                                                                                   ACCEPTED
                                                                               03-15-00392-CR
                                                                                       6061125
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                          7/14/2015 2:44:08 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                      No. 03-15-00392-CR

           IN THE TEXAS COURT OF APPEALS             FILED IN
                                              3rd COURT OF APPEALS
                    THIRD DISTRICT                AUSTIN, TEXAS
                       AT AUSTIN              7/14/2015 2:44:08 PM
_________________________________________________________
                                                JEFFREY D. KYLE
                                                            Clerk
                TYLER DAVID EBANKS, Appellant

                              v.

                  THE STATE OF TEXAS
_________________________________________________________

               DIRECT APPEAL FROM THE
           TH
        27 DISTRICT COURT OF BELL COUNTY
          TRIAL COURT CAUSE NUMBER 72.912
_________________________________________________________

                 BRIEF FOR APPELLANT
_________________________________________________________




                                   Richard E. Wetzel
                                   State Bar No. 21236300

                                   1411 West Avenue, Suite 100
                                   Austin, Texas 78701

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

                                   Attorney for Appellant
                                   Tyler David Ebanks
                     Identity of Parties and Counsel


Appellant:                              Tyler David Ebanks

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

Trial Counsel:                          Michael R. Cooper
                                        Attorney at Law
                                        P.O. Box 1276
                                        Salado, TX
                                        76571

Appellee:                               The State of Texas

Appellate Counsel                       Henry Garza
And Trial Counsel:                      District Attorney
                                        Post Office Box 540
                                        Belton, TX 76513

Trial Judge:                            Hon. John Gauntt
                                        27th District Court
                                        Bell County, Texas




                                   ii
                                Table of Contents
                                                                                         Page

List of Parties                                           . . . . . . . . . . . . . . . . . . .ii

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

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

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

Issue Presented                                             ..................1

Statement of Facts                                        ...................2

Summary of the Argument                                   ...................6

Point of Error                                            ...................7

Ebanks’ plea of guilty was not freely and voluntarily entered because it was the
result of ineffective assistance of counsel (2 RR 8-9, 3 RR 65-68 and 85-86).

Prayer                                                    . . . . . . . . . . . . . . . . . . 11

Certificate of Compliance                                 . . . . . . . . . . . . . . . . . . 12

Certificate of Service                                    . . . . . . . . . . . . . . . . . . 12




                                        iii
                                Index of Authorities
                                                                                       Page
Cases

Battle, Ex parte, 817 S.W.2d 81
(Tex. Crim. App. 1991)                                 . . . . . . . . . . . . . . . . . . . .9

Burns, Ex parte, 601 S.W.2d 370
(Tex. Crim. App. 1980)                                 . . . . . . . . . . . . . . . . . . . .9

Gallegos, Ex parte, 511 S.W.2d 510
(Tex. Crim. App. 1974)                                 . . . . . . . . . . . . . . . . . . .10

Harrington, Ex parte, 310 S.W.3d 452
(Tex. Crim. App. 2010)                                 . . . . . . . . . . . . . . . . . . . .9

Hill v. Lockhart, 474 U.S. 52
(1985)                                                 . . . . . . . . . . . . . . . . . . . .9

Jefferson v. State, 189 S.W.3d 305
(Tex. Crim. App. 2006)                                 . . . . . . . . . . . . . . . . . . . .7

McMann v. Richardson, 397 U.S. 759
(1970)                                                 . . . . . . . . . . . . . . . . . . . .9

Morse, Ex parte, 591 S.W.2d 904
(Tex. Crim. App. 1980)                                 . . . . . . . . . . . . . . . . . . .10

Moussazadeh, Ex parte, 361 S.W.3d 684
(Tex. Crim. App. 2012)                                 . . . . . . . . . . . . . . . . . . . .9

Williams v. State, 235 S.W.3d 742
(Tex. Crim. App. 2007)                                 . . . . . . . . . . . . . . . . . . . .8

Young v. State, 358 S.W.3d 790
(Tex. App.—Houston [14th Dist.] 2012, pet. ref'd)      . . . . . . . . . . . . . . . . . . . .8

Statutes

TEX. PEN. CODE § 1.07(a)(46)                           . . . . . . . . . . . . . . . . . . . .8
                                         iv
TEX. PEN. CODE § 22.04(a)(1)       . . . . . . . . . . . . . . . . . .2, 7

