                                                                                   ACCEPTED
                                                                              03-14-00407-CR
                                                                                     4070209
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                         2/9/2015 11:30:04 AM
                                                                             JEFFREY D. KYLE
                                                                                       CLERK
                        03-14-00407-CR

                     COURT OF APPEALS                         FILED IN
                                                       3rd COURT OF APPEALS
                                                           AUSTIN, TEXAS
           IN THE THIRD JUDICIAL DISTRICT OF         TEXAS
                                                       2/9/2015 11:30:04 AM
                                                         JEFFREY D. KYLE
                      AT AUSTIN, TEXAS                         Clerk



JERRYL ROBINSON,   APPELLANT                     §
                                                 §
VS.                                              §
                                                 §
THE STATE OF TEXAS, APPELLEE                     §


         ON APPEAL FROM THE 274th DISTRICT COURT OF
                  COMAL COUNTY, TEXAS
       THE HONORABLE GARY L. STEEL, JUDGE PRESIDING
              TRIAL COURT CASE NO. CR2013-349


          BRIEF OF JERRYL ROBINSON, APPELLANT


                       Respectfully submitted,

                       Hazel Brown Wright Reneau, PLLC
                       391 Landa Street
                       New Braunfels, TX 78130
                       Tel: 830-629-6955
                       Fax: 830-629-2559

                       By__/s/ Marilee Hazel Brown______
                         Marilee H. Brown
                         SBN# 24046044
                          marilee@hazelbrownlaw.com

                           ATTORNEY FOR APPELLANT


             ORAL ARGUMENT NOT REQUESTED

                                                                          1
          IDENTITY OF PARTIES AND COUNSEL

APPELLANT—JERRYL ROBINSON
   Attorney at Trial Michael Zamora
                     211 Babcock Rd
                     San Antonio, TX 78201
                     Tel: (210) 738-0067
                     Fax: (830) 980-2021

                           David M. Collins
                           206 E. Locust St.
                           San Antonio, TX 78212
                           Tel: (210) 212-6700
                           Fax: (210) 249-0116
  Attorney on Appeal       Marilee H. Brown
                           391 Landa Street
                           New Braunfels, TX 78130
                           Tel: (830) 629-6955
                           Fax: (830) 629-2559
                           marilee@hazelbrownlaw.com

APPELLEE – STATE OF TEXAS
   Attorney at Trial    Jennifer Tharp
                        DISTRICT ATTORNEY
                        Comal County District Attorney
                        150 N. Seguin Avenue
                        New Braunfels, TX 78130
                        Tel: (830) 221-1200
                        Fax: (830) 608-2008

                           Abigail Whitaker
                           Christine P. Rankin
                           Assistant District Attorney
                           150 N. Seguin Avenue
                           New Braunfels, TX 78130
                           Tel: (830) 221-1200
                           Fax: (830) 608-2008

  Attorney on Appeal       Josh Presley
                           Assistant District Attorney

                                                         2
150 N. Seguin Avenue
New Braunfels, TX 78130
Tel: (830) 221-1200
Fax: (830) 608-2008




                          3
                                                     TABLE OF CONTENTS


Contents
BRIEF OF APPELLANT ............................................................................................................... 8
   PRIOR OR RELATED APPEALS............................................................................................. 8
   STATEMENT OF CASE ........................................................................................................... 9
   GROUND OF ERROR ONE.................................................................................................... 11
   GROUND OF ERROR TWO................................................................................................... 12
   GROUND OF ERROR THREE ............................................................................................... 12
   STATEMENT OF FACTS ....................................................................................................... 12
   SUMMARY OF THE ARGUMENTS ..................................................................................... 15
   GROUND OF ERROR ONE.................................................................................................... 19
      Standard of Review............................................................................................................... 19
      Authorities............................................................................................................................. 20
      Analysis ................................................................................................................................. 23
   GROUND OF ERROR TWO................................................................................................... 30
      Standard of Review............................................................................................................... 30
   1) Mr. Michael Zamora’s conduct preceding Appellant’s trial was so remiss as to require
   Appellant to provide his own legal relief entitled to him under the United States and Texas
   Constitutions to no avail. .......................................................................................................... 31
      Authorities............................................................................................................................. 31
      Analysis................................................................................................................................. 31
   2) Mr. Collins’ assistance was clearly ineffective under the Strickland test as he deprived
   Appellant of a fair trial by barring his client from asserting the most basic defenses: a)
   counsel barred himself from disputing the evidence; b) counsel barred his client from
   requesting the lesser included offense be considered. .............................................................. 33
      Authorities............................................................................................................................. 33
      Analysis................................................................................................................................. 34
   3) David Collins provided per se ineffective assistance of counsel as he barred his client from
   requesting a lesser included offense in the charge to the jury .................................................. 35
      Authorities............................................................................................................................. 35
      Analysis................................................................................................................................. 36
   4) Trial counsel’s lack of inquisition into the quantity, value, and other alternatives caused his
   performance to be grossly deficient, prejudicing appellant’s right to a fair and reliable trial .. 37

                                                                                                                                                 4
      Authorities............................................................................................................................. 37
      Analysis................................................................................................................................. 38
   5) Counsel at trial abrogated his duty to investigate the physicality of the evidence in order to
   obtain knowledge about the plausibility of the accusations against his client causing appellant
   to be stripped of any possibility of a Fair trial .......................................................................... 39
      Authorities............................................................................................................................. 39
      Analysis................................................................................................................................. 39
GROUND OF ERROR THREE ................................................................................................... 40
THE EVIDENCE ADDUCED AT TRIAL IS LEGALLY INSUFFICIENT TO SUPPORT
APPELLANT’S CONVICTION AND PUNISHMENT AS NO DIRECT EVIDENCE WAS
PROVIDED TO SUBSTANTIATE THE STATE’S ALLEGATIONS AS TO THE QUANTITY
OF CARTONS WITHIN THE STOLEN BOX OR LINK THE NUMBER OF CARTONS NO
LONGER IN INVENTORY TO APPELLANT ........................................................................... 40
   A. Standard of Review............................................................................................................. 40
   B. Discussion ........................................................................................................................... 41
      Authorities............................................................................................................................. 41
      Analysis ................................................................................................................................. 42
   CONCLUSION......................................................................................................................... 43
   PRAYER................................................................................................................................... 44




                                                                                                                                                 5
                                                TABLE OF AUTHORITIES

Cases
Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972...... 22, 23, 25, 27
Blumenstetter v. State, 117 S.W.3d 541, 2003 Tex. App. LEXIS 8387 (Tex. App.—Texarkana
   2003) ......................................................................................................................................... 27
Chapmans v. Evans, 744 S.W.2d 133, 135 (Tex. Crim. App. 1988 ............................................. 25
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) .................................................. 41
Deeb v. State, 815 S.W.2d 692, 704 (Tex. Crim. App. 1991) ...................................................... 25
Doggett v. US, 505 U.S. 647, 655-56 120 L. Ed. 2d 520, 112 S. Ct. 2686 (1992). ...................... 28
Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003) .................................................... 26
Ex parte Overton, 444 S.W.3d 632, 641 (Tex. Crim. App. 2014)................................................ 31
Ex parte Skinner, 2009 Tex. App. LEXIS 6340 *6 (Tex. App—Corpus Christi 2009, mem. opp.
   ................................................................................................................................................... 19
Ex parte Skinner, 2009 Tex. App. LEXIS at *8-9 ........................................................................ 21
Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990) ............................................... 39
Flores v. State, 576 S.W.2d 632, 634 (Tex. Crim. App. 1978) .................................................... 37
Granek v. Tex. State Bd. Of Med. Exam’rs, 172 S.W.3d 761, 773 (Tex. App.—Austin 2005, no
   pet.) ........................................................................................................................................... 29
Hull v. State, 699 S.W.2d 220, 221-224 (Tex. Crim. App. 1985). ............................................... 25
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ................. 40
King v. State, 649 S.W.2d 42, 43 (Tex. Crim. App. 1983) ........................................................... 39
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) ..................................................... 33
Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)............................................... 31
Miniel v. State, 831 S.W.2d 310, 324 (Tex. Crim. App.) ............................................................. 37
Moore v. Arizona, 414 U.S. 25, 26-27, 38 L. Ed. 2d 183, 94 S. Ct. 188 (1973) (per curiam)...... 27
Nelson v. Hargett, 989 F.2d 847, 857 (5th. Cir. 1993) ................................................................. 21
Okonkwo v. State, 398 S.W.3d 689, 697 (Tex. Crim. App. 2013)................................................ 33
Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim. App. 1983) ............................................ 22, 26
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006................................................ 31
State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999) .................................................... 22
State v. Munoz, 991 S.W.2d 818, 821-23 (Tex. Crim. App. 1999)............................................... 26
State v. Rangel, 980 S.W.2d 840, 843 (Tex. App.—San Antonio, 1998, no pet.).................. 22, 26
State v. Ybarra, 942 S.W.2d 35, 36-37 (Tex. App.—Corpus Christi, 1996, pet. dism’d) ............ 19
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)30, 31, 35,
   37
Tarango v. State, 2007 Tex. App. LEXIS 2247 (Tex. App.—El Paso 2007, pet. ref’d) .............. 35
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) .................................................. 31
Turner v. State, 2014 Tex. App. LEXIS 8706 (Tex. App.—Austin 2014, pet. ref’d) .................. 33
Washington v. State, 326 S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2010, no pet.) ...... 19
Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009)................................................. 30
Wood v. State, 4 S.W.3d 85, 87 (Tex. App.—Fort Worth, 1999, pet. ref’d) ................................ 35
Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) .............................. 19, 20, 22, 23


