                                                                               ACCEPTED
                                                                           03-14-00527-CR
                                                                                   5490132
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                       6/1/2015 1:11:05 PM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK
                         NO. 03-14-00527-CR

                    IN THE COURT OF APPEALS               FILED IN
                                                   3rd COURT OF APPEALS
                             FOR THE                   AUSTIN, TEXAS
          THIRD SUPREME JUDICIAL DISTRICT OF TEXAS 6/1/2015 1:11:05 PM
                            AT AUSTIN                JEFFREY D. KYLE
                                                           Clerk
_________________________________________________________________

                          NO. 14-0874-K368

                   IN THE 368th DISTRICT COURT
                 OF WILLIAMSON COUNTY, TEXAS
_________________________________________________________________

                   JAMES ALAN WEATHERFORD,
                          APPELLANT

                                  V.

                         STATE OF TEXAS,
                            APPELLEE
_________________________________________________________________

                       APPELLANT’S BRIEF
_________________________________________________________________
ORAL ARGUMENT REQUESTED

                                 DAL RUGGLES
                                 SBN: 24041834
                                 LAW OFFICE OF DAL R RUGGLES
                                 1103 NUECES ST.
                                 AUSTIN, TEXAS 78701
                                 PH: (512) 477-7991
                                 FAX:(512) 477-3580
                                 DAL@RUGGLESLAW.COM

                                ATTORNEY FOR APPELLANT
                                ON APPEAL ONLY
                      TABLE OF CONTENTS


                                                           PAGE

Parties to Trial Court’s Final Judgment…………………………………………… 3

Index of Authorities…….….……………………………………………………… 4

Statement of the Nature of the Case……………………….………...………......... 6

Statement of of the Point of Error.……………………………………………….... 8

Statement of Facts………...……………………………………………………..... 9

Summary of the Argument …………………………………………………….... 25

Point of Error Number One……………………………………….…...…………. 27

Conclusion…….………………………………………………….…...…………. 41

Prayer for Relief………………………………………………….…...…………. 41

Certificate of Service……………………………………………………………. 42

Certificate of Compliance………………………………………………………... 42




                                2
            PARTIES TO TRIAL COURT’S FINAL JUDGMENT

      In accordance with Tex.R.App.Proc. 38.1(a), Appellant certifies that the

following is a complete list of the parties and their counsel:

      (a) the State of Texas represented by:

             Ms. Elizabeth Whited – trial attorney
             State Bar No. 24060823
             Williamson County District Attorney’s Office
             405 Martin Luther King Drive
             Georgetown, Texas 78626

             Mr. Danny Wallace Smith, Jr. – trial attorney
             State Bar No. 24046867
             Williamson County District Attorney’s Office
             405 Martin Luther King Drive, Box 1
             Georgetown, Texas 78626

      (b) Mr. James Alan Weatherford, represented by:

             Mr. Daniel H. Wannamaker – trial attorney
             State Bar No. 20834300
             Wannamaker & Associates
             1012 Rio Grande Street
             Austin, Texas 78701

             Dal Ruggles – appellate attorney
             State Bar No. 24041834
             The Law Office of Dal R Ruggles
             1103 Nueces St.
             Austin, Texas 78701




                                           3
                                     INDEX OF AUTHORITIES

CASES                                                                                                      PAGE

Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App. 1972)….…............................. 34

Cox. v. State, 931 S.W.2d 349, 357 (Tex.App.-Fort Worth 1996), pet. dism’d ….36

Crank v. State, 761 S.W.2d 328, 341 (Tex.Crim.App. 1988)..................................34

Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1979)
(opinion on rehearing)............................................................................................. 39

Ex parte Cruz, 739 S.W.2d 53 (Tex.Crim.App. 1987)............................................ 28

Ex parte Walker, 777 S.W.2d 427 (Tex.Crim.App. 1989) ..................................... 28

Ex parte Welborn, 785 S.W.2d 391 (Tex.Crim.App. 1990) ................................... 28

Ex parte Ybarra, 629 S.W.2d 943 (Tex.Crim.App. 1982) ...................................... 28

Fuller v. State, 224 S.W.3d 823 (Tex.App.- Texarkana 2007, no pet.) .................. 39

Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App. 2003) ...................... 28

Haley v. State, 173 S.W.3d 510, 515 (Tex.Crim.App. 2005)…………………..... 35

Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999) ................................. 27

Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001).………......................... 27

Menefee v. State, 287 S.W.3d 9, 13 (Tex.Crim.App. 2009)………....................... 39

Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397
(1986)……………………………………………………………………………...28

Poole v. State, 974 S.W.2d 892, 897 (Tex.App.-Austin 1998, pet. ref’d)………...36

Ramirez v. State, 301 S.W.3d 410 (Tex.App.-Austin 2009, no pet.) ..................... 27



                                                          4
Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999)................................ 35

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984)………………………………………………………………………….27, 38

Tempin v. State, 711 S.W.2d 30 (Tex.Crim.App. 1986)……………..................... 34



CONSTITUTIONAL PROVISIONS, STATUTES AND RULES                                      PAGE

Tex.R.App.Proc. 38.1(a)………………………..…………………….…................3

Tex.R.App.Proc. 33.1……………………………………………………..………31

Tex.R.Ev. 403…………………………………………………………………….36

Tex.R.Ev. 404(b) ......................................................... …………………………...34

Tex.R.Crim.Proc. 37.07…………………………………………………...………35




                                             5
TO THE HONORABLE JUDGES OF SAID COURT:

        COMES NOW, James Alan Weatherford, Appellant in this cause, by and

through his Attorney, and files this, his brief on original appeal.


                    STATEMENT OF THE NATURE OF THE CASE

        Appellant was charged by indictment on May 8, 2014 in Cause No. 14-

0874-K368 with 4 counts of possession with intent to promote child pornography

and 22 counts of possession of child pornography.1 (C.R. pp. 5-16) On July 21,

2014, Appellant entered a plea of Guilty to counts 2-4 in the indictment charging

possession with intent to promote child pornography and counts 5-26 in the

indictment charging possession of child pornography. Appellant’s plea was given

open to the court with no agreed recommendation as to punishment. (C.R. pp. 75-

78) (R.R. IV, pp. 13-14) Count 1 of the indictment charging possession with intent

to promote child pornography was dismissed. (C.R. p. 79) (R.R. IV, p. 15)

        On July 23, 2014, Appellant waived his right to a jury trial for punishment

and went to the court for a hearing on punishment. At the culmination of the

hearing, the trial judge found Appellant guilty on counts 2, 3 and 4 in Cause No.

