                                                                                   ACCEPTED
                                                                               03-15-00398-CR
                                                                                       7932360
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                         11/20/2015 3:29:14 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                          No. 03-15-00398-CR

                    IN THE COURT OF APPEALS               FILED IN
                                                   3rd COURT OF APPEALS
                         THIRD DISTRICT                 AUSTIN, TEXAS
                        AT AUSTIN, TEXAS           11/20/2015 3:29:14 PM
                                                       JEFFREY D. KYLE
                                                            Clerk
__________________________________________________________________


                   GARY LEE GRIFFIN, Appellant

                                  v.

                       THE STATE OF TEXAS




 ON APPEAL FROM THE 22ND DISTRICT COURT OF HAYS COUNTY
          TRIAL COURT CAUSE NUMBER CR-14-0432

__________________________________________________________________


                      BRIEF FOR APPELLANT

__________________________________________________________________

                                           Richard E. Wetzel
                                           State Bar No. 21236300
                                           1411 West Ave., Suite 100
                                           Austin, Texas 78701
                                           (512) 469-7943 – Telephone
                                           (512) 474-5594 - Fax
                                           wetzel_law@1411west.com

                                           Attorney for Appellant
                                           Gary Lee Griffin

                  ORAL ARGUMENT REQUESTED
                        Identity of Parties and Counsel


Appellant:                                  Gary Lee Griffin

Trial Counsel for Appellant:                Daniel Garcia
                                            Attorney at Law
                                            1800 Guadalupe St.
                                            Austin, TX
                                            78701

Appellate Counsel for Appellant:            Richard Wetzel
                                            Attorney at Law
                                            1411 West Ave., Ste. 100
                                            Austin, TX
                                            78701

Appellee:                                   State of Texas

Trial and Appellate Counsel for Appellee:   Jennifer Stalbaum
                                            Assistant District Attorney
                                            712 S. Stagecoach Tr.
                                            Ste. 2057
                                            San Marcos, TX
                                            78666

Trial Judge:                                Hon. Bruce R. Boyer
                                            22nd District Court
                                            Hays County, Texas




                                       ii
                                 Table of Contents
                                                                                                     Page

List of Parties and Counsel                     . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii

Table of Contents                               . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities                            . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .iv

Statement of the Case                           . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Issues Presented                                . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Statement of Facts                              . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Summary of the Argument                         . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Point of Error One                              . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

The evidence is insufficient to support the conviction because a volunteer fireman
is not a “public servant” but rather “emergency services personnel” as those terms
are statutorily defined.

Point of Error Two                              . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Griffin was denied the effective assistance of counsel at trial.

Prayer                                          . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41

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

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




                                          iii
                                   Index of Authorities
                                                                                                 Page
Constitutions

TEX. CONST. art. III, Sec. 48-e                                   . . . . . . . . . . . . . . . . . . .14

U.S. CONST. amend. VI                                             . . . . . . . . . . . . . . . . . . .23

U.S. CONST. amend. XIV                                            . . . . . . . . . . . . . . . . . . .23

Cases

Bell v. Cone, 535 U.S. 685
(2000)                                                            . . . . . . . . . . . . . . . . . . .25

Boyington v. State, 738 S.W.2d 704
(Tex. App.—Houston [1st Dist.] 1985, no pet.)                     . . . . . . . . . . . . . . . . . . .30

Cada v. State, 334 S.W.3d 766
(Tex. Crim. App. 2011)                                            . . . . . . . . . . . . . . . . . . .16

Cameron v. Terrell & Garrett, 618 S.W.2d 535
(Tex. 1981)                                                       . . . . . . . . . . . . . . . . . . .19

Cannon v. State, 668 S.W.2d 401
(Tex. Crim. App. 1984)                                            . . . . . . . . . . . . . . . . . . .23

Collier v. Turpin, 155 F.3d 1277
(11th Cir. 1998)                                                  . . . . . . . . . . . . . . . . . . .25

Cooper v. State, 769 S.W.2d 301
(Tex. App. – Houston [1st Dist.]. 1989, pet. ref’d)               . . . . . . . . . . . . . . . . . . .24

Craig v. State, 825 S.W.2d 128
(Tex. Crim. App. 1992)                                            . . . . . . . . . . . . . . . . . . .23

Delta Elec. Const. Co. v. City of San Antonio, 437 S.W.2d 602
(Tex. Civ. App.-- San Antonio 1969, writ ref'd n.r.e.)   . . . . . . . . . . . . . . . . . . .18


                                              iv
Drinkert, Ex parte, 821 S.W.2d 953
(Tex. Crim. App. 1991)                                            . . . . . . . . . . . . . . . . . . .38

E. Houston Estate Apartments, L.L.C. v. City of Houston, 294 S.W.3d 723
(Tex. App.-- Houston [1st Dist.] 2009, no pet.)          . . . . . . . . . . . . . . . . . . .21

Felton, Ex parte, 815 S.W.2d 733
(Tex. Crim. App. 1991)                                            . . . . . . . . . . . . . . . . . . .24

Garrett v. State, 159 S.W.3d 717
(Tex. App. – Fort Worth 2005) affirmed
220 S.W.3d 926 (Tex. Crim. App. 2007)                             . . . . . . . . . . . . . . . . . . .38

Gifford v. State, 980 S.W.2d 791
(Tex. App. – Houston [14th Dist.] 1998, pet. ref’d)               . . . . . . . . . . . . . . . . . . .27

Gokey v. State, 314 S.W.3d 63
(Tex. App.—San Antonio 2010, pet. ref'd, untimely filed). . . . . . . . . . . . . . . . . . .36

Hardwick v. Crosby, 320 F.3d 1127
(11th Cir. 2003)                                                  . . . . . . . . . . . . . . . . . . .26

Hardy v. State, 281 S.W.3d 414
(Tex. Crim. App. 2009)                                            . . . . . . . . . . . . . . . . . . .18

Haynes v. Cain, 272 F.3d 757
(5th Cir. 2001)                                                   . . . . . . . . . . . . . . . . . . .39

Henry v. United States, 361 U.S. 98
(1959)                                                            . . . . . . . . . . . . . . . . . . .29

Jackson v. Virginia, 443 U.S. 307
(1979)                                                            . . . . . . . . . . . . . . . . . . .16

Jimenez v. State, 419 S.W.3d 706
(Tex. App.—Houston [1st Dist.] 2013, pet. ref’d)                  . . . . . . . . . . . . . . . . . . .37

Kyles v. Whitley, 514 U.S. 419
(1995)                                                            . . . . . . . . . . . . . . . . . . .39

                                               v
Lilly, Ex parte, 656 S.W.2d 490
(Tex. Crim. App. 1983)                                           . . . . . . . . . . . . . . . . . . .26

Liverman v. State, ___ S.W.3d ___, 2015 WL 5579418,
(Tex. Crim. App. 2015)                              . . . . . . . . . . . . . . . . . . .17

Loyd v. Whitley, 977 F.2d 149
(5th Cir. 1992)                                                  . . . . . . . . . . . . . . . . . . .25

Martin v. Rose, 744 F.2d 1245
(6th Cir. 1984)                                                  . . . . . . . . . . . . . . . . . . .26

Miniel v. State, 831 S.W.2d 310
(Tex. Crim. App. 1992)                                           . . . . . . . . . . . . . . . . . . .23

Mitchell v. State, 762 S.W.2d 916
(Tex. App.—San Antonio 1988, pet. ref'd)                         . . . . . . . . . . . . . . . . . . .30

Moore v. Johnson, 194 F.3d 586
(5th Cir. 1999)                                                  . . . . . . . . . . . . . . . . . . .26

Nero v. Blackburn, 597 F.2d 991
(5th Cir. 1979)                                                  . . . . . . . . . . . . . . . . . . .24

Norrell v. Gardendale Volunteer Fire Dep't, 115 S.W.3d 114
(Tex. App.--San Antonio 2003 no pet.)                  . . . . . . . . . . . . . . . . . . .19

Patrasso v. Nelson, 121 F.3d 297
(7th Cir. 1997)                                                  . . . . . . . . . . . . . . . . . . .39

Perkins v. State, 812 S.W.2d 326
(Tex. Crim. App. 1991)                                           . . . . . . . . . . . . . . . . . . .30

Profitt v. Waldron, 831 F.2d 1245
(5th Cir. 1987)                                                  . . . . . . . . . . . . . . . . . . .26