                                                                                                                                                       6
Other Authorities
Ex parte Chambers, 612 S.W.2d 572, 573-74 (Tex. Crim. App. 1981) ....................................... 24
Sixth Amendment of the United States Constitution .................................................................... 25
Speedy Trial Act ........................................................................................................................... 23
Texas Constitution .................................................................................................................. 20, 25
United States Constitution ............................................................................................................ 20
United States v. MacDonald, 456 U.S. 1, 7, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982)............... 21
Statutes
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)..................................................... 41
Roberson v. State, 80 S.W.3d 730, 742 (Tex. App.—Houston [1st Dist.] 2002, no pet.) ............ 41
Tex. Code of Crim. Proc. art. 32.01........................................................................................ 21, 24
Tex. Penal Code §31.03 ................................................................................................................ 41
Texas Code of Criminal Procedure article 11.14.................................................................... 21, 24




                                                                                                                                             7
                                      03-14-00407-CR

                               COURT OF APPEALS

                IN THE THIRD JUDICIAL DISTRICT OF TEXAS

                                AT AUSTIN, TEXAS


JERRYL ROBINSON, APPELLANT                                   §
                                                             §
VS.                                                          §
                                                             §
THE STATE OF TEXAS, APPELLEE                                 §


                             BRIEF OF APPELLANT

ADDRESS TO THE COURT:

TO THE HONORABLE COURT OF APPEALS:

      Appellant, Jerryl Robinson, respectfully submits this brief, appealing from a

final conviction after a jury trial on the merits in the 274th Judicial District Court of

Comal County, Texas, wherein Appellant was convicted by a jury of one count of

Theft – a state jail felony enhanced by prior theft convictions to a second degree

felony and sentenced by the jury to fifteen (15) years confinement.


                        PRIOR OR RELATED APPEALS

There are no prior related appeals.




                                                                                       8
                             STATEMENT OF CASE

       The following is a brief timeline to aid the Court in its understanding of the

events:

  i.   November 17, 2011, Appellant was arrested via an arrest warrant and

       provided his warnings by a Magistrate on November 18, 2011 [CR, pp. 7-9;

       Supp. CR, pp. 15].

 ii.   February 27, 2012, after having been incarcerated for over 90 days, Appellant

       filed a handwritten Motion to Release (hereafter referred to as Appellant’s “90

       day petition”) [CR, pp.]. A hearing was never held.

iii.   June 10, 2013, after having been held on bail for more than 180 days,

       Appellant, by his own handwritten motion, properly filed a Petition for Writ

       of Habeas Corpus for Discharge for Delay (hereafter referred to as Appellant’s

       “180 day writ”) as he was held on bail for his appearance to answer criminal

       accusations and no indictment had been presented after 180 days from his date

       of commitment [CR, pp. ]. Despite Appellant’s request, no hearing was ever

       held on this writ.

iv.    August 5, 2013 - With no action from the trial court on Appellant’s 180 day

       writ, Appellant filed a petition for writ of mandamus (hereafter referred to as

       Appellant’s “petition for mandamus relief”) with the Third Court of Appeals



                                                                                    9
      requesting the trial court be ordered to hear Appellant’s 180 day writ [Supp.

      CR, pp. 31].

 v.   August 30, 2013, the Third Court of Appeals issued a memorandum opinion

      denying mandamus relief stating “since relator filed his petition, the trial court

      has acted on the petition” [Supp. CR, pp. 32].

vi.   August 14, 2014, Appellant was charged by indictment with two counts of

      theft: One for theft of property with a value of less than $1,500; the other for

      theft of property with a value of more than $1,500 but less than $20,000 [CR,

      pp. 10-13]. The indictment contained six enhancement paragraphs alleging

      prior offenses of various natures. [CR, pp. 10-13].

      Attorney Michael Zamora was appointed counsel directly after Appellant’s

arrest in 2011, however, on September 26, 2013, Mr. Zamora withdrew and new

counsel, Mr. David Collins was appointed [CR, pp. 14]. Appellant’s second attorney

filed a motion to sever the two counts with a brief in support thereof on January 30,

2014. [CR, pp. 37-49]. A hearing was held on February 26, 2014, after which,

Appellant’s motion was denied. [Supp. CR, pp. 49]. Appellant pled not guilty and a

jury trial commenced as to guilt/innocence on June 9, 2014 [RR, Vol. 2, pp. 4]. Once

the State rested its case in chief, on June 10, 2014, Appellant, through his counsel,

moved for a Directed Verdict, in writing and orally [RR, Vol. 3, pp.122-128]. Both




                                                                                     10
motions were denied [RR, Vol. 3, pp. 125]. The jury then heard evidence and

determined punishment on June 11, 2014 [RR, Vol. 4, pp. 101].

      On June 11, 2014 the jury entered a verdict of “Guilty” as to Count One of the

indictment. [CR, pp. 74; RR, Vol. 3, pp.152]. Count Two was never read to the jury

due to it being struck during motions for directed verdict. [RR, Vol. 3, pp. 125-127].

Appellant plead “true” to the enhancement paragraphs of the indictment and the jury

sentenced Mr. Robinson to 15 years in prison. [RR, Vol. 4 pp. 19; CR, pp. 77-86,

101-102]. Appellant timely filed his notice of appeal on December 3, 2012. [CR,

p. 211].

      The reporter’s record was filed on October 3, 2014. The clerk’s record was

filed on July 17, 2014. Appellant’s Brief was originally due on or about November

3, 2014, but counsel on appeal was required to participate in a month-long jury trial.

Appellant filed two Motions for Extension of Time to File Appellant’s Brief, which

were granted. Appellant’s Brief is hereby filed on February 6, 2015, complaining of

three points of error.


                           GROUND OF ERROR ONE

The trial court’s error led to a substantial, presumptively prejudicial and
unnecessary delay, which subjected Appellant to oppressive pretrial
incarceration, high levels of anxiety and concern, and impaired
Appellant’s ability to adequately prepare his defense as nearly twenty one
(21) months elapsed between the time Appellant was arrested and the
time Appellant was eventually formally indicted.


                                                                                   11
                            GROUND OF ERROR TWO

Both counsel to Appellant provided ineffective assistance to Appellant
because counsel were seriously deficient in their performances causing
prejudice to Appellant’s defense and ultimately, depriving Appellant of
a fair and reliable trial.

                          GROUND OF ERROR THREE

The evidence adduced at trial is legally insufficient to support Appellant’s
conviction and punishment as no direct evidence was provided to
substantiate the State’s allegations as to the quantity of cartons within the
stolen box or link the number of cartons no longer in inventory to
Appellant.