14-0874-K368 for the offense of possession with intent to promote child

pornography. The trial judge also found Appellant guilty on counts 5-26 in Cause

1
 Appellant was also charged by indictment in Cause No. 12-04665-K277 with 9 counts of promotion of child
pornography and 15 counts of possession of child pornography. Appellant pled guilty to the lesser included charge
of possession of child pornography in counts 1-9 and possession of child pornography in counts 10-24. As in Cause



                                                        6
No. 14-0874-K368 for possession of child pornography.           (R.R. VI, p. 108)

Appellant was sentenced to twenty years confinement in the Texas Department of

Corrections on counts 2, 3 and 4 to run consecutively. Appellant was sentenced to

five years in the Texas Department of Corrections on counts 5-26 to run concurrent

with Appellant’s sentence in count 4 of the indictment. (R.R. VI, pp. 109-110)

Appellant gave a timely notice of appeal on August 20, 2014 and filed a timely

motion for a new trial on August 21, 2014. (C.R. pp. 102-106)




                 STATEMENT OF THE POINT OF ERROR



                                        7
POINT OF ERROR NUMBER ONE

    APPELLANT’S TRIAL COUNSEL RENDERED INEFFECTIVE
    ASSISTANCE BY ALLOWING APPELLANT TO PLEAD GUILTY
    TO THE CHARGE OF PROMOTION OF CHILD PORNOGRAPHY
    WITH THE STRATEGY OF ARGUING INSUFFICIENT EVIDENCE
    TO SUPPPORT HIS PLEA DURING THE PUNISHMENT
    HEARING.




                 STATEMENT OF FACTS



                            8
      Appellant was charged in two indictments. In Cause No. 14-0874-K368

Appellant was charged with 4 counts of promotion of child pornography and 22

counts of possession of child pornography. The State later waived one count of

promotion of child pornography. In Cause No. 12-0465-K277 Appellant was

charged with 9 counts of promotion of child pornography and 15 counts of

possession of child pornography. In Cause No. 14-0874-K368 Appellant entered a

plea of guilty to counts 2, 3, 4 for promotion of child pornography and 5-26 for

possession of child pornography. In Cause No. 12-0465-K277 Appellant entered a

plea of guilty to counts 1-9 for the lesser-included charge of possession of child

pornography and 10-24 for possession of child pornography. Appellant waived his

right to a jury trial, and elected to have his sentence determined by the Court. (R.R.

IV, pp. 5-15)

      During his guilty plea, Appellant testified that he was arrested on March 21,

2012 when officers from the Attorney General’s Office came to his house and

executed a search warrant. In the process of executing the search warrant Appellant

was questioned about suspected child pornography found on a computer located in

the house. Appellant stated he had inadvertently seen the images periodically while

searching for other things and that he tried to delete them whenever he saw them.

Ultimately, the investigation found over 25,000 images containing child

pornography in addition to various videos and other media files. (R.R. IV, pp. 16-


                                          9
19)

      Two days following Appellant’s plea, a punishment hearing was held. After

both parties waived opening, the State called Sergeant Ross Behrens.       Sergeant

Behrens testified that he worked with the Texas Attorney General’s Office and was

assigned to the Cyber Crime Unit. He went on to say that as a member of the

Cyber Crimes Unit he investigated crimes committed with computers that involved

children. He explained that he often worked in an undercover capacity,

particularly when working online solicitation cases. (R.R. V, pp. 8-10)

      Sergeant Behrens testified that he received specialized training through

Internet Crimes Against Children, investigative techniques, Undercover Chat and

several different peer-to-peer trainings. He described a peer-to-peer network as a

file-sharing network where someone can get online and download programs in

order to communicate though the computer with someone else. They can trade

documents, images, videos or whatever they see fit. He explained that these

programs are not preloaded on a computer but rather, have to be sought out and

downloaded from a website. Sergeant Behrens also testified that while these

programs can be used to share child pornography, they can also be used for other

purposes. He testified that child pornography is sought out and actively

downloaded by a person and that in his experience, he has never seen an internet-

user inadvertently come into possession of files containing child pornography.



                                        10
(R.R. V, pp. 11-16)

      Sergeant Behrens testified that in a typical investigation he employs

proprietary software to scan file-sharing networks in order to identify I.P.

addresses that are sharing files containing suspected child pornography. (R.R. V,

pp.17-18) He then initiates a download of the files and if confirmed to contain

child pornography, he sends the internet-provider an administrative subpoena to

obtain information on the subscriber. This is done to confirm who had the IP

address assigned to them on the day Sergeant Behrens connected and downloaded

the file. With this information he obtains and executes a search warrant of the

location from which the files were downloaded. (R.R. V, pp. 23-30)

      Sergeant Behrens testified that in this case he obtained a search warrant after

downloading between 120-130 images and videos of child pornography from

Appellant’s IP address from November of 2011 until February of 2012. He said

the search warrant was executed on March 21, 2012. (R.R. V, pp. 38-40) While

the search warrant of Appellant’s residence was being executed, Sergeant Behrens

interviewed Appellant. He read Miranda warnings to Appellant and told him the

reason for the search. Appellant admitted to Sergeant Behrens that he had used

peer-to-peer networks. Specifically, he admitted using several network programs

including eDonkey, the same program that Sergeant Behrens used to obtain child

pornography from Appellant’s IP address. He also admitted he had seen thousands



                                          11
of child pornography files but that he never sought them out, that he tried to delete

them, and that they would randomly pop up while he was searching through adult

pornography. Sergeant Behrens testified that he had never heard of child

pornography popping up when someone visits a legal adult pornography site.

(R.R. V, pp. 47-51)

      Sergeant Behrens testified that two computers were found in Appellant’s

dining room, one computer was in the master bedroom shared by Appellant’s wife

and daughter, and two computers were found in Appellant’s bedroom. One of the

computers was in his bedroom and the other was in the bedroom closet. The State

offered several photos taken of the rooms where the computers were found as well

as photos of the computers themselves into evidence as State’s Exhibits No. 5-20.