Robertson v. State, 187 S.W.3d 475
(Tex. Crim. App. 2006)                                           . . . . . . . . . . . . . . . . . . .34


                                             vi
Schott Glas v. Adame, 178 S.W.3d 307
(Tex. App.--Houston [14th Dist.] 2005, pet. denied)              . . . . . . . . . . . . . . . . . . .20

Self v. State, 709 S.W.2d 662
(Tex. Crim. App. 1986)                                           . . . . . . . . . . . . . . . . . . .30

Smith v. Baldwin, 611 S.W.2d 611
(Tex. 1980)                                                      . . . . . . . . . . . . . . . . . . .19

State v. Vasilas, 187 S.W.3d 486
(Tex. Crim. App. 2006)                                           . . . . . . . . . . . . . . . . . . .17

Stone v. State, 17 S.W.3d 348
(Tex. App.-Corpus Christi 2000, pet. ref’d)                      . . . . . . . . . . . . . . . . . . .27

Strickland v. Washington, 466 U.S. 668
(1984)                                                           . . . . . . . . . . . . . . . passim

Stull v. State, 772 S.W.2d 449
(Tex. Crim. App. 1989)                                           . . . . . . . . . . . . . . . . . . .30

Summitt v. Blackburn, 795 F.2d 1237
(5th Cir. 1986)                                                  . . . . . . . . . . . . . . . . . . .36

Tottenham v. State, 285 S.W.3d 19
(Tex. App. – Houston [1st Dist.] 2009, pet. ref’d)               . . . . . . . . . . . . . . . . . . .37

United States v. Dominguez Benitez, 542 U.S. 74
(2004)                                                           . . . . . . . . . . . . . . . . . . .39

Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538
(Tex. App.--Houston [14th Dist.] 2003, no pet)          . . . . . . . . . . . . . . . . . . .20

Washington v. Hofbauer, 228 F.3d 689
(6th Cir. 2000)                                                  . . . . . . . . . . . . . . . . . . .26

Welborn, Ex parte, 785 S.W.2d 391
(Tex. Crim. App. 1990)                                           . . . . . . . . . . . . . . . . . . .27


                                              vii
Westley v. Johnson, 83 F.3d 714
(5th Cir. 1996)                               . . . . . . . . . . . . . . . . . . .25

Wiggins v. Smith, 539 U.S. 510
(2003)                                        . . . . . . . . . . . . . . . . . . .24

Wilkerson v. State, 726 S.W.2d 542
(Tex. Crim. App. 1986)                        . . . . . . . . . . . . . . . . . . .23

Yeager v. City of McGregor, 980 F.2d 337
(5th Cir. 1993)                               . . . . . . . . . . . . . . . . . . .20

Zepeda, Ex parte, 819 S.W.2d 874
(Tex. Crim. App. 1991)                        . . . . . . . . . . . . . . . . . . .23

Statutes

TEX. C.S. H.B. 495, 80th Leg., R.S. (2007)    . . . . . . . . . . . . . . . . . . .15

TEX. CIV. PRAC. & REM. CODE § 102.001         . . . . . . . . . . . . . . . . . . .19

TEX. CRIM. PROC. CODE arts. 14.01             . . . . . . . . . . . . . . . . . . .30

TEX. CRIM. PROC. CODE arts. 14.02             . . . . . . . . . . . . . . . . . . .30

TEX. CRIM. PROC. CODE arts. 14.03             . . . . . . . . . . . . . . . . . . .30

TEX. CRIM. PROC. CODE arts. 14.04             . . . . . . . . . . . . . . . . . . .30

TEX. GOV’T CODE § 311.011(a)                  . . . . . . . . . . . . . . . . . . .17

TEX. GOV’T CODE § 311.023                     . . . . . . . . . . . . . . . . . . .18

TEX. HEALTH & SAFETY CODE § 773.003           . . . . . . . . . . . . . . . . . . .11

TEX. HEALTH & SAFETY CODE § 775.031(c)        . . . . . . . . . . . . . . . . . . .14

TEX. PEN. CODE § 1.05(a)                      . . . . . . . . . . . . . . . . . . .18

TEX. PEN. CODE § 1.07(41)                     . . . . . . . . . . . . . . . . . . .14
                                       viii
TEX. PEN. CODE § 1.07(a)(41)(A)                           . . . . . . . . . . . . . . . . . . .18

TEX. PEN. CODE § 1.07(a)(41)(F)                           . . . . . . . . . . . . . . . . . . .18

TEX. PEN. CODE § 1.07(a)(24)                              . . . . . . . . . . . . . . . . . . .18

TEX. PEN. CODE § 2.05(a)(2)(A)-(D)                        . . . . . . . . . . . . . . . . . . .13

TEX. PEN. CODE § 22.01(a)(1)                              . . . . . . . . . . . . . . . passim

TEX. PEN. CODE § 22.01(b)(1)                              . . . . . . . . . . . . . . . passim

TEX. PEN. CODE § 22.01(b)(5)                              . . . . . . . . . . . . . . . passim

TEX. PEN. CODE § 22.01(d)                                 . . . . . . . . . . . . . . . . . . .36

TEX. PEN. CODE § 22.01(e)(1)                              . . . . . . . . . . . . . . . passim

Rules

TEX. R. APP. P. 9.4                                       . . . . . . . . . . . . . . . . . . .42

TEX. R. EVID. 103(a)(2)                                   . . . . . . . . . . . . . . . . . . .33

TEX. R. EVID. 803(2)                                      . . . . . . . . . . . . . . . . . . .33

Other

HOUSE COMMITTEE ON CRIMINAL JURISPRUDENCE, BILL ANALYSIS, TEX.
C.S.H.B. 495, 80th Leg., R.S. (2007)         . . . . . . . . . . . . . . . . . . .15




                                         ix
                               Statement of the Case


      This is an appeal from a criminal proceeding. Gary Lee Griffin was indicted

by a Hays County grand jury for the third degree felony offense of assault on a

public servant. See TEX. PEN. CODE § 22.01(a)(1) and (b)(1) (CR 5). The

indictment alleges in relevant part that on April 9, 2014, Griffin intentionally,

knowingly, or recklessly caused bodily injury to Philip Arbogast by striking

Arbogast on or about the neck, that Griffin knew Arbogast was a public servant, a

fireman, and that Griffin knew Arbogast was lawfully discharging an official duty

by collecting water to use to extinguish a fire.


      A jury was selected and sworn (2 RR 212-213). Griffin entered a plea of not

guilty to the charged offense (3 RR 17). Evidence was presented by both the State

and Griffin. After both sides rested and closed, a charge was presented to the jury

(4 RR 88). The jury found Griffin guilty as charged on May 20, 2015 (4 RR 132).

The jury was discharged and the trial court ordered a presentence investigation

report (4 RR 133).


      The matter was recalled for a punishment hearing before the court on June

25, 2015 (5 RR). Evidence was presented by Griffin and argument made by both

counsel. At the conclusion of the proceeding, the trial court assessed punishment

at two years, suspended the imposition of the sentence and placed Griffin on

                                           1
community supervision for four years, and imposed a $2500 fine (5 RR 43).

Terms and conditions of community supervision included 200 hours of community

service, anger management counseling, apology letters to the Wimberley Volunteer

Fire Department as well as Arbogast, and agreed upon restitution (CR 55, 5 RR

43).


       A motion for new trial was timely filed (CR 70). A hearing was held on the

motion for new trial (1 RR).1 At the conclusion of the hearing, the trial court

denied the motion for new trial (CR 110, 1 RR 40).


       The trial court certified Griffin’s right to appeal (CR 57). Notice of appeal

was timely filed (CR 64).




1
  The record on appeal contains two volumes labeled volume one of the reporter’s
record. The first volume one is the master index of the reporter’s record. The
second volume one is the record from the hearing on the motion for new trial.
When Griffin refers to “1 RR,” he is referring to the reporter’s record of the
hearing held on the motion for new trial on September 3, 2015.
                                          2
                             Issues Present on Appeal


Point of Error One


The evidence is insufficient to support the conviction because a volunteer fireman

is not a “public servant” but rather “emergency services personnel” as those terms

are statutorily defined.


Point of Error Two


Griffin was denied the effective assistance of counsel at trial.


                                 Statement of Facts


      Phil Arbogast, the complainant, is a volunteer with the Wimberley Volunteer

Fire Department (3 RR 43). On the afternoon of April 9, 2014, he responded to a

structure fire (3 RR 35). Arbogast was driving a tanker truck used to take water to

the fire (3 RR 35).


