                                                                           ACCEPTED
                                                                       13-15-00165-CR
                                                       THIRTEENTH COURT OF APPEALS
                                                              CORPUS CHRISTI, TEXAS
                 13-15-00165-CR                                    8/5/2015 9:41:41 PM
                                                                CECILE FOY GSANGER
                                                                                CLERK

                   No. 14-08-9586CR
                                         FILED IN
       IN THE 13TH COURT OF APPEALS OF TEXAS
                                        13th COURT OF APPEALS
                              CORPUS CHRISTI/EDINBURG, TEXAS
              THE STATE OF TEXAS,
                                  8/5/2015 9:41:41 PM
                   APPELLEE
                                          CECILE FOY GSANGER
                                                Clerk
                          v.

              Raymond Clinton Hammer
                   APPELLANT

       ON APPEAL FROM Cause No. 13-15-00165-CR,
THE 25TH JUDICIAL DISTRICT COURT OF TEXAS OF LAVACA
                       COUNTY

   DEFENDANT/APPELLANT’S ORIGINAL BRIEF
          (DEFENDANT’S APPEAL)



                           Chris Iles
                           Attorney at Law
                           Park Tower
                           710 Buffalo Street, #802
                           Corpus Christi, Tx. 78401
                           361.883.2020
                           Fax: 866.565.5343
                           SBOT# 00789391
                           Appointed Counsel for Defendant/Appellant


           ORAL ARGUMENT IS REQUESTED




                           1
            IDENTITY OF PARTIES AND ATTORNEYS
State’s Trial and Appellate Attorney:
MR. STUART FRYER
County Attorney/Lavaca County
SBOT#: 07497300
P.O. Box 576
109 N. LaGrange
Hallettsville, Texas 77964
Phone No.: 361.798.4757
Attorney for the State

Appellant:
HAMMER,RAYMOND CLINTON 01986597
DOMINGUEZ UNIT
6535 Cagnon Road
San Antonio, TX 78252-2202

Appellant’s Trial Attorney:
MR. THOMAS F. HILLE
Attorney At Law
SBOT#: 24029613
P.O. Box 2356
Seguin, Texas 78156
Phone No.: 210.317.7430

Appellant’s Appellate Attorney:
Chris Iles
Attorney at Law
Park Tower
710 Buffalo Street, #802
Corpus Christi, Tx. 78401
361.883.2020
Fax: 866.565.5343
SBOT# 00789391




                                   2
                                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND ATTORNEYS . . . . . . . . . . . . . . . . . . . . 2

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE …. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..5

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ISSUES PRESENTED……………………………………………………....8

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ISSUE #1 Defense counsel committed ineffective assistance of counsel
when he failed to object to burden shifting by the state in closing argument.

CONCLUSION AND PRAYER .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

RULE 9.4 (I) CERTIFICATION                                                                            16




                                                     3
                        INDEX OF AUTHORITIES

                                 CASES

Hernandez v. State, 726 S.W.2d 53                               9
Strickland v. Washington, 466 U.S. 668                passim
Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App. 1996)           11
Denton v. State, 920 S.W.2d 311 (Tex.Cr.App. 1996)              11
Harris v. State, 790 S.W.2d 568, 585 (Tex.Cr.App. 1989)         11
Lowry v. State, 692 S.W.2d 85, 87 (Tex. Crim. App. 1985)        11
Middlebrook v. State, 803 S.W.2d 355, 361                       12
Smith v. State, 898 S.W.2d 838, 845                             12
Alejandro v. State, 493 S.W.2d 230                              12
Gaddis v. State, 753 S.W.2d 396,                                12
Coffin v. United States, 156 US 432 (1895)                      12
Estelle v. Williams, 425 US 501 (1976)                          12
Jackson v. State, 973 S.W.2d 954                                12
Thompson v. State, 9 S.W.3d 808                                 12
Gamble v. State, 916 S.W.2d 92                                  12
Robinson v. State, 16 S.W.3d 808, 809-10                        14
Castoreno v. State, 932 S.W.2d 597                              14
McFarland v. State, 928 S.W.2d 482                              14
Ex Parte Davis, 866 SW2d 234                                    14
Ex Parte Felton, 815 SW2d 733                                   14
Weathersby v. State, 627 SW2d 729                               15
                          MISCELLANEOUS
US Due Process Clause                                      Passim
TRAP 33.1                                                        15