                           STATEMENT OF FACTS

      On November 10, 2011 a complaint was filed for the arrest of Jerryl Robinson,

Appellant, alleging a theft of property with a value of between $1,500 and $20,000

[CR, pp. 7-8]. Appellant was subsequently arrested on November 17, 2011 and given

his warnings by the Magistrate on the 18th of November, 2011 [Supp. CR, pp. 4].

Appellant was then detained, without the ability to pay his bond, in jail for one

hundred and three days. Appellant filed a handwritten motion to release on February

27, 2012, with no hearing held or order from the court. [Supp. CR, pp. 6-11].

Appellant’s was released on bail March 8, 2012 [Supp. CR, pp. 17]. After violating

his bond provisions, Appellant returned to jail on May 11, 2013. [Supp. CR, pp. 13-

14, 19].



                                                                                12
         June 10, 2013, another four hundred and seventy days elapsed from

Appellant’s motion to release with no trial or indictment, Appellant then exercised

his rights and filed a handwritten motion to dismiss for lack of presentment of an

indictment. [Supp. CR, pp. 22-27]. Neither a hearing nor an order have ever been

made for this writ. Then, on August 14, 2013, after nearly twenty one months,

Appellant was indicted on two counts; (1) theft of property valued at less than

$1,500, and (2) theft of property valued between $1,500 and $20,000. [CR, pp. 10-

13].

         Appellant proceeded to trial on June 9, 2014 with representation provided by

Mr. David Collins. [CR, pp. 14; RR, Vol. 2, pp. 4-144, Vol. 3, pp. 9-155; Vol. 4, pp.

6-104]. Appellant is accused of stealing cartons of cigarettes from a local CVS store

on November 8, 2011 as a co-party. [CR, pp. 67-73;RR, Vol. 3, pp. 27-29].1

         While at trial, on June 10, 2014, the State produced an alleged “ledger”2

evidencing the number of cartons no longer in the CVS store’s inventory and the



1
  The State put on video surveillance evidence showing Appellant and another gentleman entered the CVS store
around 7:30 p.m. [RR, Vol. 5, S5]. Appellant asked for assistance from an employee to print photographs off his cell
phone [RR, Vol. 3, pp. 47-51]. Meanwhile, the other gentleman who Appellant accompanied into the CVS store, snuck
behind the cashier’s counter and picked up a box [RR, Vol. 3, pp. 51]. The other gentleman then proceeded to carry
the box out of the store with the CVS employee running after him [RR, Vol. 3, pp. 52-54]. The State also produced a
CVS ledger and testimony from the CVS employee involved alleging that the box contained cartons of cigarettes with
a value of over $1,900 [RR, Vol. 3, pp. 52-54]. Notably, only an instruction on the law of parties was read to the jury
without any charges for conspiracy ever alleged against Appellant or his co-defendant.
2
  In the testimony of the CVS employee, the terms invoice and inventory were used to describe the documentation
used to reach the conclusion that 36 cartons of cigarettes were missing. However, the document produced by the CVS
employee, and later admitted into evidence, is a completely distinct document, only showing what is not in inventory.
The term ledger is more closely aligned with what the document actually purports to represent, as a receipt denotes
that a purchase was made, an inventory denotes what is in the inventory and an invoice relates to an order of some
sort.

                                                                                                                   13
value of said missing cartons. [RR, Vol. 3, pp. 55-66]. Having never seen the piece

of evidence before, Mr. Collins objected to its admissibility raising issues of surprise

[RR, Vol. 3, pp. 56]. The Court overruled the objection and allowed Exhibit 6, the

CVS ledger, into evidence, which indicated the items that were on the inventory

sheet from the morning of November 8, 2011, but were never stocked on the CVS

shelves. [RR, Vol. 3, pp. 43, 52, 65-66]. Witness testimony was given about Exhibit

6, indicating that it was printed the night of the incident at issue, November 8,

however, the time stamp printed on the ledger show it was printed mid-morning the

following day, November 9, 2011. [RR, Vol. 3, pp. 59, Vol. 5, S6]. The same witness

was also unable to recall the number of cameras that captured the event in question

and had to be asked several times, even led, but inevitably admitted that she “thought

it was three. I’m sorry.” [RR. Vol. 3, pp. 70].

      At the closing of the State’s case in chief, Mr. Collins moved for a directed

verdict, both orally and in writing. Mr. Collins’ written motion argued that no

evidence was produced as to Appellant’s intent to steal the property while Mr.

Collins’ oral motion was based upon the dollar figures provided in Exhibit 6. [CR,

pp. 64-66; RR, Vol. 3, pp. 122-130]. Mr. Collins’ argued that Count 2, the charge of

appropriating property, with the intent to deprive, of a value of $1,500 or less, was

not substantiated by the evidence as a ledger showing the value to be over $1,900

had been entered into evidence and requested the charge be dropped. [RR, Vol. 3,


                                                                                     14
pp. 123-126]. After much discussion with the Court, and the State explaining that

Count 2 was brought based on the possibility that the jury had not found the ledger

to accurately reflect the number of cartons or dollar value, the Court overruled both

directed verdict motions but struck Count 2, except the portion mentioning “…and

the said defendant had previously been convicted two or more times.” [RR, Vol. 3,

pp. 123-126]. The State then requested that defense not be permitted to argue the

monetary value of the items stolen being that below $1,500 as they had that count

stricken. [RR, Vol. 3, 130-131]. Without objection from defense, the Court granted

the motion. [RR, Vol. 3, pp. 130-131].

      On June 11, 2014, the jury found Appellant “Guilty” of theft of property

valued between $1,500 and $20,000 and was subsequently sentenced by the jury to

15 years confinement. [CR, pp.74, 86; RR, Vol. 3, pp. 152, Vol. 4, pp. 101-102].


                      SUMMARY OF THE ARGUMENTS

       Appellant’s constitutional right to a speedy trial was deprived by the trial

court errors because, despite his pleas, no hearings were held and no action was taken

regarding Appellant’s 180 day writ. The State was not ready for trial, and after 180

days, he had not formally charged with a crime. Within 180 days from his arrest,

November 17, 2011, the State had taken no action on Appellant’s case, in direct

violation of the United States and Texas Constitutions. Appellant justly exercised

his right to be free from oppressive pretrial incarceration and uncertainty by filing

                                                                                   15
his 180 day writ based on the Sixth Amendment of the United States Constitution,

Article 1, Section 10 of the Texas Constitution and the Texas Code of Criminal

Procedure Article 32.01.

      The trial court, however, erred by failing to act on the writ request to eradicate

the injustices imposed upon Appellant. The trial court’s inadequate constitutional

protection of Appellant harmed Appellant by depriving him of his pre-trial liberty

and permitting undue delay. This is a clear abuse of discretion and reversible error.

      Further, Mr. Michael Zamora, the initially appointed counsel, during this time

failed to investigate, and file these constitutional writs on behalf of his client. It

seems he never noticed his client was being held on bail for more than 180 days

without indictment, or after the last day of the next term of the court, in violation of

Article 32.01 of the Texas Code of Criminal Procedure. Mr. Zamora wholly failed

to investigate or draft any motions to aid his client in his defense and/or dismissal.

Rather Appellant himself had to research, draft and file both motions entirely on his

own. Had counsel performed his base duties, he would have been able to effectively

advocate to: (1) release his unindicted client; (2) move for dismissal of charges; or

(3) prevent undue and prejudicial delay of trial.

      In addition, Mr. David Collins, appointed counsel for trial provided

inadequate assistance of counsel in several different ways. Mr. Collins did properly

preserve error as to the admission of Exhibit 6, a ledger used for inventory purposes


                                                                                     16
for the CVS store. However, what’s more, counsel failed to investigate the

physicality of the evidence or to cross-examine the witness as to blatant

discrepancies in testimony. He never asked when the ledger was created, how the

accusation of 36 cartons came about, or any other plausible explanations as to the

whereabouts of the missing cartons over the course of over 24 hours in order to raise

a reasonable doubt in the minds of the jurors.

