, 637-38 (Tex.Crim.App. 2002). Consequently, the

Court must reverse the judgment below and remand the case for a new hearing on

punishment.                                 Id; but see, Thompson v. State, 9 S.W.3d 808, 813-14

(Tex.Crim.App. 1999) (holding that there will generally be insufficient evidence

on direct appeal for an appellate court to make the necessary findings to sustain

this type of argument).1

                                                                  CONCLUSION AND PRAYER

                 WHEREFORE, PREMISES CONSIDERED, Appellant prays, because he

received ineffective assistance during the punishment phase of his trial, that the



	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
           Additionally, the Court has before it in Browning v. State, 12-14-00179-CR, an almost identical
argument made by the same prosecutor. The Court can consider in its harm analysis the likeli-
hood that the error will be repeated if not addressed. Clark v. State, 643 S.W.2d 723, 725
(Tex.Crim.App. 1982).

                                                                                                              8	  
Court reverse the judgment of the trial court and remand the case for a new trial on

punishment.

                                                  Respectfully submitted,

                                                  /s/ Austin Reeve Jackson
                                                  Texas Bar No. 24046139
                                                  112 East Line, Suite 310
                                                  Tyler, TX 75702
                                                  Telephone: (903) 595-6070
                                                  Facsimile: (866) 387-0152


                           CERTIFICATE OF SERVICE


      I certify that a true and correct copy of this brief was delivered to counsel for

the State by facsimile on this the 7th day of January 2014.


                                                  /s/ Austin Reeve Jackson


                      CERTIFICATE OF COMPLIANCE


      I certify that this document complies with the requirements of Rule 9.4 and

consists of 1,905 words.


                                                  /s/ Austin Reeve Jackson




                                          9	  