                                     4
                      STATEMENT OF THE CASE

      Appellant was indicted on August 21, 2014 for aggravated assault

with a deadly weapon. (Indictment) On February 17, 2015 jury selection and

trial was commenced. RR4. On February 18, 2015 the jury found Appellant

guilty as charged, and imposed 5 years imprisonment. (Jury Verdict) CR

63-64. On Feb. 18, 2015, Appellant timely filed his notice of appeal and

the instant appeal ensued.(Notice of Appeal)


                        STATEMENT OF FACTS

      The state called Rebecca DeLuna Perez, Jail Administrator for the

Lavaca County Jail, as its first witness, who testified as follows: (RR4, 101-

145) On July 3, 2014, she was in the hallway of the jail at about 4:00 PM

when she heard yelling. ID 103. When she went in cell number B1, she saw

that appellant Hammer was yelling and being held against the wall. ID 104.

She saw that another inmate, Trey Sloma, had a gash on his neck, so she

removed him out of the cell. ID 105-106. In the cell she discovered a flex

pen reinforced with the clear wrapping of a deodorant stick. ID 107-108.

The alleged victim did not ask to see a doctor. ID 121. Appellant first

submitted a medical request for treatment on July 11, 2014. ID. Appellant

had blood on his lip and on his shirt. ID 126. There was no DNA evidence

submitted for analysis. ID 127. The shank made its way into Appellant's

                                      5
property bag within 30 seconds after she heard commotion in the cell. ID.

129. She was also recalled as a witness by the state. RR 5, 5-20.

      The state called as its next witness James Whited, patrol deputy for

the Lavaca County Sheriff's office, who testified as to his investigation. ID.

145-180.

      The state called as its next witness Payton Evans, an inmate who

testified as to what he saw and heard on the day of the alleged assault. Id.

180-205.

      The state called as its next witness William Sloma, the alleged victim,

who testified to the details of the alleged assault. Id. 205-225.

      The state next called Johnny Ray Hammer, an inmate who testified as

to what he saw and heard on the day of the alleged assault. id. 225-241.

      The state then rested. RR 5, 20.

      The defense called defendant Hammer who testified as to his

innocence. CR 5, 20-46.

      The state argued the following in closing argument: RR 5, 81.

3 You heard, Mr. Evans did not even know the

4 name or could not identify who the person was. He kept

5 saying the man out in the hall. The man out in the hall.

6 The man out in the hall. Said he'd been in the tank for


                                       6
7 three days with him, and so how did they have such a

8 great friendship? We had to bring in the complaining

9 witness William "Trey" Sloma for Mr. Evans to identify

10 him for purposes of the record. You knew who he was, but

11 the record is just black and white and does not.

12 There's talk about the video. The video is

13 of the hall and that question is whether or not Defendant

14 Hammer had his shirt on. That's all the video would

15 show. Becky Perez said he did not. She said she did not

16 recognize any injury to him until days later. This

17 defendant told you that when he filed his sick call, sick

18 card to go to see the doctor, that was his day he was

19 charged with aggravated assault with a deadly weapon. So

20 he had already cooked up his defense. He banged himself

21 into a table, into the tank, and inflicted that on

22 himself and then afterwards, days later, he didn't

23 complain about it when Becky patted him down. He didn't

24 say "ouch." All he complained about that day was his

25 lip.

                    SUMMARY OF THE ARGUMENT


                                         7
    Defense counsel committed ineffective assistance of counsel when he

failed to object to burden shifting by the state in closing argument.

                            ISSUES PRESENTED

ISSUE #1       Defense counsel committed ineffective assistance of counsel

when he failed to object to burden shifting by the state in closing argument.

                     ARGUMENT AND AUTHORITIES


STANDARD OF REVIEW: To show ineffective assistance of counsel,

an appellant must demonstrate that (1) counsel's representation fell below an

objective standard of reasonableness based on prevailing professional norms,

and (2) but for counsel's errors, there is a reasonable probability the result of

the proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 687-88, 694. This standard of proof of ineffective assistance

applies to the punishment phase as well as to the trial stage of criminal

proceedings. Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.

1986).

                                 ARGUMENT

         This prosecutor in the following comments was improperly arguing

that defendant had the burden to prove his innocence: RR5, 81

               There's talk about the video. The video is


                                        8
             13 of the hall and that question is whether or not Defendant

             14 Hammer had his shirt on. That's all the video would

             15 show.

