               PD-0268-18                                          PD-0268-18
                                                  COURT OF CRIMINAL APPEALS
                                                                 AUSTIN, TEXAS
                                                    Transmitted 3/9/2018 3:39 PM
                                                      Accepted 3/9/2018 4:14 PM
                                                          DEANA WILLIAMSON
                   PD NO. ________                                        CLERK
      IN THE TEXAS COURT OF CRIMINAL APPEALS
                                                       FILED
                                              COURT OF CRIMINAL APPEALS
                     AT AUSTIN                       3/9/2018
                                               DEANA WILLIAMSON, CLERK
………………………………………………………………………………………
                 NO. 14-16-00843-CR
          IN THE COURT OF APPEALS FOR THE
           FOURTEENTH DISTRICT OF TEXAS
                    AT HOUSTON
………………………………………………………………………………………
              TRIAL COURT NO. 1462169
            IN THE 248TH DISTRICT COURT
             OF HARRIS COUNTY, TEXAS
………………………………………………………………………………………
       DENNIS ANTHONY WILLIAMS, APPELLANT
                         V.
           THE STATE OF TEXAS, APPELLEE
………………………………………………………………………………………
   APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
………………………………………………………………………………………

                              NICOLE DEBORDE
                              Attorney for Appellant
                              TBA No. 00787344
                              712 Main St, Suite 2400
                              Houston, Texas 77002
                              Telephone: (713) 526-6300
                              Fax: (713) 228-0034
                              Email: Nicole@debordelawfirm.com




                          i
                   IDENTITY OF PARTIES AND COUNSEL

      Pursuant to TEX. R. APP. R. 68.4(a), the following is a list of all parties to

the trial court’s judgment as well as the names and addresses of trial and appellate

counsel.

Appellant:                      Dennis Anthony Williams
                                TDCJ Number 02095920
                                Huntsville Unit
                                815 12th Street
                                Huntsville, TX 77348

Presiding Judge:                Hon. Regan Clark
                                248th Judicial District Court
                                Houston, TX 77002

Trial Prosecutor                Mr. Patrick Stayton
                                Mrs. Katie Warren
                                Assistant District Attorneys
                                Harris County District Attorney’s Office
                                1201 Franklin, Suite 600
                                Houston, Texas 77002

Defense Counsel:                Mr. George Tennant
                                Attorney at Law
                                723 Main Street
                                Houston, Texas 77002

State’s Appellate Counsel:      Travis Dunlap
                                Harris County District Attorney
                                1201 Franklin
                                Houston, Texas 77002

Appellant’s Counsel:            Nicole DeBorde
                                Bires, Schaffer and DeBorde
                                712 Main St., Suite 2400
                                Houston, Texas 77002


                                         ii
            STATEMENT REGARDING ORAL ARGUMENT
     Pursuant to TEX. R. APP. PROC. 68.4(c), appellant does not request oral

argument.




                                    iii
                                          TABLE OF CONTENTS

Identity Of Parties And Counsel ............................................................................... ii 

Statement Regarding Oral Argument ...................................................................... iii 
Index Of Authorities ..................................................................................................v 
Statement Of The Case ..............................................................................................1 

Statement Of Procedural History ...............................................................................5 

Question For Review Number One: ..........................................................................6 
                   If A Lawyer In Advance Of A Punishment Hearing Fails
                   To Contact Any Witnesses, Fails To Provide Any
                   Information To The Court And, Besides Making A
                   Obviously False Argument, Provides No Other Form Of
                   Advocacy,     Is   The      Deficient            Representation
                   “Presumptively Unreliable”?.................................................................6 
Argument....................................................................................................................6 

Prayer For Relief ........................................................................................................8 

Certificate Of Compliance .......................................................................................10 

Certificate Of Service...............................................................................................10 

Appendix ..................................................................................................................11 




                                                             iv
                                   INDEX OF AUTHORITIES

Cases 
   Florida v. Nixon,
    542 U.S. 175 (2004) ..........................................................................................7

   Head v. State,
    299 S.W.3d 414 (Tex.App.—Houston [14th Dist.] 2009, pet. ref’d) ...............8

   Hernandez v. State,
    726 S.W.2d 53 (Tex. Crim. App. 1986). .........................................................7

   Medina v. State,
    2017 WL 4410269 (Tex. Crim. App. 2017)..................................................8, 9

   Powell v. Alabama,
    287 U.S. 45 (1932) ...........................................................................................6