TEX. PEN. CODE § 22.04(c)(1)       . . . . . . . . . . . . . . . . . . . .8

TEX. PEN. CODE § 22.04(e)          . . . . . . . . . . . . . . . . . . . .8

Rules

TEX. R. APP. P. 9.4                . . . . . . . . . . . . . . . . . . .12




                               v
                              Statement of the Case


      This is an appeal from a criminal proceeding. Tyler David Ebanks was

indicted by a Bell County grand jury for committing the offense of causing serious

bodily injury to a child (CR 4). He executed various waivers and a judicial

confession (CR 30-37). There was no plea agreement with the State and the full

range of punishment was available to the trial court (2 RR 5). A plea of guilty was

entered by Ebanks and accepted by the trial court as voluntary (2 RR 8). The court

found the evidence sufficient to support a finding of guilt, but withheld such a

finding pending preparation of a presentence investigation report (2 RR 10). The

report was prepared and reviewed by the trial court (3 RR 95). Following the

presentation of punishment evidence from both sides, the trial court found Ebanks

guilty and assessed punishment at 30 years of confinement (3 RR 100). The trial

court certified Ebanks’ right to appeal (CR 65). Notice of appeal was timely filed

(CR 64).


                            Issue Presented on Appeal


Point of Error


Ebanks’ plea of guilty was not freely and voluntarily entered because it was the
result of ineffective assistance of counsel (2 RR 8-9, 3 RR 65-68 and 85-86).



                                        -1-
                                 Statement of Facts


      The indictment alleges that on or about May 7, 2014, Ebanks intentionally

and knowingly caused serious bodily injury to A.J., a child 14 years of age or

younger, by striking him (CR 4). See TEX. PEN. CODE § 22.04(a)(1). The offense

alleged is a first degree felony. See § 22.04(e).


      At a guilty plea proceeding held on February 26, 2015, Ebanks assured the

trial court he could read and write, was competent, and a citizen of the United

States (2 RR 4). The trial court explained the range of punishment and the fact it

was an “open plea” with the full range of punishment available (2 RR 5). Ebanks

and counsel agreed they have executed various waivers in connection with the plea

of guilty (2 RR 6). Ebanks entered a plea of guilty to the indicted offense which

was accepted by the trial court as voluntary (2 RR 8). Ebanks represented to the

court he was pleading guilty because he was guilty and for no other reason (2 RR

8). Trial counsel for Ebanks assured the court the guilty plea was freely and

voluntarily made (2 RR 9). A judicial confession executed by Ebanks was

admitted into evidence (2 RR 9, 4 RR SX 1). The court found the evidence

sufficient to support a finding of guilt, but withheld such a finding pending

preparation of a presentence investigation report (2 RR 10).




                                         -2-
      The matter was recalled on May 7, 2015 (3 RR). Stephanie Jones is Ebanks’

ex-wife and the mother of the complainant, A.J. (3 RR 6). In May of 2014, A.J.

was three years of age (3 RR 7). While Stephanie was at the store on May 7, 2014,

she received a call from Ebanks telling her to come home immediately (3 RR 7).

Upon arriving home, she found A.J. unresponsive and she then called 911 for

assistance (3 RR 7). Ebanks told her A.J. was injured when he fell from his crib (3

RR 7).


      A.J. was taken to the hospital and it was determined he had two skull

fractures, bleeding in his brain, and a broken right ear (3 RR 8). She was advised

the injuries were not consistent with falling from a crib (3 RR 8). A.J. was in the

hospital for over a month (3 RR 11). Stephanie identified pictures taken of A.J. in

the hospital (3 RR 10, 4 RR SX 2-4).


      Since being released from the hospital, A.J. has suffered from various

learning disabilities he did not have before the injury (3 RR 8). He had to relearn

numerous skills including walking, talking, and feeding himself (3 RR 9). She

does not know the long term prognosis for her child (3 RR 9, 26).


      She never saw Ebanks hit or abuse A.J. (3 RR 21). She related that in March

of 2014, Ebanks called her at work and told her A.J. hurt himself when he fell in

the bathtub (3 RR 24). When she came home, she found bruises on A.J.’s face

                                        -3-
from the bathtub fall (3 RR 24). She took pictures of his injuries, including an

injury to his ear, which were admitted into evidence (3 RR 25, 4 RR SX 5-6).


      Ebanks became A.J.’s stepfather when he and Stephanie married in

September of 2013 (3 RR 15). Since A.J. was injured in May of 2014, Stephanie

has divorced Ebanks and given birth to his son (3 RR 27). The State rested on

punishment (3 RR 28).


      Dr. William Lee Carter is a psychologist from Waco (3 RR 29-30). Carter

was retained by the defense to examine Ebanks with relation to the reason A.J. was

injured and Ebanks prospects for the future (3 RR 31).


      Carter explained that Ebanks was raised in a dysfunctional family, his

parents divorced, and father was abusive both physically and emotionally (3 RR

32). Ebanks was placed with CPS, lived in various treatment centers, and

eventually left to join the army (3 RR 32). He was honorably discharged from the

military due to a problem with his legs (3 RR 33).