      This comment was designed to encumber defendant with the burden

of producing a video which could have exculpated it himself, thereby

shifting the burden onto defendant.

             This

             17 defendant told you that when he filed his sick call, sick

             18 card to go to see the doctor, that was his day he was

             19 charged with aggravated assault with a deadly weapon. So

             20 he had already cooked up his defense.

      This comment was designed to convince the jury that the defendant

had the burden to prove his innocence.

      This burden shifting violated Due Process rights under the Texas and

US Constitutions, statutory and case law. Defendant has no obligation to

prove anything. The trial court erred in permitting the state, in closing

argument, to improperly shift the burden of proof to defendant, which

tainted the jury and contributed to appellant's conviction.

      The applicable legal standard of review is whether, in light of the

record as a whole, there is a reasonable possibility the improper argument


                                       9
might have contributed to appellant's conviction. Wilson v. State, 938

S.W.2d 57 (Tex. Crim. App. 1996) citing Denton v. State, 920 S.W.2d 311

(Tex.Cr.App. 1996) In applying this standard of review the court does not

look for overwhelming evidence of guilt because it is improper for an

appellate court to substitute its judgment for that of the factfinder. Harris v.

State, 790 S.W.2d 568, 585 (Tex.Cr.App. 1989). Instead, the court focuses

on the error and its possible impact. Id., 790 S.W.2d at 586-588. "If the error

was of a magnitude that it disrupted the [factfinder's] orderly evaluation of

the evidence, no matter how overwhelming it might have been, then the

conviction is tainted." Id., 790 S.W.2d at 588.

      “The U.S. Supreme Court has . . . held that it is a violation of the due

process clause of the 14th Amendment to shift the burden of proof in a

criminal case to the defendant.” Lowry v. State, 692 S.W.2d 85, 87 (Tex.

Crim. App. 1985). [T]he burden of proof is on the Prosecution. And the

State must prove each and every element of the offense alleged beyond a

reasonable doubt. If the State fails to prove each element of the offense

beyond a reasonable doubt, the Jury has an absolute affirmative duty to

acquit and find the Defendant not guilty. If the State proves each




                                       10
element of the offense beyond a reasonable doubt, the Jury has an absolute

duty to convict and find the Defendant guilty.” Middlebrook v. State, 803

S.W.2d 355, 361 (Tex. App.SFt. Worth 1990, pet. ref’d).

      It is error for a prosecutor, through his argument, to shift the burden to

a defendant to bring forward evidence. See, e.g., Smith v. State, 898 S.W.2d

838, 845 (Tex. Crim. App.), cert. denied, 516 U.S. 843, 116 S. Ct. 131, 133

L. Ed. 2d 80 (1996). Permissible jury argument falls within four general

areas: (1) summation of the evidence; (2) reasonable deductions from the

evidence; (3) answer to the argument of opposing counsel; and (4) plea for

law enforcement. Alejandro v. State, 493 S.W.2d 230, 231-32

(Tex.Crim.App.1973). To constitute reversible error, jury arguments must be

extreme or manifestly improper, or inject new and harmful facts into

evidence. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988).

      The presumption of innocence is one of the most fundamental and

crucial underpinnings of our constitution. It bears noting dicta from the US

Supreme Court that illustrates how crucial this principle is:

[t]he principle that there is a presumption of innocence in favor of the

accused is the undoubted law, axiomatic and elementary, and its

enforcement lies at the foundation of the administration of our criminal law.

Coffin v. United States, 156 US 432 (1895)


                                      11
      In modern decisions, the Supreme Court has noted that the

presumption of innocence, although not articulated in the Constitution, is a

basic component of a fair trial. Estelle v. Williams, 425 US 501 (1976).

      Despite the foregoing, however, defense counsel failed to object to

the prosecutor's burden shifting comments and thereby waived appellate

review on the burden shifting issue.

      Appellant has the burden of proving his claim by a preponderance of

the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App.

1998). The court applies a strong presumption that defense counsel was

competent. Thompson v. State, 9 S.W.3d 808, at 813. (Tex. Crim. App,

1999) It is presumed that defense counsel's strategy was sound and that the

representation was reasonable. Gamble v. State, 916 S.W.2d 92, 93 (Tex.

App.--Houston [1st Dist.] 1996, no pet.). In assessing whether a defendant

has overcome these presumptions, the court is limited to the facts of the

case. Thompson, 9 S.W.3d at 813.