The defense voiced a relevance objection. The court overruled the objection and

allowed the exhibits into evidence. (R.R. V, pp. 52-58)

      Appellant was arrested on the same day the warrant was executed. Sergeant

Behrens said he made the decision to arrest Appellant based upon files containing

child pornography that were found on the computer that Appellant admitted was

used exclusively by him. (R.R. V, p. 62)

      Sergeant Behrens testified that he went back to search Appellant’s residence

on two more occasions. He identified State’s Exhibits No. 2 and 3 as being

consent forms to search for computer-related material that Appellant’s wife, Mrs.



                                           12
Bobbie Weatherford, had signed and said the searches were conducted on April 3,

2012 and April 23, 2012 respectively. He also identified State’s Exhibit No. 4 as

being a child’s drawing that was wrapped around a computer hard drive to conceal

it. Defense counsel objected to Exhibit No. 4 saying it was irrelevant and

prejudicial outweighing probative value. The trial court overruled the objection.

(R.R. V, pp. 62-65)

      Sergeant Behrens went on to say that items recovered during the follow up

search included a Maxtor internal hard drive, 3 CDs, and an 8 millimeter camera.

Sergeant Behrens was asked to describe what was on the videos recorded by the

camera to which defense counsel objected. Counsel for Appellant argued the

camera videos depicted extraneous acts not associated with the counts Appellant

was charged with and therefore, should be inadmissible based upon Texas Rules of

Evidence 403, 404, 405 and 802. Defense counsel also objected based upon Fifth

Amendment, Sixth Amendment and due process violations. The State testified that

the images in the camera videos were not child pornography but could be

construed as improper photography. The State argued that the videos were

relevant and being offered as an explanation to the sexual gratification and the

manufacturing and promotion of the child pornography in Counts 2, 3 and 4 of the

indictment that Appellant pled guilty to. The State felt that as such, the videos

showed Appellant’s motive. The State also confirmed that the video had been



                                          13
presented to defense counsel in 2013 along with a Rule 404 notice. The trial court

overruled the defense objection and Sergeant Behrens was allowed to describe the

content of the videos. One video was of children in a pool across a street. There

were two or three girls in the video wearing bikinis. There was another video of a

neighbor girl helping her father tie down a boat. There was also a video of

Appellant’s daughter in which she was completely nude. (R.R. V, pp. 66-70)

      Detective Behrens was asked if Appellant ever gave any indication he had

inappropriately touched his daughter, S _ _ _ . Defense counsel again objected

based on Rule 403. The court overruled the objection. Detective Behrens said that

during the course of his investigation he saw indications that Appellant had

touched his daughter in a way that was sexual in nature. He went on to say he saw

a progression in Appellant’s case, going from downloading child pornography, to

making child pornography, to touching a child. (R.R. V, pp. 71-73)

      On cross-examination, Sergeant Behrens testified that in his opinion the

officers who accompanied him in executing the search warrant could have been

more thorough in their search and that some of the evidence was collected on dates

subsequent to the execution of the search warrant. (R.R. V, pp. 82-88) Sergeant

Behrens confirmed that in the process of downloading files containing adult

pornography from a file-sharing network it is possible that child pornography

could be mixed in with files of adult pornography. (R.R. V, p. 92) He also



                                         14
confirmed that the video of Appellant’s daughter that was in the camera was not

“lewd.” Sergeant Behrens agreed that she was nude and dancing around but not

exposing genitalia, etc.. (R.R. V, pp. 92-95)

      The next witness called by the State was forensics investigator, Sergeant

Steven Ried. As a Computer Forensics Certified Examiner working for the

Attorney General’s Office, Sergeant Ried’s job was to preview computers seized

during execution of the search warrant, and to then thoroughly search all of the

digital media that was seized during the investigation. His training and experience

included being an EnCase Certified Examiner, an AccessData Certified Examiner

and Computer Forensics Certified Examiner through the International Association

of Computer Investigative Specialists. (R.R. V, pp. 97-100) Sergeant Ried

testified that in the course of previewing the computer seized at Appellant’s home

he identified files containing child pornography and that based on his forensic

investigation he determined the computer in question to be that of Appellant’s.

(R.R. V, pp. 108-109) Sergeant Ried testified that he had no way of doing digital

forensics on a videotape such as an 8-millimeter film but he was able to do

forensics on the other items of interest. (R.R. V, pp. 116-117)

      During the State’s direct examination, Sergeant Ried identified the items

taken from Appellant’s home that he performed forensic analysis on and whether

or not he found child pornography on them. He also identified items 25, 27 and 28



                                         15
as those that were later recovered from the consent-to-searches. Those items

included CDs, DVDs and two hard drives. (R.R. V, pp. 117-122) Sergeant Ried

identified State’s Exhibits No. 21-66 as being DVD’s and CD’s containing images

and videos he found during his forensic analysis of the items in Appellant’s case.

The State tendered to opposing counsel and offered into evidence the photos as

State’s Exhibits No. 30-66 and the DVDs as State’s Exhibits No. 21-29. (R.R. V,

pp. 125-126)

      Defense counsel took Sergeant Ried on voir dire regarding the admission of

Exhibit’s No. 21-66. Sergeant Ried testified that he was not able to identify each

item of evidence in terms of which particular count it was tied to. He could not say

if the State’s Exhibits No. 21-66 were all tied to counts in the indictment that

Appellant had pled to. For this reason defense counsel argued that the State had

not set the proper predicate for their admission into evidence and objected. The

State argued that all of the images found by Sergeant Ried to be child pornography

were within the scope of their direct in a sentencing hearing. Additionally, the

State testified that the 49 exhibits being introduced were the 49 counts in which

Appellant pled guilty. The court overruled defense counsel’s objection and

admitted State’s Exhibits No. 21-66 into evidence. (R.R. V, pp. 126-131)

      During lengthy questioning by the State, Sergeant Ried provided testimony

identifying the specific images and videos in exhibits 21-66. He testified as to



                                          16
what each image and video depicted and why it would be classified as child

pornography. In all, Sergeant Ried said he found Appellant to be in possession of

more than 25,000 images of child pornography. (R.R. V, pp. 137-162)

      Next, the State asked Sergeant Ried if he found a video or image of

Appellant’s daughter during his analysis. He testified that he did. Defense counsel

objected saying the video or image of Appellant’s daughter was associated with a

count in the indictment that was dismissed for lack of evidence. The State argued

that the evidence was relevant to punishment. The court overruled Appellant’s

objection. (R.R. V, pp. 163-164)

      Sergeant Ried testified that he learned one of Appellant’s daughters was

named J _ _ _ when he saw it as the title of one of the videos. He testified that

other videos classified as child pornography involved Appellant’s other daughter, S

_ _ _ , and were found on items no. 1, 25, 28 and that he believed those videos

were titled “SL6” and then a number. The State then offered Exhibits No. 67, 68,

and 69 into evidence. These exhibits were described as DVD’s of three videos

titled SL6-1, SL6-2 and SL6-3. Defense counsel did not object to their admittance.