      Ebanks has a normal IQ (3 RR 33). He has no prior criminal record (3 RR

34). Ebanks was 20 years old when he married Stephanie (3 RR 34). Carter did

not believe Ebanks was ready at 20 years of age for marriage or the responsibility

of being a stepfather (3 RR 34). Carter thought that Ebanks’ lack of good

parenting role models led him to hit A.J. because that is what had been done to
                                        -4-
Ebanks as a child (3 RR 35). Ebanks expressed remorse to Carter for injuring A.J.

(3 RR 37).


       Carter’s report was admitted into evidence (3 RR 36, 4 RR DX 1). Carter

diagnosed Ebanks as suffering from personality dysfunctions, including narcissism

and compulsive conduct (3 RR 36). The report noted that Ebanks told Carter that

the slap to the face is not what hurt A.J., rather, the child was hurt when he fell and

struck his head on the corner of the bed (4 RR DX 1 at 5).


       Ebanks’ mother, Tammy Jennings, was called as a witness (3 RR 43). She

left her marriage to Ebanks’ father after 10 years because he was abusive (3 RR

45). She explained that while growing up, her three sons lived in various places

including with her, their father, CPS, foster care, treatment centers, and their

grandmother (3 RR 47). She had a daughter which she placed for adoption (3 RR

46).


       After Ebanks lived with his father for two years, he left due to his father’s

abuse and went to live with his grandmother (3 RR 49). He graduated from high

school and joined the army (3 RR 50).


       After reading Dr. Carter’s report, Jennings believed Ebanks was acting like

his abusive father in his relationships with Stephanie and A.J. (3 RR 54). She

asked the court to place her son on community supervision (3 RR 55).
                                         -5-
      Ebanks testified A.J. was injured when he struck him on the right side of the

face with an open hand (3 RR 65). He struck A.J. because the child refused to take

a nap (3 RR 65). After being struck in the face, A.J. fell and struck his head on the

box springs of a bed (3 RR 66). After hitting his head on the box springs, A.J.

began to shake (3 RR 66). Ebanks denied intending to hurt A.J. (3 RR 66, 68). He

denied hitting the child hard enough to break his ear or fracture the child’s skull (3

RR 85-86). He was remorseful about the incident (3 RR 68). Ebanks asked the

judge to place him on community supervision (3 RR 72). The defense rested and

both sides closed (3 RR 95).


      The court reviewed the presentence report (3 RR 95). In argument, Ebanks

sought community supervision and the State sought a 50 year sentence (3 RR 96,

99). The trial court entered a finding of guilt, assessed punishment at 30 years of

incarceration, and sentenced Ebanks in open court (3 RR 100).


                            Summary of the Argument


      In a single point of error, Ebanks complains his plea of guilty was

involuntary because he was denied the effective assistance of counsel. Ebanks

asserted his innocence to the charged offense during the guilty plea proceeding

when he repeatedly claimed he did not intend to injure the child. Intent to cause

the result of serious bodily injury is the essence of the offense charged against

                                         -6-
Ebanks. A plea of guilty while testifying to innocence cannot be free, voluntary,

and intelligently entered. Upon the protestations of innocence during the plea

proceeding, counsel should have moved to withdraw Ebanks’ previously entered

plea of guilty because it was not freely and voluntarily entered. Allowing the plea

proceedings to continue despite Ebanks’ assertion of no intent to injure the child

was an act of deficient performance by trial counsel. Counsel failed to properly

advise Ebanks on the elements of the offense and Ebanks was in no position to

enter a plea of guilty to an offense he did not understand. Prejudice is present

because had Ebanks understood the elements of the offense in relation to his

conduct, he would not have entered a plea of guilty and would have insisted upon a

jury trial on a plea of not guilty. This Court should reverse the judgment of

conviction due Ebanks’ involuntary guilty plea.


                                     Point of Error


Ebanks’ plea of guilty was not freely and voluntarily entered because it was
the result of ineffective assistance of counsel (2 RR 8-9, 3 RR 65-68 and 85-86).


       Ebanks was indicted for the offense of injury to a child by causing serious

bodily injury. Under the Texas Penal Code, “[a] person commits an offense [of

injury to a child] if he ... intentionally, or knowingly, ... causes to a child ... serious

bodily injury....” TEX. PEN. CODE § 22.04(a)(1); Jefferson v. State, 189 S.W.3d


                                           -7-
305, 312 (Tex. Crim. App. 2006). A child is a person fourteen years of age or

younger. § 22.04(c)(1). “ ‘Serious bodily injury’ means bodily injury that creates a

substantial risk of death, or that causes death.” Id. at § 1.07(a)(46). Injury to a

child is a result-oriented offense requiring a mental state that relates not to the

specific conduct but to the result of that conduct. Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007); Young v. State, 358 S.W.3d 790, 802 (Tex.

App.—Houston [14th Dist.] 2012, pet. ref'd).