      An appellant "making a claim of ineffective assistance must identify

the acts or omissions of counsel that are alleged not to have been the result

of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S. Ct.

at 2052. Any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged


                                       12
ineffectiveness. Thompson, 9 S.W.3d at 813. The court cannot speculate

beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex.

Crim. App. 1994).

      The Court of Criminal Appeals of Texas has held, however, that a

motion for new trial claiming ineffective assistance of counsel is not always

required to preserve that claim. See Robinson v. State, 16 S.W.3d 808, 809-

10 (Tex. Crim. App. 2000). A timely filed appeal is a proper procedure for

seeking relief regarding ineffective assistance of counsel. See id. A hearing

on a motion for new trial is required only when the motion raises matters

extrinsic to the record. See Castoreno v. State, 932 S.W.2d 597, 605 (Tex.

App.--San Antonio 1996, pet. ref'd). When an appellant's allegations of

ineffective assistance of counsel are firmly founded and affirmatively

demonstrated in the record, no evidentiary hearing is required. See

McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996);

Castoreno, 932 S.W.2d at 605.

      Failure to object may be held ineffective on appeal or a writ

application. Ex Parte Davis, 866 SW2d 234, (Tex. Crim. App. 1993) A

single material omission can constitute ineffective assistance. See, eg, Ex

Parte Felton, 815 SW2d 733, (Tex. Crim. App. 1991) Failure to preserve

appellate complaints can be the basis for a claim of ineffective assistance of


                                      13
counsel. Weathersby v. State, 627 SW2d 729, (Tex. Crim. App. 1982).

(Failure to object to improper opinion testimony)

      Regarding the first prong of the test on the issue of whether counsel's

representation fell below an objective standard of reasonableness based on

prevailing professional norms, appellant argues that it is objectively agreed

upon as a prevailing professional norm that in order to preserve error, trial

counsel must object. Weathersby v. State, 627 SW2d 729, (Tex. Crim. App.

1982) and TRAP 33.1. Since he did not, trial counsel was deficient and

committed ineffective assistance counsel, since he now cannot raise the

claim on direct appeal.

      Regarding the second prong on the issue of whether, but for counsel's

errors, there is a reasonable probability the result of the proceeding would

have been different, appellant argues that there is indeed a reasonable

probability that the result of the proceeding would have been different. For

the reasons mentioned above, the net effect of the prosecutor being

permitted to make these burden shifting comments is that the jury was left

with the false idea that defendant was required to produce a video to prove

his innocence, in addition to having the general burden of proving his

innocence instead of the prosecutor having that burden.




                                       14
      Alternatively, the jury was left with the prejudicial impact of the

state's comments which outweighed any probative fact. In either event, it

cannot be proven beyond a reasonable doubt that this error did not affect

defendant’s fundamental constitutional right to receive a fair trial.

      Trial counsel did not claim that failing to object on this issue was part

of any trial strategy. Furthermore, in light of the facts and record as a whole,

there is no plausible reason why trial counsel would not object to this issue.

      Because of this ineffective assistance of counsel, defendant did not

receive a fair trial, since the jury verdict was undoubtedly tainted by this

error. A new trial is required.

                          CONCLUSION AND PRAYER

      For the foregoing reasons, defendant respectfully requests that the

Court of Appeals vacate, overrule, or reverse the verdict of guilty and order

a new trial.

                                  Respectfully Submitted,



                                  ___________________
                                       Chris Iles
                                       Attorney at Law
                                       Park Tower
                                       710 Buffalo Street, #802
                                       Corpus Christi, Tx. 78401
                                       361.883.2020

                                       15
                                        Fax: 866.565.5343
                                        SBOT# 00789391
                                        Appointed Counsel for Defendant/Appellant
                      CERTIFICATE OF SERVICE

       This is to certify that a copy of this brief was emailed and faxed to the
District Attorney on 8-5-15 and sent via regular mail on same date to
HAMMER,RAYMOND CLINTON 01986597, DOMINGUEZ UNIT
6535 Cagnon Road, San Antonio, TX 78252-2202.


                                               ___________________
                                               Chris Iles

                      RULE 9.4 (I) CERTIFICATION


In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify
that the number of words in this brief, excluding those matters listed in Rule
94.(i)(1), is 3,124.


                                               ___________________
                                               Chris Iles




                                       16