Sergeant Ried testified that the videos labeled SL6-1, SL6-2 and SL6-3 were child

pornography because the female child in them had her breasts and vagina exposed

towards the camera. Sergeant Ried testified the videos would also be classified as

manufacturing of child pornography due to the fact that a female child in the



                                          17
videos was being posed. Sergeant Ried testified that Appellant could be seen in

the video manipulating the camera, directing the child to pose in front of the

camera, and in one instance, adjusting his penis through his pants. (R.R. V, pp.

165-170)

      The State then turned Sergeant Ried’s attention toward the video he deemed

of interest that had Appellant’s daughter, J _ _ _, in it. Defense counsel objected

saying the video was irrelevant, hearsay, and prejudicial because it is associated

with a count that was dismissed. The State responded that everything was relevant

in punishment and that the video would be relevant even in guilt/innocence

because it showed motive, intent, plan and scheme of not only manufacturing the

video but of what he was going to do with it. The court overruled defense

counsel’s objection. Sergeant Ried testified that the video of J _ _ _ was named “J

_ _ .avi” and the State tendered the video to defense counsel and offered it into

evidence as State’s Exhibit No. 70. Once again, defense counsel objected saying

there would be hearsay on the video. The court asked if there was audio. The

State said no. The video was then published to the court and described as not

being child pornography. On the video a female child could be seen changing into

a bathing suit but her genitals or breasts are never exposed because she steps out of

view of the camera. Sergeant Ried testified that he believed he found the video on

items No. 1, 25, and 28. He also testified that there were “known.met” files on



                                          18
these three items. He explained that a “known.met” file is one used by eDonkey or

the eMule program to keep track of information about files that are either uploaded

or downloaded. Sergeant Ried testified that in the “known.met” files there were

images and videos being traded by Appellant to other individuals and though he

did not recall if he saw evidence that the video “J _ _ .avi” was being traded,

uploaded, or downloaded in those “known.met” files, he did recall that an image

was. The image that was being shared was a snapshot of the “J _ _ .avi” video.

The image was a snapshot of J _ _ _ getting undressed where you could see her

buttocks. (R.R. V, pp. 172-178)

      Sergeant Ried testified that he also discovered chats that Appellant had

engaged in on these peer-to-peer networks. The “GigaTribe” chat file was found

on Item No. 1 and Item No. 25. Item No. 1 was the Dell desktop from appellant’s

bedroom and item 25 was the Seagate hard drive. State’s Exhibit No. 71,

described as “about ten pages worth of chat text” was shown to Sergeant Ried who

testified that he recognized it and described it as a chat that appears to be between

two persons by the name of Chris and “Tornado.” State’s Exhibit No. 71 was

tendered to defense counsel and offered into evidence. Defense counsel objected.

Sergeant Ried went on to explain why he believed Tornado was actually Appellant.

He explained that among the many chats he viewed, Tornado was the character or

screen name consistently used. That led Sergeant Ried to believe that Tornado was



                                          19
the user of the computer where the chats were located. According to Sergeant

Ried, Tornado was the holder of an account that requested information and at times

provided information. He testified that Tornado shared the snapshot from J _ _

.avi. This fact, along with the fact that Tornado was the consistent user name on

the Dell desktop that was shown to be Appellant’s computer, led Sergeant Ried to

determine that Tornado was Appellant. The State offered the chat into evidence as

State’s Exhibit No. 71 to which the defense objected, saying the chat contained

hearsay and that the proper predicate had not been laid. (R.R. V, pp. 180-183)

      The State argued that the chat was not hearsay because it was a statement by

Appellant. The State went on to say that “the statements go to identity, intent,

motive, plan and scheme of the Defendant, not of the other party, and it’s

incriminating statements against himself.” Finally, the State argued they were not

offering it for the truth of the matter asserted. They were offering it for the context

of what “J _ _ .avi” was filmed and uploaded for, and what SL6-1 was filmed and

uploaded for. The court expressed a concern that the chat did not deal with intent

to distribute videos, SL6-1, 2 and 3. (R.R. V, pp. 180-185) Again, the State

argued that while the chat was not about SL6 it would show his motive of what he

planned to do with it. When asked by the court if there was any information that

the chat was done at or anywhere near the time that videos SL6-1, 2, and 3 were

made the State answered “no.” The State explained that the films were made over



                                          20
a period of at least seven years and that although the chat was not about the SL6

videos it was a bad act that was relevant during a punishment hearing. The court

reminded Appellant’s counsel that this was a punishment hearing without a jury.

Defense counsel argued that Rule 403 was “still in play” to which the court

responded “I know it does, but I’m going to go ahead and overrule the objection

and allow it in”. State’s Exhibit No. 71, the chat between Appellant “Tornado”

and Chris, was admitted into evidence and published to the court by having

Sergeant Ried take the role of Tornado and read statements made by him, and

State’s prosecutor, Danny Smith, take the role of Chris and read his statements.

(R.R. V, pp. 183-199)

      Sergeant Ried testified that at the end of the chat Tornado requested pictures

of Chris sexually gratifying himself with J _ _ ’s pictures. The State offered

photos into evidence as State’s Exhibit No. 72 through 75. State’s Exhibit No. 72

was described as a school photo of Appellant’s daughter. State’s Exhibit No. 73

was described as the same school photo but this time with an adult male penis over

her mouth. State’s Exhibit No. 74 was a photo of the same picture depicted in

State’s Exhibit No. 73 with semen on it. State’s Exhibit No. 75 was semen on a

screen capture of “J _ _ .avi.” Defense counsel objected to all photos on the basis

of Rule 403, hearsay, Fifth Amendment, due process and relevance. The court

overruled the objections. Sergeant Ried testified that Tornado requested Chris



                                         21
send him pictures of him enjoying “J _ _ .avi.” Sergeant Ried went on to say that

although “J _ _ .avi” did not reach the definition of child pornography, it was his

belief that it was made and uploaded for sexual gratification. Regarding some of

the specific content of the chat, Sergeant Ried agreed that Appellant made a

statement that amounted to a confession to indecency by contact with his daughter,

J _ _ _, when he said to Chris that he had touched her breast. Defense counsel

objected based on Rule 403, Rule 404, Art. 37.07(1) and Fifth Amendment. The

State countered that Appellant’s confession on the chat was already in evidence.