   State v. Frias,
     511 S.W.3d 797 (Tex.App—El Paso 2016, pet. ref’d) .....................................8

   Strickland v. Washington,
     446 U.S. 668 (1984) ......................................................................................5, 7

   United States v. Cronic,
    466 U.S. 648 (1984).........................................................................................7

Statutes 
   TEX. CONST. ART. I, §10 .................................................................................6
   TEX. R. APP. PROC. 66.3(c) ..............................................................................9
   TEX. R. APP. PROC. 68.4(c) ............................................................................ iii
   TEX. R. APP. PROC. 78.1(d ...............................................................................9
   TEX. R. APP. R. 68.4(a ...................................................................................... ii
   U.S. CONST. amends. VI and XIV.......................................................................6




                                                       v
TO THE COURT OF CRIMINAL APPEALS:

                          STATEMENT OF THE CASE

      Appellant was charged and ultimately convicted of penetrating his step-

daughter’s sexual organ with his finger. (C.R. 10). After setting his case for trial

and after wavering while a jury was in the hallway, Appellant agreed to plead

guilty to the court in exchange for a pre-sentence investigation with an open

punishment range capped at twenty-five years. (C.R. 221; R.R. Vol. 1 at 114-15).

Almost immediately after entering his plea, Appellant regretted his decision. He

told the PSI writer he was not guilty and wanted to withdraw his plea. (State Ex.

2). He also filed a pro se motion to withdraw his plea and remove his attorney,

George Tennant, from the case. (R.R. Vol. 1 at 154-5; C.R. 208-12).

      Tennant likewise moved to withdraw himself from the case just prior to

beginning Appellant’s punishment hearing, claiming it was “virtually impossible”

to continue to represent Appellant. (State Ex. 3 at 6). Tennant’s co-counsel, Dana

Bradberry, concurred telling the court, “. . .it’s in no one’s best interest for us to

continue on this case.” (State Ex. 3 at 6-7).

      During the same hearing, however, Appellant stated he no longer wished to

withdraw his plea and instead wanted to continue his punishment hearing with

Tennant and Bradberry as his attorneys. (State Ex. 3 at 10). As a result, the trial

court summarily denied both Appellant’s and Tennant’s motions to withdraw from


                                           1
the case as well as Appellant’s motion to withdraw his guilty plea. (State Ex. 3 at

11).

       Proceeding immediately into Appellant’s punishment hearing, neither side

presented any witnesses or offered any evidence besides the PSI report. (State Ex.

3 at 13). Tennant then requested and made a “brief argument.” (State Ex. 3 at 13).

In this argument Tennant suggested Appellant deserved a sentence where he could

work in the community, even though community supervision was not a part of the

punishment range. (State Ex. 3 at 15).          Further, Tennant strangely asserted

Appellant deserved a lenient sentence because, despite Appellant’s motion to

withdraw his guilty plea, despite Appellant’s claim of innocence in the PSI report,

and despite there being no indication in the record of an acceptance of

responsibility, Appellant had “owned up” and “taken ownership” of the crime.

(State Ex. 3 at 14). Further undermining any acceptance of responsibility was

Tennant’s additional argument that Appellant’s actions were really the result of the

child complainant who “manipulated” Appellant into “petting and foreplay.” (State

Ex. 3 at 14-16). After skeptical questioning from the court, Tennant explained

Appellant, a fifty year old man, “should have been warned about the potential

powder keg he was walking into by the (complainant’s) family” because Appellant

“wasn’t equipped to deal” with a 10-12 year old girl’s sexual advances. (State Ex.

3 at 16). The trial court responded flatly that it “doesn’t sound like. . . he’s taken


                                            2
any responsibility whatsoever for his actions.” (State Ex. 3 at 16). The trial court

then sentenced Appellant to the maximum sentence of 25 years and explained,

“what I read in this Presentence Investigation Report is a man that still has a very

defiant attitude, which belies the argument from counsel that he has some remorse

for what he did.” (State Ex. 3 at 20).

      Appellant timely gave notice of intent to appeal and filed a Motion for New

Trial. In Appellant’s hearing on the Motion for New Trial, several witnesses

testified to Appellant’s good character and claimed that, if they had only been

informed, they would have appeared to testify at Appellant’s punishment hearing.

(R.R. Vol. 1 at 11-91). These witnesses included Appellant’s sisters, his brother-

in-law, his ex-wife, and his former step-daughter.

      Tennant also testified at Appellant’s hearing on his Motion for New Trial

and acknowledged several fundamental failures. He acknowledged he failed to

contact any of Appellant’s potential punishment witnesses. (R.R. Vol. 1 at 109).