      When the truck ran out of water, Arbogast went to Lone Man Creek to fill

his truck (3 RR 39). He parked on a low water bridge and began to draw water

from the creek (3 RR 40). The bridge was located on a private road connected to a

public highway (3 RR 60).




                                           3
      While Arbogast was drawing water from the creek, Griffin approached from

a nearby home and said “this is fucking private land and fucking private water” (3

RR 40). Arbogast responded that the water belonged to the State of Texas and he

needed the water it for a nearby structure fire (3 RR 41).


      Arbogast testified he was struck on the throat by Griffin, lost his balance,

and fell into Lone Man Creek (3 RR 42). The water was about 12 feet deep and

Arbogast stood on a root ball after telling Griffin he could not swim (3 RR 42).

Upon Arbogast asking Griffin for help to get out of the creek, Griffin smirked and

walked away (3 RR 43). Arbogast eventually crawled out of the creek and used a

radio and cellphone in his truck to report the incident (3 RR 44). When he fell into

the creek, Arbogast lost a radio, pager, and lapel mic (3 RR 89). He initially

believed he had lost a radio valued in excess of $2500.00 (3 RR 182).


      Arbogast denied ever yelling at Griffin or being aggressive toward him on

the bridge (3 RR 44). At the time of the incident, Arbogast was wearing a t-shirt

with the Wimberley Fire and Rescue emblem on both the front and back of the

shirt and blue jeans (3 RR 51). No particular uniform is required of volunteers and

they simply show up for duty in “whatever” (3 RR 106). Arbogast never identified

himself as a fireman to Griffin (3 RR 106).




                                          4
      Arbogast said it hurt when Griffin struck him (3 RR 56). He was not in

extreme pain, but was in discomfort on his neck and throat (3 RR 112). In his

statement to the authorities, Arbogast never mentioned he was injured or suffered

any pain as a result of Griffin allegedly striking him (3 RR 133).


      A deputy sheriff responded to Arbogast’s report of the incident (3 RR 109).

Arbogast told him what had happened and identified Griffin as his assailant when

deputies went to Griffin’s home (3 RR 114).


      Finally, Arbogast testified that the Wimberley Volunteer Fire Department is

funded by an emergency services district (3 RR 181). He is both a member of and

an agent of the Wimberley Volunteer Fire Department (3 RR 181).


      Hays County Deputy Sheriff David Gamble responded to Arbogast’s report

of falling into the creek (3 RR 141). Upon arriving, he saw a tanker truck on a low

water bridge and Arbogast standing nearby in wet clothing (3 RR 143). After

speaking with Arbogast, Gamble went to Griffin’s home and saw Griffin on the

sidewalk (3 RR 147). When asked what happened at the creek, Griffin responded

to Gamble “fuck you and get off my property” (3 RR 148).


      Gamble believed he had probable cause to arrest Griffin based on Arbogast’s

statements to him and Arbogast’s wet clothing (3 RR 159). Griffin was then

restrained and placed in a patrol unit for the offense of assault on Arbogast, a
                                          5
public servant (3 RR 148). Griffin was agitated and noncompliant when being led

to the patrol vehicle (3 RR 149, 151). When asked by Gamble if he had any

weapons, Griffin responded “I have my fucking dick in my pants, would you like

for me to shove it up your ass?” (3 RR 150). Gamble threatened to use a Taser on

Griffin if he did not enter the patrol vehicle (3 RR 151, 179). A dash cam video of

Griffin’s arrest and statements at the scene of the arrest was admitted into evidence

without objection (3 RR 155, 6 RR SX 13).2


      Griffin’s fiancé was at the home she shares with Griffin at the time of the

incident (3 RR 153). Gamble asked her if she had seen what happened at the

bridge and she said she did not see anything because her view of the bridge was

blocked from the home (3 RR 153, 172). Gamble noticed Griffin’s knee was

scraped in a manner consistent with Griffin’s story that he scraped his knee when

he bent down and tried to pull Arbogast from the creek (3 RR 177).




2
  A 23 minute videotape from the scene of the arrest was admitted into evidence
without objection by defense counsel (3 RR 155, 6 RR SX 13). The videotape
contains Gamble’s initial encounter with Griffin upon his arrest, arguing by Griffin
with the officer, arguing by Griffin with Arbogast, Griffin’s statement regarding
his penis, Griffin’s noncompliance with law enforcement directives, Gamble’s
threats to use the Taser on Griffin if he did not get in and stay in the patrol vehicle,
Arbogast’s rendition of the offense to law enforcement, cursing by Griffin, the
assertion by Griffin officers would beat and Taser him if they let him out of the
car, and disparaging comments by Griffin regarding Arbogast.


                                           6
        Erica Carpenter is the custodian of Hays County Emergency 911 call system

(3 RR 184). She identified a recording of some of the 911 calls placed in this case

by both Griffin and Arbogast (3 RR 190). The recordings were admitted into

evidence without objection (3 RR 190, 6 RR SX 14). Some of the calls in relation

to the incident were lost due to a lightning strike which damaged a storage server

used by the 911 call center (3 RR 192).


        Hays County Deputy Sheriff Anthony Schafer responded to the scene of

Griffin’s arrest outside Griffin’s home (3 RR 201). Griffin was intoxicated,

noncompliant, and belligerent (3 RR 202). Schafer identified a recording made

inside his patrol vehicle as Griffin was transported to jail (3 RR 204, 6 RR SX 15).

The recording was admitted without objection (3 RR 204).3 Arbogast never told

Schafer that he was in pain or suffered pain (3 RR 218). The State rested (3 RR

223).


        Tonya Adams is Griffin’s fiancé (4 RR 7). She saw Griffin go toward the

creek after the firetruck entered their neighborhood and park on the bridge (4 RR

3
  A 32 minute videotape from inside Deputy Schafer’s squad car was admitted into
evidence without objection by defense counsel (3 RR 204, 6 RR SX 15). The tape
depicts Griffin’s transport to jail from his home. The tape is replete with cursing
by Griffin, challenges to the transporting officer regarding his arrest, assertions of
contaminated blood in the squad car, disparaging comments regarding Arbogast,
questioning the judgment of the arresting officers, and disrespectful comments
toward law enforcement.


                                          7
9). She saw Arbogast fall into the creek (4 RR 9). Griffin did not push him into

the creek and was not near Arbogast when he fell into the creek (5 RR 10). She

did observe Griffin bend down and attempt to help Arbogast out of the water (5 RR

11).


       When he returned to the house, Adams noticed a scratch to Griffin’s knee

apparently sustained while attempting to pull Arbogast from the creek (4 RR 33).

A photograph of the knee injury was admitted into evidence (4 RR 34, 6 RR DX

2).


       After Arbogast fell in the water, Griffin returned home and called 911 to

report that a fireman was in the creek (5 RR 12). When the authorities arrived,

they did not want to talk to Adams (5 RR 12). Within two minutes of arriving, the

authorities handcuffed Griffin and placed him in a patrol car (4 RR 13).


       Griffin was home with his fiancé on the day of the incident when he saw a

firetruck enter the subdivision at a high rate of speed and then park on a low water

bridge (4 RR 38). He went to the bridge because he thought a wheel of the truck

had fallen off the bridge (4 RR 41). Upon initially encountering Arbogast, Griffin

did not know he was a fireman and asked him what he was doing (4 RR 42).

Arbogast was frantic, agitated, and rude and responded for Griffin not to interfere

(4 RR 42).

                                          8
      While they were on the bridge, Arbogast slipped and fell into the creek (4

RR 46). Griffin never hit Arbogast or pushed him into the water (4 RR 47).

Griffin was six feet away from Arbogast when he fell in the creek (4 RR 71).

Despite Arbogast screaming that he could not swim, Griffin knew he was not

likely to drown because the water was waist deep and Arbogast was standing on

the bottom of the creek (4 RR 48). On the second attempt, Griffin was able to pull

Arbogast from the water and back onto the bridge (4 RR 50, 76).


      After Arbogast was out of the water, Griffin returned home and called 911 to

report the incident of a fireman falling into the creek (4 RR 50). While speaking

with the 911 operator, Griffin saw Arbogast fall off the bridge and into the creek a

second time (4 RR 76-77).


      A short time after calling 911, a deputy arrived and handcuffed Griffin when

he walked out of his house (4 RR 52). The deputy told him he was being arrested

for assault (4 RR 53). The deputy was not interested in hearing Griffin’s side of

the story and Griffin was transported to jail after having been repeatedly threatened

with a Taser (4 RR 54-55).