The court agreed and overruled the objection. (R.R. V, pp. 200-202)

      Sergeant Ried testified that in his training and experience he had also been

made aware of a progression in behaviors. In his forensic analysis of Appellant’s

case he saw a progression of behavior. He saw a progression from hiding the

camera when videotaping his oldest daughter, to having the camera out while

videotaping his youngest daughter. Sergeant Ried testified that during the chat

Appellant said he wanted to have sexual relationships with his daughter but that he

thought it was “too risky”. (R.R. V, pp. 203-204)

      On cross-examination, Sergeant Ried testified that six items were found in

Appellant’s home that contained child pornography. He went on to testify that

while his forensics investigation was able to determine which computers contained

child pornography, he could not determine who in the household was using which



                                          22
computer at any given time. And while he could sometimes determine which

downloaded files had actually been viewed, he could not determine who viewed

them. He also could not say which items contained which particular State’s exhibit

without having the file names with him. (R.R. V, pp. 207-213)

      Sergeant Ried testified that some of the pornography found during his

forensic analysis could have come from countries outside the United States and

that some of it could have been made years ago. He testified that there may have

been legal adult pornography in the items he analyzed and that it is possible for

someone to download images without looking at each and every one. (R.R. V, pp.

210-214)

      When asked by the defense, Sergeant Ried confirmed that State’s Exhibit 70,

the video titled “J _ _ .avi” was not child pornography. He testified the videos

titled “SL6” and introduced into evidence as State’s Exhibits No. 67, 68 and 69

were child pornography however. Sergeant Ried said that he found no evidence

that any of the three videos deemed child pornography had been uploaded or

shared. (R.R. V, pp. 214-216)

      At the end of the punishment hearing and after both sides had rested,

Appellant’s counsel made a motion to the court for a directed verdict in Cause No.

14-0874-K368. The defense explained to the court that although Appellant pled

guilty to 3 counts of promotion of child pornography there was insufficient



                                         23
evidence to support his plea. Counsel asked the court to “direct a verdict at least as

to the second degree nature of it and reduce it to a consideration for a third degree

possession of child pornography.” Defense counsel argued that the only evidence

of intent to disseminate child pornography was “bootstrapped” through the count

that was dismissed because of lack of evidence.         For this reason Appellant’s

attorney asked the court to consider Counts 2, 3, and 4 as possession of child

pornography rather than possessing it with intent to distribute and promote. The

court responded that Appellant had already pled guilty to those crimes and as such,

the guilt/innocence phase of evidence was over.         The court noted that only

punishment was being addressed at that point. Appellant’s motion for a directed

verdict was denied. (R.R. VI. pp. 81-83)

       After both sides presented closing arguments the court sentenced Appellant

to 20 years imprisonment for each count of promotion of child pornography that

Appellant pled guilty to in Cause No. 14-0874-K368. These sentences were to run

consecutively. Appellant was sentenced to 5 years imprisonment for each count of

possession of child pornography he pled to in Cause No. 14-0874-K368 and Cause

No. 12-0465-K277. These sentences were to run concurrently. (R.R. VI, pp. 109-

110)



                       SUMMARY OF THE ARGUMENT



                                          24
      In his sole point of error, Appellant argues that he received ineffective

assistance of counsel when his attorney allowed him to plead guilty to the charge

of promotion of child pornography with the strategy of going to the court for

punishment and arguing during the punishment hearing that there was insufficient

evidence to support his plea.

      Appellant pled guilty to 3 counts of promotion of child pornography and 22

counts of possession of child pornography in Cause No 14-0874-K368. Appellant

did not have an agreement as to punishment but instead, chose to waive his right to

a jury and go to the court for a punishment hearing. During the course of the

hearing Appellant’s attorney argued against the admission of any evidence that he

felt was particularly egregious or might tend to show Appellant’s intent to promote

child pornography.    Appellant based his objections on multiple rules of evidence,

statutes, and constitutional rights that were not effective during a punishment

hearing. Ultimately, Appellant’s counsel motioned the court for a directed verdict

arguing the evidence presented did not show Appellant promoted child

pornography and thus, the court should assess punishment only for the lesser

charge of possession of child pornography.

      Following this ill-advised strategy removed the possibility of effectively

arguing there was insufficient evidence to show Appellant promoted child




                                        25
pornography and in doing so, prejudiced Appellant and affected the outcome of his

case.




                                       26
                       POINT OF ERROR NUMBER ONE

      APPELLANT’S TRIAL COUNSEL RENDERED INEFFECTIVE
      ASSISTANCE BY ALLOWING APPELLANT TO PLEAD GUILTY
      TO THE CHARGE OF PROMOTION OF CHILD PORNOGRAPHY
      WITH THE STRATEGY OF ARGUING INSUFFICIENT EVIDENCE
      TO SUPPPORT THE PLEA DURING THE PUNISHMENT
      HEARING.


      Appellant incorporates by reference the Statement of Facts set out earlier in

this brief. Claims of ineffective assistance of counsel are governed by the United

States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland standard applies in noncapital

sentencing proceedings. Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App.

1999); Ramirez v. State, 301 S.W.3d 410 (Tex.App.-Austin 2009, no pet.). Under

the two-pronged Strickland standard, a defendant must show that (1) counsel’s

performance was deficient and (2) counsel’s deficient performance prejudiced the

defense, resulting in an unreliable or fundamentally unfair outcome. Strickland,

466 U.S. at 687-688.

                           A. Deficient Performance

      The record on direct appeal is normally insufficient to enable the appellate

court to determine that counsel’s representation was so deficient as to overcome

the presumption that counsel’s conduct was reasonable and professional. Mallett v.