He acknowledged he did not attend, and had no explanation for not attending,

Appellant’s PSI interview in which Appellant denied committing the charged

offense. (R.R. Vol. 1 at 107). Tennant acknowledged not making any contribution

to the PSI report—other than, curiously, “the defendant’s mindset.” (R.R. Vol. 1 at

146, 152). The only information Tennant could claim credit for “preparing for the

court” was that Appellant was a productive member of society with no criminal


                                         3
history who was ready to take responsibility for his actions. (R.R. Vol. 1 at 107).

Tennant claimed to have “prepared” this information by raising it through closing

argument, though Tennant also agreed that Appellant himself had submitted all of

this same information directly to the PSI writer.     (R.R. Vol. 1 at 107, 110).

Tennant conceded that, at most, he had visited Appellant in jail one time between

Appellant’s plea and sentencing—though Tennant had no specific recollection of

visiting Appellant at all. (R.R. Vol. 1 at 109-110). And Tennant was unsure

whether he read the PSI report before arriving to court on the day of Appellant’s

punishment hearing. (R.R. Vol. 1 at 111).

      Tennant explained he had no legal strategy for most of these failures and did

not seem to understand his failures rendered his representation deficient. The only

semblance of a strategy Tennant could claim pertained to Tennant’s failure to

contact any witnesses on Appellant’s behalf.      On this point Tennant claimed

Appellant instructed him not to contact any family members because Appellant

believed they had “suffered enough.” (R.R. Vol. 1 at 110). This claim, however,

could not be verified through any documentation in Tennant’s trial file and

Tennant refused to produce his file—despite Appellant’s repeated requests. (R.R.

Vol. 1 at 92-102).

      The trial court, after hearing from all the witnesses in the hearing on

Appellant’s Motion for New Trial, seemed to assume Tennant’s representation was


                                        4
below the objective standard set forth in Strickland v. Washington. But the trial

court did not make a specific finding that Tennant was objectively deficient in his

performance.      (R.R. Vol. 1 at 188-89).          Rather, the court found Appellant’s

outcome was not affected by Tennant’s failures and that the court would still have

sentenced Appellant to 25 years in prison regardless of any purported

ineffectiveness. (R.R. Vol. 1 at 189).

                   STATEMENT OF PROCEDURAL HISTORY
       On March 24, 2015, a warrant for Aggravated Sexual Assault of Child was

issued for Appellant alleging he penetrated the complainant with his finger on

December 18, 2014. (C.R. 10). On August 15, 2016, Appellant entered a plea of

guilty with a sentencing cap of twenty-five years. (C.R. 189-90). On October 14,

2016, the trial court conducted a pre-sentence investigation hearing and sentenced

Appellant to twenty-five years in prison. (C.R. 221). Appellant timely filed a

motion for new trial on November 11, 2016. (C.R. 246). In the motion, Appellant

alleged he received ineffective assistance of counsel during both the

guilt/innocence phase and punishment phase of trial. (C.R. 246-70). The trial

court held a hearing and overruled this motion on December 21, 2016. (R.R. Vol.

11). In that hearing, Appellant opted not to pursue any allegations regarding his



1
 The reporter’s record contains two different volumes entitled “Volume 1”. One is the plea
colloquy, the other is the motion for new trial hearing. In this brief, “Volume 1” will refer
exclusively to the record of Appellant’s motion for new trial hearing held on December 21, 2016.

                                               5
trial counsel’s guilt/innocence ineffectiveness. (R.R. Vol. 1 at 8).         Instead,

Appellant sought to exclusively raise his trial counsel’s ineffectiveness during the

punishment phase of trial. (R.R. Vol. 1 at 8). The trial court denied Appellant’s

motion for new trial. (R.R. Vol. 1 at 190). Appellant gave timely notice of his

intent to appeal and the trial court’s certification of Appellant’s right of appeal

certifies Appellant has received the trial court’s permission to appeal even though

Appellant received a plea bargain. (C.R. 224, 226).

      On February 8, 2018, the Fourteenth Court of Appeals affirmed the trial

court’s sentence.    Appellant now timely brings this petition for discretionary

review.

                    QUESTION FOR REVIEW NUMBER ONE:

             If A Lawyer in Advance of a Punishment Hearing Fails
             to Contact Any Witnesses, Fails to Provide Any
             Information to the Court and, Besides Making a
             Obviously False Argument, Provides No Other Form of
             Advocacy,     is   the      Deficient Representation
             “Presumptively Unreliable”?