           Later in trial Mr. Collins’ inadequacies continued. After the trial court

overruled his objection to Exhibit 6 and the State rested its case in chief, Mr. Collins

proceeded with both oral and written motions for directed verdict.3 Mr. Collins’ oral

motion requested that Count 2, the lesser charge, be stricken, as the evidence did not

support the charge. Mr. Collins argument was based on Exhibit 6, the ledger, which

indicated the value of the property missing to be more than $1,900, before tax. Upon

the Court striking Count 2, the State requested that Appellant and his counsel not be

able to argue the value of the stolen property was below $1,500. Mr. Collins

hamstrung his client – by preventing him from mitigating culpability or requesting

a lesser included - or asserting really any logical defense at all. Defense counsel

actually agreed to not argue against the value or number of cigarettes in the box

stolen, thereby, winning the State’s case for them.




3
    Mr. Collins written motion for directed verdict is not at issue here.

                                                                                     17
       There was no logical trial strategy presented, such as mistaken identity,

incredibility of the witness, etc. Therefore, defense counsel was ineffective. In

Texas, counsel has per se violated the Strickland factors when they fail to ask for a

lesser included offense, here the lesser charge for theft of property valued at less

than $1,500.

       Trial counsel, like initially appointed counsel, failed to perform his duty to

investigate. The box in question was never recovered, nor any of the contents alleged

to be contained inside. However, trial counsel never attempted to investigate the

physicality of a similar box in dimension in order to determine how many cartons of

cigarettes could have fit. Such a failure on the part of counsel precluded Appellant

from making any sort of proper defense and certainly, from any chance of having a

fair and reliable trial.

       Lastly, the evidence produced at trial was legally insufficient to support the

verdict because it was physically impossible for a reasonable juror to count 36

cartons in the box taken. The video evidence used shows the box stolen and when

broken down into still frames, it is unclear how many cartons were contained therein

thus, not permitting any reasonable juror to find 36 cartons to fit. Also, the State

failed to provide evidence linking the number of cartons alleged to be no longer in

CVS’s inventory by the alleged ledger to Appellant. With the number of cartons in

the box in question being unknown, the value of the property stolen is consequently


                                                                                  18
unknown, and without a link provided between Appellant and the cartons said to no

longer be in stock, the guilty verdict based solely on Count 1, is therefore, not

supported.

                  GROUND OF ERROR ONE
THE TRIAL COURT’S ERRORS LED TO A SUBSTANTIAL,
PRESUMPTIVELY PREJUDICIAL AND UNNECESSARY DELAY,
WHICH SUBJECTED APPELLANT TO OPPRESSIVE PRETRIAL
INCARCERATION, HIGH LEVELS OF ANXIETY AND CONCERN, AND
IMPAIRED APPELLANT’S ABILITY TO ADEQUATELY PREPARE HIS
DEFENSE AS NEARLY TWENTY ONE (21) MONTHS ELAPSED
BETWEEN THE TIME APPELLANT WAS ARRESTED AND THE TIME
APPELLANT WAS EVENTUALLY FORMALLY INDICTED.


Standard of Review
     When reviewing a trial court’s ruling on a speedy trial claim, a bifurcated

standard of review is applied: First, for an abuse of discretion as to the factual

components; and second, a de novo review of the legal components. Zamorano v.

State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002); Ex parte Skinner, 2009 Tex.

App. LEXIS 6340 *6 (Tex. App—Corpus Christi 2009, mem. opp.). In its analysis,

the reviewing court is to utilize only the record as it existed before the trial court at

the time of the filing of the writ of habeas corpus. Ex parte Turner, 612 S.W.2d 611,

612 (Tex. Crim. App. 1981); Washington v. State, 326 S.W.3d 701, 706 (Tex.

App.—Houston [1st Dist.] 2010, no pet.); State v. Ybarra, 942 S.W.2d 35, 36-37

(Tex. App.—Corpus Christi, 1996, pet. dism’d). Although a pre-trial writ of habeas

corpus is not ordinarily available to defendants for speedy trial claims, in situations

                                                                                      19
such as this, where the State has failed to bring formal charges in a timely fashion,

no other adequate remedy exists.4

        Additionally, because speedy trial issues have been raised, the appellate court

is to apply a balancing test of four factors to determine when pre-trial delay denies

an accused of his right to a speedy trial. These factors, also known as the Barker

factors include: “(1) whether delay before trial was uncommonly long; (2) whether

the government or the criminal defendant is more to blame for the delay; (3) whether,

in due course, the defendant asserted his right to a speedy trial; and (4) whether he

suffered prejudice as the delay’s result.” Zamorano, 84 S.W.3d at 648 (quoting

Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)).

        Discussion

        Authorities

        One’s fundamental right to a speedy trial is guaranteed under the Sixth

Amendment of the United States Constitution as well as Article 1, Section 10 of the

Texas Constitution. U.S. CONST. amend. XIV; Tex. Const. art. I, § 10. This right is

immediately triggered by the happening of either the arrest or indictment of an

accused, whichever happens first. United States v. MacDonald, 456 U.S. 1, 7, 102



4
  Ex parte Skinner, 2009 Tex. App. LEXIS at *6; Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001)
(citing Ex parte Delbert, 582 S.W.2d 145, 146 (Tex. Crim. App. 1979); Ex parte Martin, 6 S.W.3d 524, 525 (Tex.
Crim. App. 1999); Ex parte Jones, 449 S.W.2d 59, 60 (Tex. Crim. App. 1970)); State v. Fisher, 198 S.W.3d 332,
335 (Tex. App.—Texarkana 2006, pet. ref’d); Ex parte Lamar, 184 S.W.3d 332, 323-24 (Tex. App.—Fort Worth
2005, pet. ref’d).

                                                                                                             20
S. Ct. 1497, 71 L. Ed. 2d 696 (1982); Nelson v. Hargett, 989 F.2d 847, 857 (5th. Cir.

1993); Ex parte Skinner, 2009 Tex. App. LEXIS at *8-9. To ensure one’s rights are

not violated, it is the State’s duty to indict the defendant, whether being held in

incarceration or are out on bail for his appearance, within either 180 days or before

the last day of the next term of the court after the defendant’s commitment. Tex.

Code of Crim. Proc. art. 32.01. Upon the filing of a petition for writ of habeas corpus

alleging a violation of the State’s duties under article 32.01, the trial court is required

to dismiss the criminal accusation and discharge bail, unless the State can show good

cause, supported by an affidavit, as to why they have not properly acted upon their

duty. Id.

       While an accused may bring a claim involving a speedy trial issue at any time,

when brought before indictment, such claim is properly brought in a petition for writ

of habeas corpus under article 32.01. Id. Further, under the Texas Code of Criminal

Procedure article 11.14, the petition for writ of habeas corpus must contain certain

elements, including, for whom the petition is to benefit, that the party is illegally

confined, a prayer and an oath. Tex. Code Crim. Proc. art. 11.14. No other

requirements as to form or substance are stated in order for the petition to be heard

or acted up on by the court.

       It is then up to the trial court to assess one’s right to a speedy trial, by utilizing

the four Barker factors: “(1) whether delay before trial was uncommonly long; (2)


                                                                                          21
whether the government or the criminal defendant is more to blame for the delay;

(3) whether, in due course, the defendant asserted his right to a speedy trial; and (4)

whether he suffered prejudice as the delay’s result.” Zamorano, 84 S.W.3d at 648

(quoting Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 33 L. Ed. 2d 101

(1972)). In addressing these factors, the first is akin to a threshold issue, in that, if

the length of delay is not “presumptively prejudicial,” the remaining factors are not

to be considered. Barker, 33 L. Ed. 2d at 117, State v. Munoz, 991 S.W.2d 818, 821

(Tex. Crim. App. 1999).

      In order for a delay to be “presumptively prejudicial” to the accused, the courts

are to take all the surrounding circumstances into account. Zamorano, 84 S.W.3d at

648; Harris, 827 S.W.2d at 956; Barker, 407 U.S. at 530. Certain periods of time,

however, have been held by Texas courts to be prima facie evidence of a

“presumptively prejudicial” delay. Id. The Fourth Court of Appeals in San Antonio

held that a time as short as eight months is “presumptively prejudicial,” thus

triggering the review of the remaining three speedy trial factors. State v. Rangel, 980

S.W.2d 840, 843 (Tex. App.—San Antonio, 1998, no pet.). While the Texas Court

of Criminal Appeals has found a delay of seventeen months to be “presumptively

prejudicial.” Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim. App. 1983).