      Griffin was cross-examined extensively concerning the statements he made

on the two recordings from the time of his arrest and transport to jail (4 RR 79-85,

6 RR SX 13 and SX 15). The defense rested and both sides closed (4 RR 86).

                                          9
      The charge was read to the jury (4 RR 88). Argument was presented (4 RR

101, 104, and 118). The jury found Griffin guilty as charged in the indictment (4

RR 132). The jury was dismissed and cause reset for punishment before the court

(4 RR 133).


      Punishment was tried to the court (5 RR). The State did not call any

witnesses. Lynn Broiller is a neighbor of Griffin’s and he has never seen Griffin

angry or violent (5 RR 7, 10). Rick Higgins has a business relationship with

Griffin and he has never seen Griffin violent or disrespectful toward law

enforcement (5 RR 13-19). James Lesko knows Griffin both professionally and

personally and has never observed him cursing or drinking to excess (5 RR 21-24).

Cassandra Walker is an employee of Griffin and she has never seen him

intoxicated or disrespectful toward law enforcement (5 RR 25-33).


      The court assessed punishment at two years, a fine of $2500.00, suspended

the imposition of sentence for four years and placed Griffin on community

supervision (CR 55, 5 RR 43). Terms and conditions of community supervision

included 200 hours of community service, anger management, apology letters to

the Wimberley Volunteer Fire Department and Arbogast as well agreed upon

restitution (CR 55, 5 RR 43).




                                        10
                             Summary of the Argument


      Two points of error are presented on direct appeal. The first point asserts the

State failed to prove the complainant was a public servant as alleged in the

indictment and found by the jury. The second point maintains Griffin was denied

the effective assistance of counsel at trial due to multiple acts of deficient

performance by trial counsel and ensuing prejudice.


      The best indication Arbogast was not shown to be a public servant as that

term is statutorily defined is language within the assault statute itself. Griffin was

charged with assaulting a public servant under § 22.01(a)(1) and (b)(1). However,

within the assault statute, the Legislature has recognized that volunteer firefighters,

such as Arbogast, are “emergency service personnel” rather than “public servants”

§ 22.01(e)(1).


      The assault statute provides in relevant part as follows: “Emergency services

personnel includes firefighters, emergency services medical personnel as defined

by Section 773.003, Health and Safety Code, and other individuals who, the course

and scope of employment or as a volunteer, provide services for the benefit of the

general public during emergency situations.” Id. Griffin was not charged with

assault on emergency services personnel under the statute proscribing such



                                           11
conduct. § 22.01(a)(1) and (b)(5) (proscribing assault of emergency services

personnel while the person is providing emergency services).


      No rational trier of the facts could have found beyond a reasonable doubt

that Arbogast was a “public servant” as alleged in the indictment. The State must

prove the statutory elements that it has chosen to allege and not some other

alternative statutory elements that it did not allege. This court should reform the

judgment to an acquittal.


      As shown during the hearing on the motion for new trial, trial counsel for

Griffin engaged in multiple acts of deficient performance which resulted in

prejudice. The acts and omissions now complained of include: failing to file a

motion to suppress evidence recovered following Griffin’s unlawful warrantless

arrest; failing to object at trial to the admission of evidence recovered following

Griffin’s unlawful warrantless arrest; failing to perfect an offer of proof when the

trial court excluded the complainant’s statements during the defendant’s testimony;

failing to argue the complaint’s statements to Griffin were admissible as excited

utterances; failing to object to a hearsay statement in which Deputy Gamble

testified Griffin’s fiancé told him she did not see any of the events which occurred

at the dam; failing to object to submission of a jury instruction relative to a

presumption that the defendant knew the person assaulted was a public servant if


                                          12
he was wearing a distinctive uniform or badge indicating the person’s employment

as a public servant; and failing to object to the absence of instructions required to

be included in the jury charge under TEX. PEN. CODE § 2.05(a)(2)(A)-(D) relative

to the presumption contained within the jury charge that the defendant knew the

person assaulted was a public servant if he was wearing a distinctive uniform or

badge indicating the person’s employment as a public servant.


       Griffin maintains that had counsel not engaged in the above mentioned acts

of deficient performance, there is a reasonable probability the jury would not have

convicted. Likewise, there is a reasonable probability the deficient acts of counsel

resulted in Griffin’s four year term of community supervision. Griffin suffered

prejudice as a result of counsel’s deficient performance during both phases of trial.

He seeks a new trial in which he may be represented by constitutionally effective

counsel.


                                 Point of Error One


The evidence is insufficient to support the conviction because a volunteer
fireman is not a “public servant” but rather “emergency services personnel”
as those terms are statutorily defined.


      The indictment alleges Arbogast was a public servant firefighter at the time

of the assault. The court’s charge required the jury to find Arbogast was a public

servant firefighter in order to convict (4 RR 98). The court provided the jury a
                                          13
definition of the term public servant which tracks the definition contained with

TEX. PEN. CODE § 1.07(a)(41) (4 RR 96). The jury found Griffin guilty as

charged (4 RR 132).


      Arbogast testified he has been a volunteer for the Wimberley Volunteer Fire

Department for 30 years (3 RR 32). He holds the title of Assistant Chief as

awarded by his peers based on the hours he has volunteered (3 RR 32). He works

maintenance for the Department (3 RR 32). On the day of the incident, Arbogast

was driving a tender or tanker truck to take water to the scene of a fire (3 RR 36).


      Arbogast was recalled by the State and testified the Wimberley Volunteer

Fire Department is funded by and has a contract with an emergency services

district (3 RR 181). The district is a taxing entity and a governmental agency (3

RR 181).4 Finally, he stated that he is an agent and member of the volunteer fire

department (3 RR 182).


      The best indication Arbogast was not shown to be a public servant as that

term is statutorily defined is language within the assault statute itself. Griffin was

charged with assaulting a public servant under § 22.01(a)(1) and (b)(1). However,




4
 See TEX. CONST. art. III, Sec. 48-e (authorizing creation of emergency service
districts for various purposes including rural fire prevention) and TEX. HEALTH &
SAFETY CODE § 775.031(c) (authorizing district to contract for fire services).
                                          14
within the assault statute, the Legislature has recognized that volunteer firefighters

are “emergency service personnel” rather than “public servants” § 22.01(e)(1).


      The statute provides in relevant part as follows: “Emergency services

personnel includes firefighters, emergency services medical personnel as defined

by Section 773.003, Health and Safety Code, and other individuals who, the course

and scope of employment or as a volunteer, provide services for the benefit of

the general public during emergency situations.” Id. (Emphasis added). Griffin

was not charged with assault on emergency services personnel under the statute

proscribing such conduct. § 22.01(a)(1) and (b)(5) (proscribing assault of

emergency services personnel while the person is providing emergency services).


      The “emergency services personnel” provisions of the assault statute became

effective on September 1, 2007, upon amendment of the assault statute. TEX. C.S.

H.B. 495, 80th Leg., R.S. (2007). The amendments were necessary because the

definition of “public servant” does not clearly include emergency services

personnel who, in the course of their employment or as volunteers, respond to

emergency situations. HOUSE COMMITTEE ON CRIMINAL JURISPRUDENCE, BILL

ANALYSIS, TEX. C.S.H.B. 495, 80th Leg., R.S. (2007). The Bill Analysis further

recognized the amendment adds a new category of individuals, “emergency




                                          15
services personnel,” against which assault causing bodily injury is a felony of the

third degree. Id.


      The State did not charge Griffin under the “emergency services personnel”

portion of the assault statute. § 22.01(b)(5). The statute makes it clear that

volunteer firefighters are not “public servants” under the portion of the assault

statute for which Griffin was charged and convicted because they are deemed

emergency services personnel. § 22.01(e)(1). Accordingly, no rational trier of the

facts could have found beyond a reasonable doubt that Arbogast was a “public

servant” as alleged in the indictment. See Jackson v. Virginia, 443 U.S. 307, 318-

19 (1979). Under Jackson, the State must prove the statutory elements that it has

chosen to allege and not some other alternative statutory elements that it did not

allege. Cada v. State, 334 S.W.3d 766, 776 (Tex. Crim. App. 2011).