State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). Because the trial record was not



                                         27
developed for the purpose of preserving or litigating this claim the record almost

never speaks to the considerations behind the trial tactics the defendant’s counsel

employed. Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App. 2003). In

reviewing claims of ineffectiveness of counsel at the punishment phase of trial, the

effectiveness is gauged by the totality of the representation of the accused. Ex

parte Walker, 777 S.W.2d 427, 430 (Tex.Crim.App. 1989); Ex parte Cruz, 739

S.W.2d 53, 58 (Tex.Crim.App. 1987) However, even a single error can render

counsel’s representation ineffective if sufficiently egregious and harmful to the

defendant. Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649, 91 L. Ed.

2d 397 (1986). The record in this case does speak to counsel’s deficient

representation and reveals a single sufficiently egregious error in the form of an ill-

advised strategy-namely, that Appellant could plea guilty to a charge of promotion

of child pornography and then prevail on an insufficient evidence argument during

a punishment hearing to the court. This strategy is clearly shown by defense

counsel’s arguments during the hearing and punctuated by his motion for directed

verdict at the end of the hearing.

      An effective trial attorney must be familiar with the rules of evidence and

trial procedure. Ex parte Welborn,785 S.W.2d 391, 393 (Tex.Crim.App. 1990) ; Ex

parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App. 1982). The record in

appellant’s case contains multiple examples of defense counsel’s misunderstanding



                                          28
of the rules of evidence and governing law as he argues points of admissibility in

an effort to support his lack-of-evidence strategy. From the beginning of the

punishment hearing Appellant’s attorney pursued the strategy of keeping out

evidence of extraneous bad acts that he should have realized were either clearly

admissible during a punishment hearing or had already been offered into evidence.

Although rarely specific as to their grounds for inadmissibility, Appellant’s

objections focused primarily on Texas Rules of Evidence 404(b) and 403, as well

as Texas Code of Criminal Procedure Section 37.07.

      The State’s first witness, Sergeant Ried, testified that State’s Exhibits No.

21-66 were images and videos of child pornography he found during his forensic

analysis of computers, hard drives, floppy discs, DVDs and CDs taken from

Appellant’s home. When the State offered these exhibits into evidence defense

counsel took the witness on voir dire and ultimately objected to the admission of

State’s Exhibits No. 21-66 saying the proper predicate had not been set as to what

images or videos were contained in the exhibits. Specifically, defense counsel

wanted to know exactly which count in the indictments did each photo or video

correspond to. The court seemed puzzled by the objection.

            THE COURT: No. I just wanted to know why is it an issue if
      your client has already pled to possession of those particular items?

             MR. WANNAMAKER: “Because I want to make sure that
      there’s no extraneous acts or photos contained in this. So I’m
      questioning the predicate, whether or not it’s actually pertaining to


                                         29
      this indictment. So I’m just trying to make sure that nothing gets
      admitted into evidence without objection that is not part of this case.”
      R.R. V, pp. 127-128

When asked by the court if all the videos and photos of State’s Exhibits No. 21-66

were tied to counts on the indictment that Appellant had pled to the State

responded that they were. The State argued that every image found by Sergeant

Ried during his forensic analysis of the hard drives taken from Appellant’s home to

be child pornography were within the scope of direct questioning during a

sentencing hearing. The court overruled Appellant’s objection and after State’s

Exhibits No. 21-66 were admitted into evidence, Sergeant Ried was asked about

the total number of images he observed during his forensic analysis. Defense

counsel once again objected and gave several reasons for his objection. (R.R. V,

pp. 127-131)

            MR. WANNAMAKER: Objection, Your Honor, calls for
      evidence; we think it's a violation of the motion in limine; it's
      extraneous; 403, prejudice outweighs the probative value; 37.07(1);
      Eighth Amendment; Sixth Amendment; Fifth Amendment; Article 1,
      Section 10 of various constitutions; and it's hearsay.

             MS. WHITED: And, Your Honor, I guess at this point it would
      be relevant to make this ruling for all of his future objections on this
      line of questioning. Because the State provided notice under 404, 609
      of other bad acts and other uncharged offenses and gave notice of all
      of these, and he's had all of these images for the last year and a half.
      So if we could just have a running ruling on the mentioning of other
      images and videos, that would probably be --

            THE COURT: And I guess I look at it a little differently
      because it's not a jury. And so I am going to overrule the objection and


                                         30
      allow you to go into that line of questioning.

Appellant’s counsel not only based his objection on rules that did not apply, he

failed to provide the specificity required for a complaint to be preserved for

appellant review. Texas Rule of Appellate Procedure 33.1 provides that:

      “As a prerequisite to presenting a complaint for appellate review, the
      record must show that:
      (1) the complaint was made to the trial court by a timely request,
      objection, or motion that:
      (A) stated the grounds for the ruling that the complaining party sought
      from the trial court with sufficient specificity to make the trial court
      aware of the complaint, unless the specific grounds were apparent
      from the context;

Here, Appellant’s counsel “shot-gunned” his objection by referring to multiple

rules and statutes as well as articles of “various” constitutions making it difficult, if

not impossible, to know the specific grounds for the objection. Additionally, the

State made it clear that defense counsel had been given notice of the other bad acts

and uncharged offenses they intended to introduce and in fact, had had the images

for more than a year.

      The State also offered an image from a video titled “J _ _ .avi.” into

evidence as State’s Exhibit No. 70. The video “J _ _ .avi” was evidence associated

with count one of the indictment in Cause No. 14-0874-K368. Count one was

dismissed prior to the hearing and as such, Defense counsel argued the video was

an extraneous act and should not be admitted.

             MR. WANNAMAKER: I objected earlier and I'm going to


                                           31
      object again. I think that's immaterial, irrelevant, it's 403, it's hearsay.
      The count was dismissed.

             MS. WHITED: Your Honor, this is a punishment hearing.
      Everything is relevant in punishment.            It's also relevant in
      guilt/innocence, if we were there, because it shows his motive, intent,
      plan, and scheme of not only manufacturing this video but of
      what he was going to do with it.

            THE COURT: I'll overrule the objection.

            MR. WANNAMAKER: If I may just have a brief rejoinder, it
      may be punishment, but it's not a free-for-all and donnybrook. There
      are rules of evidence and there are cases that apply to the rules of
      evidence to a punishment hearing. Best I can tell, hearsay still applies
      in some instances in the punishment hearing, that's why I keep
      renewing it. I also have objected numerous times on Rule 403, as well
      as 404, 405 and 37.07(1). There are parameters in which the
      government or the State can get into, and I think that they're trying to
      bootstrap something into the case. It's been dismissed and it's
      extraneous, and I think the probative value is nil compared to the
      prejudicial effect.