      The second factor, reasons for the delay, is fact specific and the court is to

take all of the relevant circumstances into account in determining who is more at


                                                                                      22
fault, giving different weights to different reasons.5 Zamorano, 84 S.W.3d at 649.

The third factor depends on the timing of the filing of the accused’s petition for writ

of habeas corpus and the forth factor is again, dependent on the facts in the particular

case. Courts should consider the accused’s rights under the Speedy Trial Act, which

was designed to : “(1) prevent oppressive pretrial incarceration; (2) minimize

anxiety and concern of the accused; and (3) limit the possibility that the defense will

be impaired.” Barker, 407 U.S. at 532.


        Analysis
        In Mr. Robinson’s case, he filed a pro se, handwritten 180 day writ on June

10, 2013 requesting dismissal of the charges against him and release from bail

pursuant to article 32.01 and his fundamental right to a speedy trial. Appellant waited

from his arrest on the 17th of November of 2011 until August 14, 2013 to be indicted.

If an accused has not been previously arrested as to a charge, the State is only bound

by the related statute of limitations, however, once the accused has been arrested,

the clock starts ticking on the 180 day bar. See Tex. Code Crim. Proc. art. 32.01

According to article 32.01, the State must present an indictment of the charges

against the accused before 180 days or the last day of the next term of the court from

the date the accused was detained in custody or held to bail. Id.


5
 A deliberate attempt on the part of the State to delay the trial in order to hamper the defense, weighs heavily
against the State, while, negligence or any overcrowded docket should be weighed less heavily, but nevertheless
considered and weighed against the State. Barker, 407 U.S. at 531, Strunk v. US, 412 U.S. 434, 435, 37 L. Ed. 2d
56,96 S. Ct. 2260 (1973); Turner, 545 S.W.2d at 137.

                                                                                                                   23
         Here, over five hundred and fifty days had lapsed from the time Appellant was

originally arrested until Appellant filed his 180 day writ and nearly twenty one

months, from the date of Appellant’s arrest, before Appellant was actually indicted.

Appellant filed a timely and proper 180 day writ petition, meeting all the statutory

requirements as to form and substance of the petition, but received no answer from

the State or action by the trial court.6

         Besides the duty to indict imposed on the State, article 32.01 also contains

language requiring the court to dismiss any criminal accusation and discharge bail

upon the showing that the defendant has been detained or held to bail for the limited

period of time with no formal indictment; the only caveat being, the allowance for

the State to provide a showing, supported by affidavit, of “good cause” for the delay.

Tex. Code Crim. Proc. art. 32.01. With Appellant’s arrest taking place on November

7, 2011 and his 180 day writ being filed on June 10, 2013, nearly two months before

his formal indictment, on August 14, 2013, Appellant’s case is the very type article

32.01 is designed to dismiss. However, no answer was provided by the State and no

action in the form of a hearing or an order was taken on the part of the trial court.7


6
  Article 11.10 of the Texas Code of Criminal Procedure requires a trial court to examine a petition for writ of
habeas corpus, but only applies once a defendant has been indicted. Tex. Code. Crim. Proc. art. 11.10. A similar
statute does not exist for the present facts, however, Appellant asserts that the legislative intent behind requiring a
trial court to take action is the same. See Tex. Code. Crim. Proc. ch. 11. Additionally, a hearing on any motion is
required when a motion is filed, a request for a hearing is made and upon a showing that facts are controverted. Ex
parte Chambers, 612 S.W.2d 572, 573-74 (Tex. Crim. App. 1981). Although the State failed to provide any answer
to the claims in Appellant’s petition, the facts were obviously controverted as the petition was effectively denied.
7
  Appellant filed a pro se, handwritten writ for mandamus relief with the Third Court of Appeals August 5, 2013
requesting the trial court take action on his 180 day writ [Supp. CR, pp. 31]. On August 30, 2013, a Memorandum

                                                                                                                     24
         Appellant’s 180 day writ also alleged violation of his right to a speedy trial

under the Sixth Amendment of the United States Constitution and Article 1,

Section 10 of the Texas Constitution. U.S. CONST. amend VI; Tex. Const. art. I, §

10. The United States Supreme Court has enumerated several factors to be

considered as a balancing test by the trial court, and if required, by the reviewing

court, when an issue involving one’s fundamental right to a speedy trial arise.

Barker, 407 U.S. at 514. These Barker factors, adopted by the Texas Court of

Criminal Appeals in Hull v. State, include: (1) length of delay; (2) reason for the

delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant

resulting from the delay.8

         As previously referenced, the first factor, the length of delay, here being

nearly twenty one months, greatly exceeds those time periods already established



Opinion from the Third Court of Appeals, received by both the District Clerk’s Office and Appellant, indicates that
the trial court provided some sort of documentation to lead the Third Court to believe action had been taken on the
petition [Supp. CR, pp. 32]. With no action, other than the State’s formal indictment of Appellant on August 14,
2013, Appellant sent letters to both the Court of Criminal Appeals and the District Clerk’s Office in order to try and
receive more information related to his case [Supp. CR, pp. 20, 28, 33, 35-36, 37, 40-42, 46-48, 50, 51-52 ].
           January 3, 2014, the District Clerk responded that Appellant’s petition filed in June had been done so
incorrectly and instructions were enclosed on proper form [Supp. CR, pp. 39]. Nearly seven months later Appellant
received this notification of improper form, however, article 11.14 of the Texas Code of Criminal Procedure
provides that the petition must only “substantially” state: (1) the person for whose benefit the application is made is
illegally restrained in his liberty and by whom, naming parties, if their names are known, or if unknown, designating
and describing them; (2) may state only that the party is illegally confined or restrained in his liberty; (3) a prayer;
and (4) an oath must be made that the allegations of the petition are true, according to the belief of the petitioner.
Tex. Code of Crim. Proc. art. 11.14. Appellant’s 180 day writ meets all of these requirements and therefore, should
have been put before and considered by the court in an expeditious manner. It is still unclear, however, what action
the trial court supposedly took as the basis for the Third Court’s rejection of mandamus relief.
8
  Barker, 407 U.S. at 514; Harris, 827 S.W.2d at 956; Deeb v. State, 815 S.W.2d 692, 704 (Tex. Crim. App. 1991);
Chapmans v. Evans, 744 S.W.2d 133, 135 (Tex. Crim. App. 1988); Hull v. State, 699 S.W.2d 220, 221-224 (Tex.
Crim. App. 1985).


                                                                                                                     25
by courts across this State as being prima facie evidence of a “presumptively

prejudicial” delay (some court holding as low as eight months and others higher at

seventeen months to be sufficient). Phillips v. State, 650 S.W.2d 396, 399 (Tex.

Crim. App. 1983); State v. Rangel, 980 S.W.2d 840, 843 (Tex. App.—San

Antonio, 1998, no pet.). A finding of a “presumptively prejudicial” delay allows

the trial court to move forward with its analysis of the Barker factors, with factor

one weighing against the State.

      Factor two, the reason for the delay, is a highly fact specific inquiry delving

into the basis behind the parties inaction and possibly fault in not acting sooner. See

State v. Munoz, 991 S.W.2d 818, 821-23 (Tex. Crim. App. 1999). Here, because no

answer was filed by the State in order to show “good cause” for the delay and neither

a hearing nor an order is contained in the Clerk’s record, the reason for the State’s

delay is unclear. When the record is silent regarding the reason for the delay, the

Court of Appeals is to weigh this factor against the State. Dragoo v. State, 96 S.W.3d

308, 314 (Tex. Crim. App. 2003). Further, Appellant acted diligently by filing not

only his 180 day writ but had also previously filed a 90 day petition under article

17.151 because he had been held in incarceration for more than 90 days and the with

no indication from the State they were ready, or had even indicted him [Supp. CR,

pp. 6-11, 22-27].




                                                                                       26
         Factor three, Appellant’s assertion of his rights, also weighs against the State.

Appellant’s 180 day writ was filed on June 10, 2013 [Supp. CR, pp. 22-27].