      The Texas Penal Code defines public servant as:


      A person elected, selected, appointed, employed, or otherwise
      designated as one of the following, even if he has not yet qualified for
      office or assumed his duties:

      (A) an officer, employee, or agent of government;

      (B) a juror or grand juror; or,

      (C) an arbitrator, referee, or other person who is authorized by law or
      private written agreement to hear or determine a cause or controversy;
      or,

                                          16
      (D) an attorney at law or notary public when participating in the
      performance of a governmental function; or,

      (E) a candidate for nomination or election to public office; or,

      (F) a person who is performing a governmental function under a claim
      of right although he is not legally qualified to do so. TEX. PEN. CODE
      § 1.07(a)(41).


      The first rule of statutory construction is to presume that the legislature

meant what it said. State v. Vasilas, 187 S.W.3d 486, 489 (Tex. Crim. App. 2006).

The Code Construction Act instructs that words and phrases shall be read in

context and construed according to the rules of grammar and common usage. TEX.

GOV’T CODE § 311.011(a). When determining the plain meaning of a statute, the

court must employ the rules of grammar and usage, and presume that every word

in a statute has been used for a purpose and that each word, clause, and sentence

should be given effect if reasonably possible. Liverman v. State, ___ S.W.3d ___,

___, 2015 WL 5579418, at *3 (Tex. Crim. App. 2015). In addition, the

Government Code provides that “[i]n construing a statute, whether or not the

statute is considered ambiguous on its face, a court may consider among other

matters the (1) object sought to be attained; (2) circumstances under which the

statute was enacted; (3) legislative history; (4) common law or former statutory

provisions, including laws upon the same or similar subjects; (5) consequences of a

particular construction; (6) administrative construction of the statute; and (7) title,


                                           17
preamble, and emergency provision. TEX. GOV’T CODE § 311.023. Finally, the

Penal Code instructs that the “rule that a penal statute is to be strictly construed

does not apply to this code. The provisions of this code shall be construed

according to the fair import of their terms, to promote justice and effect the

objectives of the code.” Hardy v. State, 281 S.W.3d 414, 422 (Tex. Crim. App.

2009) (citing TEX. PEN. CODE § 1.05(a)).


      In spite of the plain statutory language showing he is not statutorily a “public

servant,” if Arbogast is to be classified as a “public servant,” he must fall under

either sub (A) or sub (F) of the Penal Code definitions. § 1.07(a)(41)(A) or (F). A

volunteer fireman is not an officer, employee, or agent of government.5 First, the

term “office” is defined as “the right, authority, and duty created and conferred by

law, by which, for a given period, either fixed by law, or enduring at the pleasure

of the creating power, an individual is invested with some portion of the sovereign

functions of the government, to be exercised by him for the benefit of the public.”

Delta Elec. Const. Co. v. City of San Antonio, 437 S.W.2d 602, 606 (Tex. Civ.

App.-- San Antonio 1969, writ ref'd n.r.e.). The Wimberly Volunteer Fire

Department is not a political subdivision of government and Arbogast was not

5
  See TEX. PEN. CODE § 1.07(a)(24) defining the term “government” in the
following manner: “(24) “Government” means: (A) the state; (B) a county,
municipality, or political subdivision of the state; or (C) any branch or agency of
the state, a county, municipality, or political subdivision.”

                                          18
shown to be an officer of the emergency services district which funds the

Department.


      Second, it is clear by using statutory construction, that a “volunteer” fireman

is not a governmental employee under the Penal Code. The Legislature knew it

could include volunteers into the “public servant” definition. As defined elsewhere

under Texas law, an “[e]mployee” includes an officer, volunteer, or employee, a

former officer, volunteer, or employee, and the estate of an officer, volunteer, or

employee or former officer, volunteer, or employee of a local government. TEX.

CIV. PRAC. & REM. CODE § 102.001; see also Norrell v. Gardendale Volunteer

Fire Dep't, 115 S.W.3d 114, 117-118 (Tex. App.--San Antonio 2003 no pet.)

(holding that a volunteer fireman is not an employee for purposes of the Tort

Claims Act). Every word excluded from a statute must be presumed to have been

excluded for a purpose. Cameron v. Terrell & Garrett, 618 S.W.2d 535, 540 (Tex.

1981). When the Legislature has carefully employed a term in one section of a

statute, and has excluded it in another, it should not be implied where excluded.

Smith v. Baldwin, 611 S.W.2d 611, 616 (Tex. 1980). The Wimberly Volunteer

Fire Department is not a political subdivision of government and Arbogast was not

shown to be an employee of the emergency services district which funds the

Department.



                                         19
      Lastly, a volunteer fireman is not an agent of the government. An agent is

one who is authorized by a person or entity to transact business or manage some

affair for the person or entity. Walker Ins. Servs. v. Bottle Rock Power Corp., 108

S.W.3d 538, 549 (Tex. App.--Houston [14th Dist.] 2003, no pet). The essential

feature of agency is the right of control. See Schott Glas v. Adame, 178 S.W.3d

307, 315 (Tex. App.--Houston [14th Dist.] 2005, pet. denied) (concluding no

agency relationship where sales representative sold products of the defendant

manufacturer and others on commission but manufacturer did not control details of

sales representative's work). The right of control includes the right to dictate the

means and details of the agent's performance. Id. Agency is generally a question

of fact. Id. Although not directly answering the question of agency, the Fifth

Circuit has found that a volunteer fireman is not a “state actor” and as such, not

liable under federal law. Yeager v. City of McGregor, 980 F.2d 337, 342-344 (5th

Cir. 1993). However, one of the key holdings in that matter was the finding that a

municipality with a volunteer fire department lacks control over their actions. City

of McGregor, 980 F.2d at 343. This means that no agency exists in situations such

as here between Arbogast and the emergency services district which funds the

Wimberly Volunteer Fire Department. As such, no finding that Arbogast was

acting as a “public servant” can be divined under this subsection.




                                          20
      Arbogast was not “a person who is performing a governmental function

under a claim of right although he is not legally qualified to do so.” Governmental

functions are “in the performance of purely governmental matters solely for the

public benefit.” E. Houston Estate Apartments, L.L.C. v. City of Houston, 294

S.W.3d 723, 730 (Tex. App.-- Houston [1st Dist.] 2009, no pet.). As found by the

Fifth Circuit, firefighting in Texas is not a strictly “governmental function.” City of

McGregor, 980 F.2d at 340-41.


      The State failed to present sufficient evidence from which a rational trier of

the facts could have found Griffin assaulted a public servant as alleged in the

indictment. This court should reform the judgment to an acquittal.


                                Point of Error Two


Griffin was denied the effective assistance of counsel at trial.


      Trial counsel for Griffin engaged in multiple acts of deficient performance

which resulted in prejudice. The acts and omissions now complained of include:

failing to file a motion to suppress evidence recovered following Griffin’s unlawful

warrantless arrest; failing to object at trial to the admission of evidence recovered

following Griffin’s unlawful warrantless arrest; failing to perfect an offer of proof

when the trial court excluded the complainant’s statements during the defendant’s

testimony; failing to argue the complaint’s statements to Griffin were admissible as
                                          21
excited utterances; failing to object to a hearsay statement in which Deputy

Gamble testified Griffin’s fiancé told him she did not see any of the events which

occurred at the dam; failing to object to submission of a jury instruction relative to

a presumption that the defendant knew the person assaulted was a public servant if

he was wearing a distinctive uniform or badge indicating the person’s employment

as a public servant; and failing to object to the absence of instructions required to

be included in the jury charge under TEX. PEN. CODE § 2.05(a)(2)(A)-(D) relative

to the presumption contained within the jury charge that the defendant knew the

person assaulted was a public servant if he was wearing a distinctive uniform or

badge indicating the person’s employment as a public servant.


       Griffin maintains that had counsel not engaged in the above mentioned acts

of deficient performance, there is a reasonable probability the jury would not have

convicted. Likewise, there is a reasonable probability the deficient acts of counsel

resulted in Griffin’s four year term of community supervision. Griffin suffered

prejudice as a result of counsel’s deficient performance during both phases of trial.


      Griffin filed a motion for new trial complaining of counsel’s performance

and the ensuing prejudice (CR 70). A hearing was held on the motion for new trial

and trial counsel testified (1 RR). At the conclusion of the hearing, the trial court

denied the motion for new trial (CR 110, 1 RR 40).


                                          22
                              The Standard of Review


      Under the Sixth and Fourteenth Amendments to the United States

Constitution, a defendant in a criminal case is entitled to the reasonably effective

assistance of counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App.

