                                                                       ACCEPTED
                                                                   06-15-00124-CR
                                                        SIXTH COURT OF APPEALS
                                                              TEXARKANA, TEXAS
                                                              12/3/2015 4:58:49 PM
                                                                  DEBBIE AUTREY
                                                                            CLERK




             CASE NO. 06-15-00124-CR
                                                  FILED IN
                                           6th COURT OF APPEALS
            IN THE COURT OF APPEALS          TEXARKANA, TEXAS
                                           12/4/2015 8:37:00 AM
            FOR THE SIXTH DISTRICT             DEBBIE AUTREY
                                                   Clerk

             AT TEXARKANA, TEXAS
__________________________________________________

               LARRY JOE JONES

                       VS.

                STATE OF TEXAS
__________________________________________________

         Appeal from the 85th District Court of
                Brazos County, Texas
             Cause No. 14-02769-CRF-85
_________________________________________________

               APPELLANT’S BRIEF
__________________________________________________

       ORAL ARGUMENT NOT REQUESTED


                       David W. Crawford
                       State Bar No. 24031601
                       P.O. Box 1510
                       Bryan, Texas 77806
                       Telephone (979) 575-9871
                       E-fax (512) 237-779
                       Email: dcrawford@crawfordcruz.com



                        i
                            NAMES OF ALL PARTIES

       The following is a complete list of all names and addresses of all parties to the
Trial Court‘s final judgment and the names and addresses of all trial counsel:

Appellant:                Larry Joe Jones

Appellate Counsel:        David W. Crawford
                          State Bar No. 24031601
                          P.O. Box 1510
                          Bryan, Texas 77806
                          Telephone: (979) 575-9871
                          E-fax: (512)237-7792

Trial Counsel:            Daniel Jones
                          State Bar No. 24065512
                          Gray, Granbury, and Jones
                          103 North Main Street
                          Bryan, Texas 77803
                          Telephone: (979)314-0112

Appellee:                 State of Texas

Counsel:                  Jarvis Parsons
                          Brazos County District Attorney
                          300 E. 26th Street, Ste. 310
                          Bryan, Texas 77803
                          Telephone: (979)361-4320

Trial Court:              The Honorable Kyle Hawthorne
                          85th District Court
                          300 E. 26th Street, Ste. 440
                          Bryan, Texas 77803
                          Telephone (979) 361-4270




                                           ii
                                           TABLE OF CONTENTS

Names of all Parties ................................................................................ i

List of Authorities ...................................................................................iv-v

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

Issues Presented ...................................................................................... 2

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

Summary of Argument ........................................................................... 4

Argument................................................................................................. 6

          I.        TRIAL    COUNSEL    PROVIDED     INEFFECTIVE
                    ASSISTANCE OF COUNSEL WHEN HE DEPRIVED THE
                    APPELLANT OF THE RIGHT TO TESTIFY ON HIS OWN
                    BEHALF

         II.      THE TRIAL COURT ERRED BY NOT GRANTING A
                  MISTRIAL WHEN A JUROR REVEALED MATERIAL
                  INFORMATION REGARDING HER RELATIONSHIP WITH
                  WITNESSES IN THE CASE AFTER BEGINNING
                  DELIBERATIONS



Conclusion and Relief Requested ........................................................... 16

Certificate of Service .............................................................................. 17

Certificate of Compliance ………………………………………………...18




                                                              iii
                                 LIST OF AUTHORITIES

TEXAS CASES

Franklin v. State, 12 S.W.3d 473(Tex.Crim.App. 2000) . . . . . . . . . . . . . . . . 12-13

Franklin v. State, 138 S.W.3d 351(Tex.Crim.App. 2004) . . . . . . . . . . . . . . . . . 12-13

Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . .11

Johnson v. State, 169 S.W.3d 223(Tex.Crim.App. 2005) . . . . . . . . . . . . . . . . . . 7

Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . .6

Mosley v. State, 983 S.W.2d 249(Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . 11

Salazar v. State, 562 S.W.2d 480 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . . . 14

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . 6-7

Uranga v. State, 330 S.W.3d 301 (Tex. Crim. App. 2010) . . . . . . . . . . . . . ... . . 11

Von January v. State, 576 S.W.2d 43 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . .13-14

SUPREME COURT CASES


Strickland v. Washington, 466 U.S. 668 (1984)………………………….. . 6-7



UNITED STATES CONSTITUTION



Sixth Amendment




                                                iv
TEXAS CONSTITUTION


Article I, Section 10




                        v
                         STATEMENT OF THE CASE

      Appellant was charged with the offense of Evading Arrest with a Vehicle by

indictment filed June 5, 2014. (Cl. R. 5). The trial of the merits was heard by the

jury beginning May 4, 2015. The jury rendered its verdict of Guilty as alleged in

the indictment on May 5, 2015. (R.R. III 95). The appellant did not enter an

election regarding sentencing, and by default was sentenced by the court, and the

appellant was sentenced to 75 years in the TDJ-ID on May 5, 2015. (R.R. IV 40).

This appeal follows.




                                        1
               ISSUES PRESENTED


I.    TRIAL   COUNSEL     PROVIDED   INEFFECTIVE
      ASSISTANCE OF COUNSEL WHEN HE DEPRIVED THE
      APPELLANT OF THE RIGHT TO TESTIFY ON HIS
      OWN BEHALF
II.   THE TRIAL COURT ERRED BY NOT GRANTING A
      MISTRIAL WHEN A JUROR REVEALED MATERIAL
      INFORMATION REGARDING HER RELATIONSHIP
      WITH WITNESSES IN THE CASE AFTER BEGINNING
      DELIBERATIONS




                      2
                           STATEMENT OF FACTS

      Appellant was involved in an incident that led to a charge of Evading Arrest

with a Vehicle on February 22, 2014. (Cl. R. 5). Appellant was taken into custody

in connection with that charge on April 21, 2014. (Cl. R. 73). Appellant was

formally charged by indictment for the arrested offense on June 5, 2014. (Cl. R.