            THE COURT: I'm going to overrule the objection.

Moments later the defense renewed the objection.

             MR. WANNAMAKER: I'm going to renew the objections,
      strenuously at this point. The State dismissed this out of the
      indictment. And what they're trying to do, and I'll be quite candid, is
      they're trying to bootstrap SL6 into something more than what it is by
      introducing evidence of another video that they deemed insufficient to
      bring into evidence and take to trial. So I'm going to object, 403, it's
      going to have hearsay on it -- I'm just telling you now, it's going to
      have hearsay on it, and I'm going to renew the objection again, and I
      think that hearsay is going to be more prejudicial than the probative
      value. So I object.

             MS. WHITED: Your Honor, the same rebuttal: It is a video of
      child erotica. It sets the predicate of motive, intent, plan, and scheme


                                          32
      of why we charged promotion of child pornography with the SL6
      series.

             THE COURT: Is there audio on this one?

             MS. WHITED: No, Your Honor.

             THE COURT: Okay. I overrule the objection. (R.R. V, pp. 172-
      175)

      After State’s Exhibit No. 70 was published to the court Sergeant Ried

testified that while he did not recall seeing any evidence of the video being traded,

he did recall that a snapshot from the video was traded. He went on to say that a

chat file was found on the computer taken from Appellant’s bedroom. The text of

this chat was offered as State’s Exhibit No. 71. Defense counsel objected saying

the chat was hearsay and not associated with the counts in the indictment that

Appellant pled to. Again, the court referred to the fact that the hearing was

addressing punishment, not guilt/innocence and after considering Appellant’s Rule

403 objection, the court admitted State’s Exhibit No. 71 into evidence.

              THE COURT: I think that's my problem, Mr. Wannamaker, is
      it is a punishment hearing and it's not a jury. And I understand your
      concerns, but --

             MR. WANNAMAKER: But 403 still is in play, Judge.

            THE COURT: I know it does, but I'm going to go ahead and
      overrule the objection and allow it in. So I'll admit State's Exhibit 71.
      (R.R. V, pp. 181- 186)




                                         33
      While Appellant’s counsel continually objected based on multiple grounds,

the reasons given most often included Rule 404(b), Rule 403, and Art. 37.07.

Texas Rule of Evidence 404(b) provides that:

      “Evidence of other crimes, wrongs or acts is not admissible to prove the
      character of a person in order to show action in conformity therewith, It
      may, however, be admissible for other purposes, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity , or absence of
      mistake or accident, provided that upon timely request by the accused in
      a criminal case reasonable notice is given in advance of trial of intent to
      introduce in the State’s case-in-chief such evidence other than that arising
      in the same transaction.”

A defendant is to be tried only for the offense charged, not for any other crimes or

for being a criminal generally.        Crank v. State, 761 S.W.2d 328, 341

(Tex.Crim.App. 1988). Extraneous offense evidence carries with it the inherent

risk that a defendant may be convicted because of his propensity for committing

crimes generally – i.e. his bad character, rather than for the commission of the

charged offense, courts have historically been reluctant to allow evidence of an

individual’s prior bad acts or extraneous offenses. Tempin v. State, 711 S.W.2d 30

(Tex.Crim.App. 1986); Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App. 1972).

For this reason, evidence of extraneous crimes, wrongs, or acts is not admissible at

the guilt-innocence phase to prove the character of a person in order to show action

in conformity therewith but is admissible to prove other matters, such as motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake




                                         34
or accident if the accused is given reasonable notice of the State’s intent to

introduce the evidence. Tex.R.Ev. 404(b)

      Defense counsel’s reliance on Rule 404(b) is misplaced however as this rule

speaks more to guilt/innocence than punishment.        Unlike the guilt-innocence

phase, the question at punishment is not whether the defendant has committed a

crime, but instead what sentence should be assessed. Haley v. State, 173 S.W.3d

510, 515 (Tex.Crim.App. 2005), citing Rogers v. State, 991 S.W.2d 263, 265

(Tex.Crim.App. 1999). As such, admissibility of evidence during a punishment

hearing is guided primarily by Tex.R.Crim.Proc. 37.07 3(a) not Tex.R.Ev. 404(b).

Article 37.07 specifically allows the introduction of extraneous offenses or prior

bad acts into evidence during the punishment phase of a case as long as the court

deems such matters relevant to sentencing.

      “Regardless of the plea and whether the punishment be assessed by the
      judge or the jury, evidence may be offered by the state and the defendant
      as to any matter the court deems relevant to sentencing, including but
      not limited to the prior criminal record of the defendant, his general
      reputation, his character, an opinion regarding his character, the
      circumstances of the offense for which he is being tried, and,
      notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other
      evidence of an extraneous crime or bad act that is shown beyond a
      reasonable doubt by evidence to have been committed by the defendant
      or for which he could be held criminally responsible, regardless of
      whether he has previously been charged with or finally convicted of the
      crime or act”. Tex. R. Crim. Proc. 37.07 sect 3(a)

Appellant’s counsel included Art. 37.07 with his Rule 404(b) and Rule 403 based

objections but didn’t seem to have a clear understanding of its purpose. Because of


                                        35
the great deal of deference Art. 37.07 gives to the court regarding admissibility of

whatever extraneous evidence it “deems” relevant, it is poorly suited as a defense

argument against admissibility. Here the record clearly shows that the court found

the evidence offered by the State to be relevant.

         Admissibility of punishment phase evidence that the trial court deems

relevant is still subject to a Rule 403 analysis.2 Cox. V. State, 931 S.W.2d 349, 357

(Tex.App.-Fort Worth 1996), pet. dism’d. While the record in the instant case

shows that the court considered Appellant’s Rule 403 objection, a balancing test is

not required to be on the record. In overruling a Rule 403 objection, it is assumed

the trial court performed a balancing test. Poole v. State 974 S.W.2d 892, 897

(Tex.App.-Austin 1998, pet. ref’d).