1986). Pursuant to the standard set out by the Supreme Court in Strickland v.

Washington, 466 U.S. 668, 698 (1984), a defendant seeking relief as a result of

trial counsel’s inept performance must first show that counsel’s performance was

deficient and then demonstrate that this deficient performance prejudiced the

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

Strickland test is applicable to ineffective assistance claims at all phases of both

capital and non-capital trials. Craig v. State, 825 S.W.2d 128, 129 (Tex. Crim.

App. 1992). For an error on counsel’s part to reach this level, there must be a

reasonable probability, a probability sufficient to undermine confidence in the

outcome of the trial, that, but for counsel’s unprofessional errors, the outcome of

the proceeding would have been different. Ex parte Zepeda, 819 S.W.2d 874, 876

(Tex. Crim. App. 1991). The defendant must prove ineffective assistance of

counsel by a preponderance of the evidence. Cannon v. State, 668 S.W.2d 401,

403 (Tex. Crim. App. 1984).




                                          23
      The Supreme Court has held that counsel’s performance is measured against

an “objective standard of reasonableness,” Strickland, 466 U.S. at 688, “under

prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510, 527 (2003). The

Supreme Court has held, however, that a defendant need not show that counsel’s

deficient performance more likely than not altered the outcome in the case:


      The result of a proceeding can be rendered unreliable, and hence the
      proceeding itself unfair, even if the errors of counsel cannot be shown
      by a preponderance of the evidence to have determined the outcome...
      In every case, the court should be concerned with whether ... the result
      of the particular proceeding is unreliable because of a breakdown in
      the adversarial process that our system counts on to produce just
      results. Strickland, 466 U.S. at 694-696.


      Although the adequacy of counsel’s performance is gauged by the totality of

the representation afforded the accused, “[s]ometimes a single error is so

substantial that it alone causes the attorney’s assistance to fall below the sixth

amendment standard.” Nero v. Blackburn, 597 F.2d 991, 994 (5th Cir. 1979). As

the First Court of Appeals has remarked, “[t]o ignore a grievous error simply

because it is single, while granting relief where multiple errors cumulatively reach

the same magnitude, would be contrary to the reasons that caused the creation of

the doctrine of ineffective assistance of counsel.” Cooper v. State, 769 S.W.2d

301, 305 (Tex. App. – Houston [1st Dist.]. 1989); see also Ex parte Felton, 815




                                          24
S.W.2d 733, 736 (Tex. Crim. App. 1991)(single error was of sufficient magnitude

to render trial counsel’s performance ineffective).


      While Griffin has the burden to overcome the “strong presumption” that

counsel’s challenged conduct “might be considered sound trial strategy,” Bell v.

Cone, 535 U.S. 685, 698 (2000), this does not mean that counsel may insulate his

challenged conduct from review merely by claiming his conduct was “strategic.”

Whether counsel’s conduct was in the first instance a matter of strategy is a

question of fact, but whether it was objectively reasonable is a question of law,

Collier v. Turpin, 155 F.3d 1277, 1290 (11th Cir. 1998), a legal conclusion to

which no deference is paid. Strickland, 466 U.S. at 698 (issue of ineffective

assistance of counsel is not a question of “basic, primary, or historical fact,” and

“both the performance and prejudice components of the ineffectiveness inquiry are

mixed questions of law and fact”); Westley v. Johnson, 83 F.3d 714, 720 (5th Cir.

1996) (“Strickland makes it clear that determinations of ineffectiveness of counsel

are not factual findings of this nature which call for federal court deference ...”).


       The Supreme Court has stressed that strategic choices are entitled to

deference only to the extent they are based on informed decisions. Strickland, 466

U.S. at 690-691. Because there is a “crucial distinction between strategic

judgments and plain omissions,” Loyd v. Whitley, 977 F.2d 149, 158 (5th Cir.


                                          25
1992), a strategy based on counsel’s misunderstanding of the law or a failure to

fully investigate the facts is not objectively reasonable. Moore v. Johnson, 194

F.3d 586, 610 (5th Cir. 1999).


      This Court is “not required to condone unreasonable decisions parading

under the umbrella of strategy, or to fabricate tactical decisions on behalf of

counsel when it appears on the face of the record that counsel made no strategic

decision at all.” Id. at 604. “The mere incantation of ‘strategy’ does not insulate

attorney behavior from review.” Hardwick v. Crosby, 320 F.3d 1127, 1186 (11th

Cir. 2003); see also Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984)(“even

deliberate trial tactics may constitute ineffective assistance of counsel if they fall

outside the wide range of professionally competent assistance”); Washington v.

Hofbauer, 228 F.3d 689, 704 (6th Cir. 2000)(“the label ‘strategy’ is not a blanket

justification for conduct which otherwise amounts to ineffective assistance of

counsel”); Profitt v. Waldron, 831 F.2d 1245, 1248 (5th Cir. 1987)(“This measure

of deference [to counsel’s claims of trial strategy] must not be watered down into a

disguised form of acquiescence.”).


      An attorney must have a firm command of the facts of the case as well as the

governing law before he can render reasonably effective assistance of counsel. Ex

parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983). A claimed trial strategy


                                           26
premised upon an incorrect understanding of controlling case law cannot be an

objectively reasonable trial strategy. See Ex parte Welborn, 785 S.W.2d 391, 395

(Tex. Crim. App. 1990) (unreasonable trial strategy not to object to inadmissible

hearsay in pen packets where counsel felt material could be introduced “in a more

damaging manner”); Stone v. State, 17 S.W.3d 348, 353 (Tex. App.-Corpus Christi

2000, pet. ref’d) (unreasonable trial strategy to elicit defendant’s prior murder

conviction where counsel did not know it was too remote for impeachment

purposes); Gifford v. State, 980 S.W.2d 791, 794 (Tex. App. – Houston [14th Dist.]

1998, pet. ref’d) (unreasonable trial strategy for counsel to fail to object to

inadmissible victim impact testimony); Cooper, 769 S.W.2d at 305 (unreasonable

trial strategy to call defendant to testify before jury as to finality of prior conviction

where State then cross-examined him as to 14 other priors where counsel did not

know that he was entitled to a hearing outside jury’s presence).


                         The Acts of Deficient Performance


1. Counsel failed to file a motion to suppress evidence recovered following

Griffin’s unlawful warrantless arrest.


2. Counsel failed to object at trial to the admission of evidence recovered

following Griffin’s unlawful warrantless arrest.



                                           27
      Philip Arbogast testified that Griffin struck him in the neck, he lost his

balance, and fell off a dam into Lone Man Creek (3 RR 42). After climbing out of

the creek, Arbogast called on his radio to report what had happened to him (3 RR

44). Hays County Deputy Sheriff David Gamble responded to Arbogast’s report (3

RR 109). Arbogast told him what had happened and then followed Gamble and

another deputy to Griffin’s house and identified Griffin as his assailant (3 RR 114).


      Deputy Gamble came to a conclusion regarding the occurrence after

speaking with Arbogast (3 RR 144). He went to Griffin’s home and encountered

him on the sidewalk (3 RR 147). Upon questioning, Griffin responded to Gamble

“fuck you get off my property” (3 RR 148). After telling Griffin twice to place his

hands behind his back, Gamble handcuffed him and led him to the squad car for

the offense of assault on a public servant (3 RR 148). Griffin was agitated as

Gamble led him to squad car (3 RR 149). When asked if he had any weapons,

Griffin responded “I have my fucking dick in my pants, would you like for me to

shove it up your ass?” (3 RR 150). Gamble threatened to use a Taser on Griffin

twice when he did not enter the squad car in the manner directed (3 RR 151, 179).


      A 32 minute videotape from inside Deputy Schafer’s squad car was admitted

into evidence without objection by defense counsel (3 RR 204, 6 RR SX 15). The

tape depicts Griffin’s transport to jail from his home. The tape is replete with


                                         28
cursing by Griffin, challenges to the transporting officer regarding his arrest,

assertions of contaminated blood in the squad car, disparaging comments regarding

Arbogast, questioning the judgment of the arresting officers, and disrespectful

comments toward law enforcement.


      Hays County Deputy Sheriff Anthony Schafer assisted in Griffin’s arrest (3

RR 201). He described Griffin as being belligerent, noncompliant, and aggressive

(3 RR 202, 206).