Although there is no bright line when an assertion of speedy trial need be made,

when an indictment has yet to be filed, a 180 day writ requesting dismissal for delay

is required to be made before a formal indictment is brought, as otherwise it is

waived. See Barker, 407 U.S. at 527; see also Blumenstetter v. State, 117 S.W.3d

541, 2003 Tex. App. LEXIS 8387 (Tex. App.—Texarkana 2003); see also Herrera

v. State, 2009 Tex. App. LEXIS 9690 (Tex. App.—San Antonio, 2009). Here,

Appellant’s motion was filed over two months before an indictment was brought and

therefore, was in due course.

         The fourth factor, weighing prejudice to the defendant due to the delay. This

is abundant here. The right to a speedy trial guaranteed by both the United States

and Texas Constitutions is designed to protect against (1) oppressive pretrial

incarceration; (2) anxiety and concern of the accused; and (3) the possibility that the

defense will be impaired. Barker, 407 U.S. at 532. “Although the last type of

prejudice is the most serious, a defendant’s claim of a speedy trial violation need not

necessarily demonstrate prejudice to his ability to present defensive matters.”9

Barker, 407 U.S. at 532.


9
 Appellant's failure to cite any specific “demonstrable” prejudice--that is, impairment of his ability to present
potential defenses--does not doom his claim, since excessive delay can compromise a trial's reliability in
unidentifiable ways. Moore v. Arizona, 414 U.S. 25, 26-27, 38 L. Ed. 2d 183, 94 S. Ct. 188 (1973) (per curiam).
“Though time can tilt the case against either side . . . one cannot generally be sure which of them it has prejudiced

                                                                                                                        27
         Appellant was incarcerated nearly the entire two and half years leading to trial,

with nearly two of those years spent in jail without a formal indictment. This caused

his liberties to be restrained and subjected him to the very type of pretrial oppressive

incarceration the speedy trial act was designed to protect against. Appellant also

suffered from great amounts of anxiety, suspicion and hostility as evidenced from

the numerous letters sent to the district clerk’s office as well as various courts,

including the trial court, Third Court of Appeals and even if Texas Court of Criminal

Appeals, where Appellant believed the system had failed him and that he would

never receive answers as to the status of his indictment, trial or 180 day writ [Supp.

CR, pp. 20, 28, 33, 35-36, 37, 40-42, 46-48, 50, 51-52].

         Additionally, Appellant’s defense was inevitably impaired by the passage of

time, as evidence becomes unavailable and the memories of witnesses dissipate over

the course of the two and half gap.

         The merit of this case relied upon accounting for specific items alleged to have

been stolen, requiring exact dollar amounts and linkage to Appellant. The only

evidence produced as to quantity and value was a “ledger” evidencing the number

and value of cartons of cigarettes no on shelves around November 8, 2011. The




more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability
of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot
alone carry a Sixth Amendment claim without regard to the other Barker criteria, . . . it is part of the mix of relevant
facts, and its importance increases with the length of delay.” Doggett v. US, 505 U.S. 647, 655-56 120 L. Ed. 2d
520, 112 S. Ct. 2686 (1992).

                                                                                                                     28
evidence, however, shows the ledger was actually printed midmorning of November

9, 2011. The witness who testified as to the CVS ledger relied solely on the ledger

to indicate the number of cartons missing, with no direct knowledge or ability to

directly recall the specific facts because such a large amount of time had elapsed

from the offense to trial.

         Memories naturally fade over time. This infringes upon the accuracy of the

witness’ perceptions, and although traditionally tested through cross examination,

the ledger had already been entered into evidence, over counsel’s objection, thus

allowing the witness to use that information rather than having to personally recall

how these items were linked to Mr. Robinson. See Granek v. Tex. State Bd. Of Med.

Exam’rs, 172 S.W.3d 761, 773 (Tex. App.—Austin 2005, no pet.).10

         The trial court clearly abused its discretion in effectively denying Appellant’s

180 day writ by neglecting to take action on it. Appellant’s due process rights were

violated causing prejudice to his defense, anxiety, and oppressive pretrial

incarceration of over two and half years awaiting the State to take action or in the

alternative, for the trial court to grant him the relief he desperately and rightfully

requested.




10
   Further, Appellant argues he was unable to investigate the actual physical evidence against him. He should have
been able to examine the alleged box stolen and the physical number of cartons contained therein. But, the trial was
so far removed from the date of the offense and as such, was no longer available for his investigation

                                                                                                                  29
                     GROUND OF ERROR TWO
     BOTH COUNSEL TO APPELLANT PROVIDED INEFFECTIVE
      ASSISTANCE TO APPELLANT BECAUSE COUNSEL WERE
   SERIOUSLY DEFICIENT IN THEIR PERFORMANCES CAUSING
    PREJUDICE TO APPELLANT’S DEFENSE AND ULTIMATELY,
    DEPRIVING APPELLANT OF A FAIR AND RELIABLE TRIAL.

      Standard of Review

      Counsel’s representation is to be scrutinized under the Strickland v.

Washington test, requiring the appellate court to gauge the effectiveness of counsel

in relation to a defendant’s rights guaranteed under the Constitution. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under

Strickland, Appellant must show: (1) counsel’s performance was deficient as to not

function as the ‘counsel’ guaranteed under the Sixth Amendment of the United

States Constitution; and (2) that there is a reasonable probability that the result of

the proceeding would have been different, but for his counsel’s deficient

performance. Id. Typically, reviewing courts give great deference to possible trial

strategy counsel may have had, causing Appellant to have to provide evidence to

overcome such presumption. Id. at 689; Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009). Such evidence includes the clerk’s and reporter’s records

with clear indications of where the counsel’s performance was so deficient. Mallet

v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001).




                                                                                   30
1) Mr. Michael Zamora’s conduct preceding Appellant’s trial was so remiss as
to require Appellant to provide his own legal relief entitled to him under the
United States and Texas Constitutions to no avail.

       Discussion


      Authorities

      To prove his counsel provided ineffective assistance, Appellant must first

show that the counsel’s performance fell before an objective standard of

reasonableness. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). He secondly must

prove prejudice, meaning a reasonable probability exists (sufficient to undermine

confidence in the outcome), that but for counsel’s deficient conduct, the result would

have been different. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.

Counsel is then permitted to rebut any claims brought against him for ineffective

assistance of counsel, normally claiming trial strategy as a defense for his actions.

See Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Here,

Appellant contends no feasible trial strategy could justify counsel’s deficiencies.


      Analysis
      A trial strategy is one that is well thought out and investigated, not a hindsight,

knee-jerk reaction to a claim for ineffective assistance of counsel. See Ex parte

Overton, 444 S.W.3d 632, 641 (Tex. Crim. App. 2014). No sound trial strategy could

exist as to the failure on the part of Mr. Zamora to file a motion to release under

                                                                                      31
Article 17.151, as his client was sitting in jail for greater than the allotted 90 days,

without prosecution. And further, no viable defense of trial strategy can be used in

order to defend Mr. Zamora’s inaction, once again, for not filing a petition for writ

of habeas corpus requesting dismissal due to delay under article 32.01 with a client

in jail. This is basic defense attorney calendaring and common relief within the

courts.

         Not only were both of these matters adequately brought to the attention of

Mr. Zamora, as shown by the letters from Appellant to the Court, Mr. Zamora had

a duty, as counsel, to research and advocate for his client’s rights through motions

and petitions.11 [CR, ]. Further, when Appellant drafted and filed these motions and

petitions on his own, in order to protect his constitutionally guaranteed rights, Mr.

Zamora again was on notice, and further failed his client by not ensuring Appellant

received his day in court on these pressing matters [Supp. CR, pp. 28.] One

questions why counsel was appointed at all if even these basic principles were not

recognized.




11
   The Fourth Court of Appeals has recently found that when counsel chooses not to perform a useless or futile act,
such does not amount to ineffective assistance of counsel. The Court was addressing a claim for ineffective
assistance of counsel for failure to move for dismiss of an indictment under article 32.01 for speedy trial violations.
Such is the opposite situation in the present case, such a performance on the part of Mr. Zamora would not have
been useless or futile, because Appellant remained locked up and Appellant himself had time to draft and file a 180
day writ and file it with the clerk’s office over two months before an indictment was finally returned, making the
petition both timely and extremely useful. See Griffis v. State, 441 S.W.3d 599, 605-06 (Tex. App.—San Antonio
2014, no pet.) (referencing counsel’s right to not perform a useless or futile act, such as moving to dismiss a charge
under article 32.01 for lack of speedy trial after an indictment has already been returned).