                                   ARGUMENT

      A criminal defendant has the right to the effective assistance of counsel. U.S.

CONST. amends. VI and XIV; TEX. CONST. art. I, §10; Powell v. Alabama, 287 U.S. 45

(1932). Counsel's assistance is ineffective if it falls below an objective standard of

reasonableness and prejudices the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The United

                                          6
States Supreme Court, in Strickland, provided a two-part test for ineffectiveness by

evaluating whether counsel’s performance: (I) was deficient         and (2) c au s e d

prejudice. 466 U.S. 668, 687 (1984).

     However, in Florida v. Nixon, the U.S. Supreme Court described a narrow

exception to Strickland's holding where the second prong requiring a showing of

prejudice can be presumed. 542 U.S. 175 (2004); (citing United States v. Cronic,

466 U.S. 648, 656-57 (1984); Strickland v. Washington, 466 U.S. 668, 686

(1984)).   "[I]f counsel entirely fails to subject the prosecution's case to

meaningful adversarial testing, then there has been a denial of Sixth

Amendment rights that makes the adversarial process itself presumptively

unreliable." Nixon, 466 U.S. at 659.

      The Fourteenth Court of Appeals held that Appellant’s trial counsel did not

“entirely fail to subject the prosecution’s case to any meaningful adversarial

testing.” Williams v. State, page 14 (citing State v. Frias, 511 S.W.3d 797, 810

(Tex. App—El Paso 2016, pet. ref’d); Head v. State, 299 S.W.3d 414, 443 (Tex.

App.—Houston [14th Dist]. 2009, pet. ref’d)). The Court of Appeals concluded

trial counsel’s negotiation for a sentencing cap and pursuit of a dismissal of an

additional charge, along with the fact that counsel “advocated for appellant in his

argument to the trial court and objected to a portion of the State’s argument” was

sufficient to show counsel had not “entirely failed.” Williams v. State, page 14.

                                          7
      Appellant would note, however, the Court of Appeals opinion omits mention

of Medina v. State, which reversed for a new punishment hearing and held the

failure “to present any punishment phase case” deprived the accused “of his right

to a fair trial.” 2017 WL 4410269 (Tex. Crim. App. 2017). Appellant’s case, like

Medina, involves a defense counsel who totally failed to “present any punishment

phase case.” Id. As a result, Medina, and not Frias or Head, should be controlling.

      This case is therefore appropriate for discretionary review because the Court

of Appeals has decided an important question of state and federal law in a way that

conflicts with the applicable decision of the Court of Criminal Appeals. TEX. R.

APP. PROC. 66.3(c).

                             PRAYER FOR RELIEF

      Wherefore, appellant prays that this Honorable Court grant appellant’s

petition for discretionary review; that this cause be set for submission to the Court

of Criminal Appeals; and that, after submission, this Court reverse the judgment of

the Court of Appeals, and remand the case to the trial court for a new punishment

hearing. TEX. R. APP. PROC. 78.1(d).




                                         8
    Respectfully submitted,


    /s/ Nicole DeBorde
    TBA No. 00787344
    712 Main St, Suite 2400
    Houston, Texas 77002
    Telephone: (713) 526-6300
    Fax: (713) 228-0034
    Email: Nicole@debordelawfirm.com

    Counsel for Appellant,
    DENNIS WILLIAMS




9
                      CERTIFICATE OF COMPLIANCE

      The word count of the countable portions of this computer-generated

document specified by Rule of Appellate Procedure 9.4(i), as shown by the

representation provided by the word-processing program that was used to create

the document, is 2420 words. This document complies with the typeface

requirements of rule 9.4(e), as it is printed in a conventional 14-point typeface with

footnotes in 12-point typeface.

                                       /s/ Nicole DeBorde
                                       NICOLE DEBORDE


                          CERTIFICATE OF SERVICE
      I hereby certify that a true copy of Appellant’s petition for discretionary

review was served via e-mail delivery through eFile.TXCourts.gov on March 9,

2018 to the following persons:

      Kim Ogg
      District Attorney
      Appellate Division
      Harris County District Attorney’s Office
      1201 Franklin
      Houston, Texas 77002

      State Prosecuting Attorney
      P.O. Box 12405
      Austin, Texas 78711

                                       /s/ Nicole DeBorde
                                       NICOLE DEBORDE


                                         10
       APPENDIX


Opinion of February 8, 2018.




            11