      A 23 minute videotape from the scene of the arrest was admitted into

evidence without objection by defense counsel (3 RR 155, 6 RR SX 13). The

videotape contains Gamble’s initial encounter with Griffin upon his arrest, arguing

by Griffin with the officer, arguing by Griffin with Arbogast, Griffin’s statement

regarding his penis, Griffin’s noncompliance with law enforcement directives,

Gamble’s threats to use the Taser on Griffin if he did not get in and stay in the

patrol vehicle, Arbogast’s rendition of the offense to law enforcement, cursing by

Griffin, the assertion by Griffin officers would beat and Taser him if they let him

out of the car, and disparaging comments by Griffin regarding Arbogast.


      A police officer may arrest an individual without a warrant only if (1) there

is probable cause with respect to that individual, Henry v. United States, 361 U.S.

98 (1959), and (2) the arrest falls within one of the exceptions specified in TEX.

                                          29
CRIM. PROC. CODE arts. 14.01 through 14.04 Self v. State, 709 S.W.2d 662, 665

(Tex. Crim. App.1986); Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App.

1989).


      Here, Griffin’s warrantless arrest was not permissible under any of the

statutory exceptions allowing an arrest without a warrant. The offense was not

committed within the presence or view of the arresting officers. Art. 14.01. The

offense was not committed within the presence or view of a magistrate. Art. 14.02.

The officer did not have probable cause to believe Arbogast would suffer further

bodily injury at the hands of Griffin. Art. 14.03(a)(2). There was no showing

Griffin was about to escape from his home. Art. 14.04.


      While suppression of evidence is left to the court, it is the duty of defense

attorney to attempt through all legal means to have evidence detrimental to his

client suppressed. Mitchell v. State, 762 S.W.2d 916, 920 (Tex. App.—San

Antonio 1988, pet. ref'd). Counsel is ineffective when he fails to object to the

fruits of an unlawful arrest. Perkins v. State, 812 S.W.2d 326, 329 (Tex. Crim.

App. 1991); Boyington v. State, 738 S.W.2d 704, 708 (Tex. App.—Houston [1st

Dist.] 1985, no pet.).


      Despite the unlawfulness of Griffin’s warrantless arrest, counsel at trial did

not file a motion to suppress or object at trial to the fruits of the unlawful arrest.

                                           30
Those were acts of deficient performance. The fruits of the unlawful arrest include

the officer’s statements and observations at the arrest. The fruits additionally

include Griffin’s statements as contained on the videotape recordings from the

patrol vehicle.


       Trial counsel conceded Griffin’s arrest was unlawful and the two dash cam

videos were harmful to Griffin (1 RR 13). Counsel claimed to have made a

strategic decision not to seek suppression of the videos and the officer’s testimony

because they demonstrated how poorly Griffin was treated by the officers (1 RR

13).


       Counsel’s claimed strategic decision finds no support in the record. The

videos and testimony reflect Griffin was treated with courtesy and respect by the

officers. However, Griffin is depicted as belligerent, noncompliant, and

disrespectful. Absent record support for his claimed strategy, the strategy was

objectively unreasonable as a matter of law.


3. Counsel failed to perfect an offer of proof when the trial court excluded the

complainant’s statements during the defendant’s testimony.


4. Counsel failed to argue the complainant’s statements to Griffin were

admissible as excited utterances.



                                         31
      Arbogast testified that he parked his tanker truck on a dam to draw water to

be taken to a fire (3 RR 40). He was approached on the dam by Griffin who said

“this is fucking private land and fucking private water” (3 RR 40). Arbogast stated

he told Griffin that the State of Texas owns the water and it was needed for a

nearby structure fire (3 RR 41).


      Griffin testified he went to the creek to check on the truck because he

thought the right front wheel had fallen off the dam (4 RR 41). He saw Arbogast

and did not immediately recognize he was a fireman (4 RR 41). Griffin described

Arbogast’s demeanor as frantic, agitated, and rude (4 RR 42). Griffin asked

Arbogast what he doing and Arbogast responded “Don’t interfere with . . . (4 RR

42). At this point, the State’s hearsay objection was sustained (4 RR 42). Upon

again seeking Arbogast’s response to Griffin’s inquiry at the creek, the State’s

hearsay objection was once again sustained (4 RR 43). Counsel failed to perfect an

offer of proof or argue Arbogast’s statements were admissible as excited

utterances.


      An attorney must have a firm command of the facts of the case as well as the

governing law before he can render reasonably effective assistance of counsel.

Lilly, 656 S.W.2d at 493. Here, upon excluding Arbogast’s statements to Griffin,

counsel for Griffin failed to perfect the error by making an offer of proof as


                                         32
required under TEX. R. EVID. 103(a)(2). He likewise failed to argue that due to

Arbogast’s frantic and agitated state, his statements to Griffin were admissible as

excited utterances under TEX. R. EVID. 803(2). Both omissions were acts of

deficient performance.


      During the hearing on the motion for new trial, counsel claimed he did not

attempt to perfect a bill or argue Arbogast’s statements on the bridge were excited

utterances because the testimony had already been admitted through cross-

examination of Arbogast (1 RR 15-16). The record does not support counsel’s

assertion. During cross-examination of Arbogast the same matter excluded was

not developed or presented (3 RR 63-117 and 128-137). Absent record support for

his claimed strategy, the strategy was objectively unreasonable as a matter of law.


5. Counsel failed to object to a hearsay statement in which Deputy Gamble

testified Griffin’s fiancé told him she could not see any of the events which

occurred at the dam.


      On direct examination, the prosecutor asked Deputy Gamble what

information he learned from Griffin’s fiancé at the scene (3 RR 153). Without

objection, Gamble was permitted to testify that the fiancé told him that she did not

see any of the events which occurred at the dam between Griffin and Arbogast (3

RR 153-154).

                                         33
       Tonya Adams is engaged to Griffin and lives with him in Wimberley (4 RR

6). On the day of the instant event, she was home with Griffin and they were on

the deck of their home (4 RR 8). They saw a firetruck enter the neighborhood at a

high rate of speed and proceed to a low water dam (4 RR 8). She saw Griffin go to

investigate what the driver of the truck was doing and the next thing she knew, the

fireman was in the creek (4 RR 9). Griffin did not push the fireman into the creek

and was not near him when he fell in the creek (4 RR 10). She saw Griffin bend

down and try to help the fireman from the creek (4 RR 11). Griffin then returned

to the house and called 911 to report a fireman in the creek (4 RR 12). She noticed

scratches to Griffin’s knee after he tried to pull the fireman from the water (4 RR

33).


       Deficient performance is shown when counsel allows the jury to hear

prejudicial and clearly inadmissible evidence because such evidence could serve

no strategic value. Robertson v. State, 187 S.W.3d 475, 484 (Tex. Crim. App.

2006). In the instant cause, there could have been no strategic reason for counsel

to have failed to object to Gamble’s hearsay testimony that Adams told him she did

not see the events at the dam. Adams was a critical defense witness and her

testimony was undermined by inadmissible hearsay from Gamble. The failure to

object to that evidence was an act of deficient performance.



                                         34
      During the hearing on the motion for new trial, counsel testified he did not

object to Gamble’s hearsay testimony because it proved Gamble was a liar and

untruthful in his testimony (1 RR 18). Once again counsel’s claimed strategy was

objectively unreasonable. The improperly admitted testimony undermined the

defense evidence presented by Adams that she viewed the incident and Griffin did

not push Arbogast into the creek (4 RR 9-11).


6. Counsel failed to object to submission of a jury instruction relative to a

presumption that the defendant knew the person assaulted was a public

servant if he was wearing a distinctive uniform or badge indicating the

person’s employment as a public servant.


7. Counsel failed to object to the absence of instructions required to be

included in the jury charge under TEX. PEN. CODE § 2.05(a)(2)(A)-(D)

relative to a presumption contained within the jury charge that the defendant

knew the person assaulted was a public servant if he was wearing a distinctive

uniform or badge indicating the person’s employment as a public servant.


      Arbogast testified that at the time of the incident, he was wearing a t-shirt

and blue jeans (3 RR 51, 105). He explained that no particular uniform is required

and volunteers show up for service in “whatever” (3 RR 106). The t-shirt he was

wearing said “Wimberley Fire and Rescue” on both the front and the back (3 RR

                                         35
59, 6 RR SX 11-12). Arbogast never identified himself as a fireman to Griffin (3

RR 106). Griffin testified that upon initially encountering Arbogast, he did not

know he was a fireman (4 RR 41).