                                                                                                                     32
      Mr. Zamora wholly failed to act, amounting to a serious deficiency in his

performance, and further, undoubtedly affected the outcome of the case as Appellant

would have been released from jail pursuant to article 17.151 and the charges would

have been dismissed and bail discharged under article 32.01 had Mr. Zamora

actually acted with a sound trial strategy.


2) Mr. Collins’ assistance was clearly ineffective under the Strickland test as
he deprived Appellant of a fair trial by barring his client from asserting the
most basic defenses: a) counsel barred himself from disputing the evidence;
b) counsel barred his client from requesting the lesser included offense be
considered.

      A. Discussion


      Authorities
      A lesser included offense charge, much like an instruction, often allows the

jury to find the defendant guilty of a lesser offense, typically with a lower

punishment range. Trial strategies do exist which involve taking an “all or nothing”

approach in order to try and achieve outright acquittal, by not giving the jury the

option of a lesser included offense. Tolbert, 306 S.W.3d at 781; Okonkwo v. State,

398 S.W.3d 689, 697 (Tex. Crim. App. 2013).

      In order to bring a claim for ineffective assistance of counsel for a lesser

included instruction not being given to the jury, evidence in the record must exist

regarding the strategy employed by counsel, rather than mere speculation as to

whether a valid strategy existed. Turner v. State, 2014 Tex. App. LEXIS 8706 (Tex.

                                                                                  33
App.—Austin 2014, pet. ref’d). A strong presumption of reasonable assistance is

given, therefore, direct evidence in the form of a record must be provided into to

rebut the same. See Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).


      Analysis
      Appellant’s counsel, Mr. Collins, moved for an oral directed verdict in which

he requested the lesser charge of theft of property valued at less than $1,500 be

stricken for lack of evidentiary support. During direct examination of a CVS

employee a ledger was entered into evidence, over defense counsel’s objection,

which indicated 36 cartons of cigarettes were no longer in CVS’s inventory, valued

at over $1,900, before tax. In Mr. Collins’ oral motion for directed verdict on Count

2, he argued that the lesser theft charge is not substantiated by the evidence as the

ledger provides evidence of the value of the property stolen being greater than

$1,500. With that, trial counsel cut of his nose to spite his face. He barred any

defense argument for a lesser included, and barred any ability of defense to argue

against the alleged value of the stolen property.

      At the break, the State explained their reasoning for charging both offenses,

stating that the jury could have found the ledger an unreliable source for the quantity

of cartons stolen and therefore the value of the stolen property, and therefore, the

State wanted to ensure that both offenses were available to the jury in their decision

of guilt/innocence.


                                                                                    34
      The Court denied the defense’s oral motion for directed verdict but struck

Count 2 as it was no longer supported by the evidence. The State then moved for

defense counsel to be enjoined from making arguments regarding the lesser value of

the stolen. Without hesitation or objection, Mr. Collins agreed to forego any

arguments regarding the value being less than $1,500 and State’s injunction was

granted.

      Such an agreement deprived Appellant of any opportunity to have an

instruction on a lesser included offense, let alone have the jury consider the lesser

included offense during guilt/innocence. No viable strategic reason for this can be

gleamed from the record.

      As in any theft case, the issue of value is key and Mr. Collins completely

dispossessed Appellant of any opportunity to argue against the State’s endeavors or

for a lesser included offense. As such, if not for Mr. Collins’ deficient actions, a

reasonable probability exists that the outcome of this proceeding would have been

different.


3) David Collins provided per se ineffective assistance of counsel as he barred
his client from requesting a lesser included offense in the charge to the jury

      A. Discussion


      Authorities
      Counsel is per se ineffective under the Strickland test when a request for an

instruction on the lesser included offense is not made, if the trial judge would have
                                                                                  35
erred in refusing the instruction had counsel requested it. See Wood v. State, 4

S.W.3d 85, 87 (Tex. App.—Fort Worth, 1999, pet. ref’d); Tarango v. State, 2007

Tex. App. LEXIS 2247 (Tex. App.—El Paso 2007, pet. ref’d). Often, direct appeal

is an inadequate vehicle for raising a claim for ineffective assistance of counsel for

lack of request of a lesser included instruction as the record is generally

undeveloped. Menefield, 363 S.W.3d at 592-93.


      Analysis
      In the present case, no lesser included instruction was provided and no request

for one was made by counsel because defense counsel hamstrung his client.

Originally, the State had charged Appellant with both the greater and lesser crime,

offering the explanation that the jury may not find the evidence sufficient to support

the greater offense and so the State consciously decided to charge both. However,

after Mr. Collins’ oral motion for directed verdict, the lesser charge was struck and

Mr. Collins unnecessarily agreed to not argue the amount to be less than the greater

charge, theft of property with a value between $1,500 and $20,000 (with no

identifiable trial strategy behind such decision).

       Although there are times when it may be a reasonable trial strategy to not

request a lesser included, such circumstances are not present here. Not asking for a

lesser included is to put all of one’s eggs in a single basket and hope that the jury

find the evidence insufficient to support the greater crime, thereby, resulting in an


                                                                                        36
acquittal. But, to not request a lesser included followed by counsel not make any

arguments related to the evidence being insufficient to support the greater, or even

worse, to be in complete agreement that the evidence is sufficient to support the

greater, is not a part of any sound trial strategy. Unlike most reporters’ records this

case has a very developed record as to why defense counsel did not request a lesser

included, he did not feel the evidence substantiated it. Such actions abdicate one’s

duty as counsel and result in per se ineffective assistance of counsel.


4) Trial counsel’s lack of inquisition into the quantity, value, and other
alternatives caused his performance to be grossly deficient, prejudicing
appellant’s right to a fair and reliable trial

      A. Discussion


      Authorities
      In order to provide effective assistance, “counsel must have a firm command

of the facts of the case as well as the law” before him. Flores v. State, 576 S.W.2d

632, 634 (Tex. Crim. App. 1978). Although, a legitimate trial strategy may involve

completely waiving the right to cross examine a witness, if cross examination would

only serve to reinforce the prosecution’s theory, once counsel has begun to cross

examine a witness, the veracity of the cross examination is subject to the Strickland

two prong test. Miniel v. State, 831 S.W.2d 310, 324 (Tex. Crim. App.), cert. denied,

506 U.S. 885, 121 L. Ed. 2d 178, 113 S. Ct. 245 (1992); Strickland, 466 U.S. at 694.




                                                                                     37
      Analysis
      Defense counsel did not waive cross examination but instead, neglected to

question the CVS employee in order to controvert her testimony and provide a

reasonable doubt in the minds of the jurors. The witness testified that the ledger was

made the very night of the theft, however, the date and time stamp on the ledger

directly controvert this testimony. However, counsel did not question the witness

about the discrepancy nor what other plausible explanations there are as to what

happened to the missing items between the early morning of November 8, 2011,

when the items were checked into inventory, and mid morning the next day,

November 9, 2011. Defense counsel’s cross examination completely lacked any

investigation into the clerk’s knowledge of how many cartons where in the box

taken, how one may be able to determine the number of cartons present in the box

besides the ledger, the reliability of the ledger, or other viable possibilities for how

those cartons were unaccounted for.

      The CVS attendant was an essential witness in the case and without her

testimony controverted, Appellant’s defense had little chance of success. Mr. Collins

could not have acted upon a sound trial strategy in failing to elicit testimony

regarding the blatant discrepancies, which would have led to a reasonable doubt

being raised as to the plausibility of the State’s claims. Such deficiencies likely led,

or a reasonable probability exists to believe, the result of the proceeding would have



                                                                                     38
been different, as the jury would have had a reasonable doubt as to the value of the

property stolen.