         Defense counsel’s strategy culminated at the end of the punishment hearing

with his motion to the court for a directed verdict. At this point the defense

explained to the court in detail the idea that although Appellant pled guilty to 3

counts of promotion of child pornography, a second degree felony, there was

insufficient evidence to support his plea and therefore only a charge of possession

of child pornography, a third degree felony, should be considered. The State

strongly disagreed:

         MR. WANNAMAKER: I’d like to make a motion first.
2
 Texas Rule of Evidence 403 states that: “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence.”



                                                          36
      THE COURT: Okay. Go ahead.

             MR. WANNAMAKER: The motion concerns a little background.
      There was one indictment brought and then a second indictment brought,
      so I'm referencing the second indictment that begins with 14. Their
      Counts 2, 3 and 4 -- Count 1 having been dismissed -- those counts allege
      promotion of child pornography. The Defendant pled guilty to it. The
      Court has now found him guilty. We'd ask the Court to direct a verdict at
      least as to the second degree nature of it and reduce it to a consideration
      for a third degree possession of child pornography. There was no
      evidence and it was adduced during the sentencing hearing, which made
      this amply clear, the only evidence that they have of any intent to
      disseminate that information was bootstrapped through the count that was
      dismissed and dismissed because of lack of evidence. So we'd ask the
      Court to consider Counts 2, 3 and 4 as possession of child pornography
      rather than possessing it with intent to distribute and promoting.

             MS. WHITED: Your Honor, I am appalled that the Defense
      attorney would have his Defendant plea guilty to Counts 2, 3 and 4,
      waiving that argument, giving the State notice that guilt and innocence
      was no longer an issue, and then hold our presentation of punishment
      evidence against us and then ask the Court to find him not guilty of
      promotion. That is a sneaky, backdoor way around the jury trial that we
      were set for on Monday. In response, there was evidence that he both
      manufactured and had the intent to promote.

            THE COURT: Right. And I guess from my perspective, Mr.
      Wannamaker, your client's already pled guilty to those crimes. And so
      the guilt/innocence phase of evidence is over. We're talking about
      punishment at this point in time, and so I'm going to deny your motion.

      It is evident from the record that Appellant’s counsel hoped to prevail on a

sufficiency of the evidence argument during the punishment hearing even though

Appellant had already pled guilty to the charges. It is also evident from the record

that in the process of pursing this strategy he demonstrated a lack of understanding




                                         37
regarding rules of evidence and trial procedure. Clearly, his representation of

Appellant was deficient.

               B. Reasonable Probability of a Different Outcome

      Under the second prong of Strickland, an individual must show that the

deficient performance of counsel prejudiced the defense. A defendant establishes

prejudice under the second prong if he shows that a reasonable probability exists

that, but for the deficient performance, the outcome of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Strickland v. Washington, 466 U.S. at 694

      The fact that Appellant was prejudiced by the unprofessional conduct of his

counsel is unquestionable. Defense counsel’s argument throughout the hearing

was that the only evidence showing Appellant promoted child pornography was

associated with the count that was dismissed by the State and as such, there was

insufficient evidence to support a conviction for promotion of child pornography.

The record shows that this issue was considered by the court and may have been a

viable argument. However, this was an argument that should have been made

during a guilt/innocence trial, not a punishment hearing. By pleading guilty to the

charge the argument was effectively waived. Time and time again, when defense

counsel objected to the admission of evidence, the court reminded Appellant’s




                                         38
counsel that they were conducting a punishment hearing, not a guilt/innocence

trial, and for that reason found the evidence relevant and admissible.

      The law is clear that when a defendant executes a judicial confession

acknowledging that he has read the indictment and has committed every act

alleged in the indictment and the trial court takes judicial notice of each

confession, sufficient evidence exists to support his guilty pleas. Fuller v. State,

224 S.W.3d 823 (Tex.App.-Texarkana 2007, no pet.); Menefee v. State, 287

S.W.3d 9, 13 (Tex.Crim.App. 2009).            A judicial confession, standing alone,

provides sufficient evidence to support the trial court's judgment. See Dinnery v.

State, 592 S.W.2d 343, 353 (Tex.Cr.App. 1979)(opinion on rehearing).

Appellant’s plea of guilty and judicial confession to the indictment constituted a

waiver of all complaints regarding the sufficiency of the evidence to support his

conviction.

      Here it is apparent that trial counsel did not understand the law and

procedure regarding what could or could not be successfully argued during

punishment. Appellant’s guilty plea and judicial confession not only removed any

sufficiency-of-the-evidence argument regarding Appellant’s guilt, it subjected any

relevance objection during the punishment hearing to the very broad language of

Art. 37.07. Had Appellant been given the proper advice as to how to contest




                                         39
sufficiency of the evidence, it is not unreasonable to conclude that he would not

have pled guilty and he would not have entered a judicial confession to each count.

      Trial counsel’s performance not only impacted Appellant’s decision whether

to plead guilty or not guilty, it impacted his decision to waive a jury and to testify.

Had Appellant received proper legal advice from his attorney Appellant would

have made a different decision and the outcome would have been different. Trial

counsel’s performance severely prejudiced his own client’s interests and certainly

affected the outcome of the case.




                                          40
                                   CONCLUSION

      Having nominal representation at trial or during a hearing does not suffice to

render such representation constitutionally adequate. A party whose legal counsel

is unable to provide effective representation is in no better position than someone

who has no counsel at all, and indeed, when counsel performs during a plea setting

and punishment hearing as counsel did in this case, may be worse off. Here,

appellant’s trial attorney harmed him significantly. This point of error should be

sustained.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Honorable Court sustain his point of error, reverse the trial court and

remand the case for a new trial.

                                        Respectfully submitted,


                                        /s/ Dal Ruggles
                                        Dal Ruggles
                                        Attorney at Law
                                        1103 Nueces St.
                                        Austin, Texas 78701
                                        Telephone: (512) 477-7991
                                        Facsimile: (512) 477-3580
                                        SBN: 24041834


                                        ATTORNEY FOR APPELLANT
                                        JAMES ALAN WEATHERFORD



                                          41
                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of Appellant’s Brief on Original

Appeal was delivered, via e-file, to the Williamson County District Attorney’s

Office on this the 1st day of June, 2015.

                                                 /s/ Dal Ruggles
                                                 Dal Ruggles


                       CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief contains 8,800 words, as calculated by the

word count function on my computer.

                                                 /s/ Dal Ruggles
                                                 Dal Ruggles




                                            42