      After both sides closed, the court read the charge to the jury (4 RR 88). The

charge included an instruction that the defendant is presumed to have known the

person assaulted was a public servant if the person was wearing a distinctive

uniform or badge indicating the person's employment as a public servant (4 RR

97). See TEX. PEN. CODE § 22.01(d). No objection was voiced to the charge by

defense counsel (4 RR 87).


      Counsel’s failure to object to the presumption within the charge presents two

acts of deficient performance. First, the presumption was not warranted because

Arbogast was not wearing a distinctive uniform or badge. As he attested,

volunteers wear “whatever” and he was wearing a t-shirt and blue jeans. Compare

Gokey v. State, 314 S.W.3d 63, 67 (Tex. App.—San Antonio 2010, pet. ref'd,

untimely filed) (finding presumption applicable when deputy was in full uniform,

driving a marked patrol vehicle, and badge prominently displayed). A failure to

object to a charge which is not supported by the evidence is an act of deficient

performance. Summitt v. Blackburn, 795 F.2d 1237, 1245 (5th Cir. 1986).




                                         36
      The second act of deficient performance involved counsel’s failure to object

to the absence of the instructions required by TEX. PEN. CODE § 2.05(a)(2)(A)-

(D). The statute provides that if the existence of the presumed fact is submitted to

the jury, the court shall charge the jury, in terms of the presumption and the

specific element to which it applies, as follows:


      (A) that the facts giving rise to the presumption must be proven
      beyond a reasonable doubt;

      (B) that if such facts are proven beyond a reasonable doubt the jury
      may find that the element of the offense sought to be presumed exists,
      but it is not bound to so find;

      (C) that even though the jury may find the existence of such element,
      the state must prove beyond a reasonable doubt each of the other
      elements of the offense charged; and

      (D) if the jury has a reasonable doubt as to the existence of a fact or
      facts giving rise to the presumption, the presumption fails and the jury
      shall not consider the presumption for any purpose. § 2.05(a)(2)(A)-
      (D).


      As long as section 2.05 is incorporated into a jury charge that contains a

presumption, the presumption will be deemed a permissive one. Tottenham v.

State, 285 S.W.3d 19, 31 (Tex. App. – Houston [1st Dist.] 2009, pet. ref’d). Thus,

a section 2.05 instruction converts a mandatory presumption into a permissive

presumption. Jimenez v. State, 419 S.W.3d 706, 717 (Tex. App.—Houston [1st

Dist.] 2013, pet. ref’d). Without a section 2.05 instruction, general language


                                         37
instructing the jury that it must find the defendant guilty beyond a reasonable doubt

to convict and that the prosecution has the duty of proving each element beyond a

reasonable doubt does not remedy the error of a mandatory presumption. See Id.,

Garrett v. State, 159 S.W.3d 717, 721 (Tex. App. – Fort Worth 2005) affirmed 220

S.W.3d 926 (Tex. Crim. App. 2007).


      Here the absence of the § 2.05 cautionary instructions created an

unconstitutional mandatory presumption that Griffin knew Arbogast was a public

servant. The erroneous instruction could have been avoided had counsel timely

and properly voiced and objection to the charge. That failure was an act of

deficient performance. See Ex parte Drinkert, 821 S.W.2d 953, 956 (Tex. Crim.

App. 1991) (finding trial counsel's failure to object to an erroneous jury charge was

an act of deficient performance).


      During the hearing on the motion for new trial, counsel testified he did not

object to the absence of the § 2.05 instructions because he thought the evidence

was sufficient to prove Griffin knew Arbogast was a firefighter (1 RR 22). Griffin

submits counsel’s explanation is objectively unreasonable. Mandatory

presumptions are not permitted in a criminal case and counsel’s failure to object

relieved the State of its obligation to prove an essential element of the offense –

knowledge by Griffin of Arbogast’s status.


                                          38
  Prejudice to Griffin as a Result of Counsel’s Deficient Acts and Omissions


      The prejudice prong of Strickland requires this Court to determine whether

counsel’s objectively deficient conduct was sufficient to undermine its confidence

in the verdict; that is, whether there is a reasonable probability that, but for this

objectively deficient conduct, the result of the proceedings would have been

different. Strickland, 466 U.S. at 694; Kyles v. Whitley, 514 U.S. 419, 430 (1995).

The prejudice Griffin must show is by less than a preponderance of the evidence

because the reasonable-probability standard is not the same as, and should not be

confused with, a requirement that a defendant prove by a preponderance of the

evidence that but for error things would have been different. United States v.

Dominguez Benitez, 542 U.S. 74, 82 n. 9 (2004). In assessing prejudice, this Court

is obligated to consider the cumulative effect of the multiplicity of counsel’s errors.

Strickland, 466 U.S. at 690.


      The Sixth Amendment does not require counsel to invent a defense or act in

an unethical manner. It does, however, require counsel to put the prosecution’s

case to the test through vigorous partisan advocacy. Haynes v. Cain, 272 F.3d 757,

764 (5th Cir. 2001). Counsel must make a significant effort, based on reasonable

investigation and logical argument, to defend his client. Patrasso v. Nelson, 121

F.3d 297, 303-304 (7th Cir. 1997).


                                           39
      Simply put, the cumulative effect of counsel’s errors caused a breakdown in

the adversarial process that our system counts on to produce just results sufficient

to undermine this Court’s confidence in the outcome of Griffin’s trial. Strickland,

466 U.S. at 696.


      The videotapes and arrest conduct which should have been challenged by

counsel as the fruit of an unlawful warrantless arrest were the centerpiece of the

State’s case against Griffin. The videotapes were played in their entirety for the

jury (3 RR 155, 204, 6 RR SX 13 and 15). The existence and content of the tapes

as well as Griffin’s arrest conduct were repeatedly stressed by the prosecutor upon

seeking a conviction from the jury (4 RR 122-128).


      The initial exchange between Griffin and Arbogast was critical to Griffin’s

defense that he did not assault Arbogast. When the State’s hearsay objection to

Griffin’s testimony was sustained, counsel made no effort to show the evidence

admissible under a well-established hearsay exception. He further failed to perfect

an error in the exclusion of the evidence by making a proffer of proof. Had the

evidence been allowed, it would have shown Arbogast to have been hostile and

aggressive upon his initial encounter with Griffin.


      For no discernable reason, counsel failed to voice an objection upon the

State eliciting hearsay evidence that Griffin’s fiancé did not see the events at the

                                          40
dam. Her testimony was critical to Griffin’s defense and undermined by

inadmissible evidence simply because counsel failed to object as he should have at

trial.


         Finally, an unconstitutional mandatory presumption was submitted to the

jury on an essential element of the offense. Counsel made no effort to ensure the

jury was properly instructed on the elements of the offense and the State’s burden

of proof.


         This Court should conclude that counsel’s multiple acts of deficient conduct

cause grave concern as to the fairness of the underlying proceeding. Griffin

submits that had counsel discharged his duty, there is a reasonable probability the

result of the proceeding would have been different. Griffin is entitled to a new trial

in which he may be afforded the effective assistance of counsel.


                                        Prayer


         Wherefore, premises considered, Gary Lee Griffin, prays this Honorable

Court will reverse the judgment of conviction and reform to an acquittal, remand to

the trial court for a new trial, or enter any other relief appropriate under the facts

and the law.




                                           41
                                              Respectfully submitted,

                                              /s/ Richard E. Wetzel
                                              Richard E. Wetzel
                                              State Bar No. 21236300

                                              1411 West Avenue
                                              Suite 100
                                              Austin, TX 78701

                                              (512) 469-7943
                                              (512) 474-5594 – facsimile
                                              wetzel_law@1411west.com

                                              Attorney for Appellant
                                              Gary Lee Griffin


                            Certificate of Compliance


      This pleading complies with TEX. R. APP. P. 9.4. According to the word
count function of the computer program used to prepare the document, the
pleading contains 8,964 words excluding the items not to be included within the
word count limit.

                                              /s/ Richard E. Wetzel
                                              Richard E. Wetzel
                                              State Bar No. 21236300


                               Certificate of Service

      This is to certify that a true and correct copy of the foregoing pleading was
emailed to counsel for the State, Jennifer Stalbaum, Assistant Criminal District
Attorney, at her email address of jennifer.stalbaum@co.hays.tx.us on this the 20th
day of November, 2015.

                                              /s/ Richard E. Wetzel
                                              Richard E. Wetzel
                                              State Bar No. 21236300
                                         42