5) Counsel at trial abrogated his duty to investigate the physicality of the
evidence in order to obtain knowledge about the plausibility of the
accusations against his client causing appellant to be stripped of any
possibility of a Fair trial

      A. Discussion


      Authorities
      As stated previously, in order for counsel to provide effective assistance, a

firm command of the facts of the case as well as the law is required. As such, counsel

has a duty to make an independent investigation of the facts of his client’s case.

When challenging counsel’s investigation in a claim for ineffective assistance of

counsel, Appellant must show that he had a viable defense that his attorney failed to

discover, looking from the viewpoint of the time of trial, rather than hindsight. Ex

parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Butler v. State, 716

S.W.2d 48, 55 (Tex. Crim. App. 1986); King v. State, 649 S.W.2d 42, 43 (Tex. Crim.

App. 1983).


      Analysis
      Mr. Collins did not perform his duty to investigate. Had Mr. Collins

adequately investigated this case, he would have discovered that the ledger

describing 36 missing cartons of cigarettes could not have all possibly been taken by

Appellant or his co-defendant. Rather, Mr. Collins would have discovered that 36

                                                                                   39
cartons would not have even fit in the box stolen on November 8, 2011.12 Mr.

Collins failed to perform his duty to investigate the physicality of the evidence,

otherwise his trial strategy would not have been to strike the lesser charge and agree,

without hesitation, to not argue the quantity or dollar value of the property stolen.

Such a failure on the part of counsel leads to a reasonable probability that the result

of the proceeding would have been different.



GROUND OF ERROR THREE

THE EVIDENCE ADDUCED AT TRIAL IS LEGALLY INSUFFICIENT TO
SUPPORT APPELLANT’S CONVICTION AND PUNISHMENT AS NO DIRECT
EVIDENCE WAS PROVIDED TO SUBSTANTIATE THE STATE’S
ALLEGATIONS AS TO THE QUANTITY OF CARTONS WITHIN THE STOLEN
BOX OR LINK THE NUMBER OF CARTONS NO LONGER IN INVENTORY TO
APPELLANT

         A. Standard of Review
         To assess the legal sufficiency of the evidence, whether direct or

circumstantial, the reviewing court must “consider all the evidence in the light most

favorable to the verdict and decide whether, based on the evidence and reasonable

inferences therefrom, a rational juror could have found the essential elements of the


12
   Appellant’s co-defendant, Mr. Frank Parramore, was acquitted on both charges, the same Appellant was indicted
for, as the jury could not count 36 cartons in the box, but only between 28-33. At a hearing on Mr. Parramore’s
motion to sever, the State argued the two charges were the same unit but alternative means and need not be stricken,
however, at trial, proceeded with both charges. The Trial Court noticed the discrepancy and gave a directed verdict
of not guilty on Count 2, theft of property valued less than $1,500, because otherwise error would ensue. With only
Count 1, theft of property valued between $1,500 and $20,000, moving forward, Mr. Parramore’s counsel argued
that if the jury couldn’t court 36 boxes, they could not convict Mr. Parramore, leading to an acquittal. State v. Frank
Parramore, CR2013-245.

                                                                                                                    40
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19, 99

S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Because jurors are permitted to draw multiple

reasonable inferences, conflicting inferences may be supported by the record and the

reviewing court is to presume that the trier of fact resolved the conflict in favor of

the State and defers to that determination. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007).


      B. Discussion
      Authorities
      The value of the property stolen is a required element to prove theft. Tex.

Penal Code §31.03. Circumstantial evidence can be used in order to prove an element

of the crime beyond a reasonable doubt and may alone be sufficient to establish guilt.

Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). However, a link must

also be made between the circumstantial evidence and the defendant. In a theft case,

the property claiming to be no longer in the possession of the rightful holder must

be linked to the accused. Although the State may provide “a collection potential

linking factors, each of which might raise suspicion but is insufficient on its own to

provide the required affirmative link between appellant” and the missing property.

Roberson v. State, 80 S.W.3d 730, 742 (Tex. App.—Houston [1st Dist.] 2002, no

pet.). Without proof of the affirmative link, even viewing the evidence in the list

most favorable to the verdict, the “logical force necessary to allow a rational juror


                                                                                   41
to find, beyond a reasonable doubt” that Appellant, or his codefendant, stole the

property alleged will not exist. Id.


      Analysis
      State’s Exhibit 5, Part 3, shows a man, presumed to be Appellant’s co-

defendant, behind the counter at the CVS store taking a white box, later alleged to

be a box of cartons of cigarettes according to the ledger [RR, Vol. 5, S5, Part 3].

However, none of the video or picture evidence admitted in trial indicated the

number of cartons actually taken [RR, Vol. 5, pp. 145, D1]. The only evidence

submitted as to the value of the property taken is a ledger, which counsel for the

State even admitted the jury may not believe the quantity or value [RR, Vol. 5, pp.

17, S6; RR, Vol. 3, pp. 125]. No testimony was elicited from the CVS employee as

to if she had any personal knowledge as to the exact number of cartons contained in

the box taken, as the only numbers she provided were read from the ledger that had

already been admitted into evidence.

      Upon review of the video and photographic evidence admitted, there is not a

feasible way in which a reasonable juror could have found 36 cartons were contained

in the box. No evidence was produced to support the charge of 36 cartons being

taken, but only that 36 cartons were no longer in CVS’s inventory between the time

of early morning on November 8, 2011 and mid morning on November 9, 2011.

Even weighing the evidence in the light most favorable to the verdict, there is no


                                                                                42
evidence to support a reasonable juror’s finding of beyond a reasonable doubt as to

the essential element of the crime, the value of the property taken.

      Additionally, the State failed to provide any logical link between Appellant

and the items alleged to be missing as stated in Exhibit 6. Exhibit 6 is a ledger created

by a CVS employee to show what items were in inventory the morning of November

8, 2011 but never stocked on the shelf by mid morning on November 9, 2011. There

was no evidence produced, direct or circumstantial, providing a connection between

those missing cartons and Appellant. Although plausible links were suggested by the

State, none were sufficiently logical to rise to the level of beyond a reasonable doubt.

      A plethora of reasonable doubt exists as to how many cartons were contained

in the box as evidence was produced, through testimony, that the top of the box had

already been cut off and been placed behind the counter to be unloaded [RR, Vol. 3,

pp. 43]. No direct evidence was produced of the number of cartons stolen in the form

of the box itself later being recovered, personal knowledge of the number contained

therein, or a coding system of CVS which indicates exactly what the contents of each

box are. As such, the evidence is legally insufficient to support the criminal

conviction and the case should be reverse and remanded.


                                    CONCLUSION

      For the reasons stated herein, Appellant respectfully requests this court grant

Appellant the relief requested by finding that the trial court erred in its failure to take

                                                                                        43
action on Appellant’s 180 day writ, counsel for Appellant were both wholly deficient

causing prejudice to Appellant’s defense and ultimately depriving him a fair and

reliable trial, or find the evidence legally insufficient to support the verdict and

thereby reverse and remand Appellant’s case to the trial court.


                                     PRAYER

      WHEREFORE, premises considered, Appellant respectfully requests that the

judgment of conviction of the Appellant be reversed and remanded.

                                Respectfully submitted,

                                Hazel Brown Wright Reneau, PLLC
                                391 Landa Street
                                New Braunfels, TX 78130
                                Tel: 830-629-6955
                                Fax: 830-629-2559


                                By___/s/Marilee Hazel Brown /s/______
                                  Marilee H. Brown
                                  marilee@hazelbrownlaw.com
                                  SBN# 24046044




                                                                                 44
                         CERTIFICATE OF SERVICE

      A true and correct copy of the above and foregoing Appellant’s Brief has

this ____9th___ day of _____February____, 2015, been delivered to Jennifer

Tharp, attorney for the Comal County District Attorney, Appellee, by hand at 150

N. Seguin Avenue, New Braunfels, TX 78130.


                                 __/s/ Marilee Hazel Brown /s/________
                                 Marilee H. Brown




                   Certificate of Compliance with Rule 9.4(i)(3)

I hereby certify this brief is in compliance with TRAP 9.4(i)(2), being total,
including tables and identification, under 15,000 words – actual total being
(11,049).

                                 ____/s/ Marilee H. Brown /s/______________
                                       Marilee H. Brown




                                                                                 45