      At a guilty plea proceeding held on February 26, 2015, Ebanks assured the

trial court he could read and write, was competent, and a citizen of the United

States (2 RR 4). The trial court explained the range of punishment and the fact it

was an “open plea” with the full range of punishment available (2 RR 5). Ebanks

and counsel agreed they have executed various waivers in connection with the plea

of guilty (2 RR 6). Ebanks entered a plea of guilty to the indicted offense which

was accepted by the trial court as voluntary (2 RR 8). Ebanks represented to the

court he was pleading guilty because he was guilty and for no other reason (2 RR

8). Trial counsel for Ebanks assured the court the guilty plea was freely and

voluntarily made (2 RR 9).


      During the plea proceeding, Ebanks testified A.J. was injured when he

struck him on the right side of the face with an open hand (3 RR 65). He struck


                                          -8-
A.J. because the child refused to take a nap (3 RR 65). After being struck on the

head, A.J. fell and struck his head on the box springs of a bed (3 RR 66). After

hitting his head on the box springs, A.J. began to shake (3 RR 66). Ebanks denied

intending to hurt A.J. (3 RR 66, 68). He denied hitting the child hard enough to

break his ear or fracture the child’s skull (3 RR 85-86). He was remorseful about

the incident (3 RR 68).


      Counsel’s advice can provide assistance so ineffective that it renders a guilty

plea involuntary. Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann v.

Richardson, 397 U.S. 759, 771 (1970); “voluntariness of the plea depends on

whether counsel’s advice ‘was within the range of competence demanded of

attorneys in criminal cases.’ ”). A guilty plea is not knowing or voluntary if made

as a result of ineffective assistance of counsel. Ex parte Burns, 601 S.W.2d 370,

372 (Tex. Crim. App. 1980) (finding guilty plea involuntary when counsel

encouraged defendant to plead guilty in order to avoid nonexistent punishment).

A defendant’s decision to plead guilty when based upon erroneous advice of

counsel is not done voluntarily and knowingly. Ex parte Battle, 817 S.W.2d 81,

83 (Tex. Crim. App. 1991). See also Ex parte Harrington, 310 S.W.3d 452, 459

(Tex. Crim. App. 2010) (“When counsel’s representation falls below this

[Strickland v. Washington, 466 U.S. 668 (1984)] standard, it renders any resulting

guilty plea involuntary.”). See Ex parte Moussazadeh, 361 S.W.3d 684, 692 (Tex.
                                        -9-
Crim. App. 2012) (finding plea of guilty involuntary based on counsel’s erroneous

advice concerning parole eligibility).


      Counsel has the duty to advise a defendant how the law applies to the facts

of the case to ensure that a guilty plea is both knowing and voluntary. Ex parte

Morse, 591 S.W.2d 904, 905 (Tex. Crim. App. 1980). A failure to advise a

defendant how the facts of his case related to the charged offense constitutes

deficient performance and prevents a guilty plea from being knowingly and

voluntarily entered. Ex parte Gallegos, 511 S.W.2d 510, 513 (Tex. Crim. App.

1974).


      Ebanks now complains his plea of guilty was involuntary because he was

denied the effective assistance of counsel. Ebanks asserted his innocence of the

charged offense during the guilty plea proceeding when he repeatedly claimed he

did not intend to injure the child. Intent to cause the result of serious bodily injury

is the essence of the offense charged against Ebanks. A plea of guilty while

testifying to innocence cannot be free, voluntary, and intelligently entered. Upon

the protestations of innocence during the plea proceeding, counsel should have

moved to withdraw Ebanks’ previously entered plea of guilty because it was not

freely and voluntarily entered. Allowing the plea proceedings to continue despite

Ebanks’ assertion of no intent to injure the child was an act of deficient


                                         - 10 -
performance by trial counsel. Counsel failed to properly advise Ebanks on the

elements of the offense and Ebanks was in no position to enter a plea of guilty to

an offense he did not understand and denied committing. Prejudice is present

because had Ebanks understood the elements of the offense in relation to his

conduct, he would not have entered a plea of guilty and would have insisted upon a

jury trial on a plea of not guilty. This Court should reverse the judgment of

conviction due Ebanks’ involuntary guilty plea.


                                      Prayer


      Ebanks prays this Court will reverse the judgment of conviction and remand

for a new trial or enter any other relief from the judgment as appropriate under the

facts and the law.


                                                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
                                                Tyler David Ebanks

                                       - 11 -
                            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 brief
contains 2.353 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


      I, Richard E. Wetzel, counsel for appellant, do hereby certify that a true and
correct copy of the foregoing document was emailed to counsel for the State, Bob
Odom, Assistant District Attorney, through the efile electronic service feature of
this Court’s efile system at bob.odom@co.bell.tx.us on this the 14th day of July,
2015.

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




                                       - 12 -