5). On May 4, 2015, Appellant’s case was called to trial before a jury. The jury

rendered a verdict of Guilty as charged in the indictment. (R.R. III 95). The jury

further found that the Appellant had used a deadly weapon during the commission

of the offense. (R.R. III 95). The Appellant made no election regarding who

would sentence him prior to trial, and therefore the court rendered the sentence in

this case. (R.R. IV 8-9). The State provided notice to the defense that they would

seek the enhancement of the offense to Habitual based on two prior convictions on

April 29, 2015.     (Cl.R. 101-102).    The court found that the enhancement

allegations were true and the appellant was sentenced to a term of 75 years in the

TDCJ-ID on May 5, 2015. (Cl. R. 69-70). This appeal follows.




                                        3
                         SUMMARY OF THE ARGUMENT



      On the evening of February 22, 2014, the Appellant was driving a vehicle on

Texas Highway 6 in Brazos County. (R.R. III 17-18). During this time, DPS

Trooper Kurt Kelm observed the vehicle and did not believe that the vehicle's

headlights were on. (R.R. III 17-18). Trooper Kelm then attempted to initiate a

traffic stop on the vehicle. (R.R. III 23). The vehicle initially pulled over, and

slowed down on the shoulder of the highway. (R.R. III 23). However, before

coming to a full stop, the vehicle then accelerated, passing vehicles on the

shoulder, and continued driving at a high rate of speed on the highway. (R.R. III

23-25). The vehicle struck a pickup truck on the highway, and flipped and came to

a stop. (R.R. III 25). At the scene, the Appellant was not arrested but was taken to

the hospital due to injuries sustained in the accident (R.R. III 37). Appellant was

subsequently arrested for the offense of Evading Arrest with a Vehicle on April 21,

2014 (Cl. R. 11).

      During the trial, the Appellant informed his trial counsel that he wished to

testify on his own behalf. (R.R. III 60) A hearing outside the presence of the jury

was held at which the Appellant's trial counsel informed that court that his planned

defense of the case would be harmed by the testimony of the Appellant. (R.R. III

60-1) In addition, the Appellant was informed by his counsel that by testifying, the
                                        4
entirety of his criminal record would be made available for the jury to consider.

(R.R. III 60) After some time with both the trial counsel being quite insistent that

the Appellant should not testify, the Appellant eventually did not testify on his own

behalf. (R.R. III 63). Appellant clearly wished to testify on his own behalf, and

provide evidence regarding a defense to the charges against him, but was prevented

from doing so by the actions of his trial counsel.

      After all the evidence was presented and arguments were made, the jury then

retired to the jury room to deliberate. However, within a few minutes of the jury's

retiring, it was discovered that one of the jurors realized at that time that she was

the doctor of one of parties who had been in the other vehicle at the time of the

incident. (R.R. III 90) The juror stated that she may have even delivered the child

of both of the parties in the second vehicle. (R.R. III 91). The Appellant's trial

counsel moved for a mistrial at that point, and stated that he would have struck the

juror during voir dire had it been made known at the time of the connection

between the juror and the parties in the other vehicle, and objected to the juror's

continuing deliberations. (R.R. III 89-93) The trial court did not order a mistrial,

and overruled the Appellant's objection to the juror continuing with the

deliberations.   (R.R. III 93) The revelation of the juror's connection to the

witnesses to the case negated the Appellant's right to intelligently use his

challenges, violated his right to an impartial jury, and should have resulted in a
                                          5
mistrial, and the seating of a new jury to consider the case.




                      ARGUMENT AND AUTHORITIES


I.            TRIAL   COUNSEL    PROVIDED    INEFFECTIVE
              ASSISTANCE OF COUNSEL WHEN HE DEPRIVED THE
              APPELLANT OF THE RIGHT TO TESTIFY ON HIS
              OWN BEHALF

                          STANDARD OF REVIEW

      To prevail on a claim of ineffective assistance of counsel, the defendant

must show that (1) his counsel's performance was deficient and (2) a reasonable

probability exists that the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80

L. Ed. 2d 674 (1984). The first prong of Strickland requires the defendant to show

that counsel's performance fell below an objective standard of reasonableness.

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the

defendant must prove objectively, by a preponderance of the evidence, that his

counsel's representation fell below professional standards. Mitchell v. State, 68

S.W.3d 640, 642 (Tex. Crim. App. 2002).            The second prong requires the

defendant to show a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different. See Strickland, 466

U.S. at 694, 104 S. Ct. at 2068; see also 6Thompson, 9 S.W.3d at 812. In reviewing
counsel's performance, we look to the totality of the representation to determine the

effectiveness of counsel, indulging a strong presumption that the attorney's

performance falls within the wide range of reasonable professional assistance or

trial strategy. Thompson, 9 S.W.3d at 813. Furthermore, a claim of ineffective

assistance must be firmly supported in the record. Id.


                                   ARGUMENT

      The right to testify on one's own behalf is fundamental and personal to

the defendant. Johnson v. State, 169 S.W.3d 223, 232, 235 (Tex.Crim.App.

2005). It is the responsibility of defense counsel, and not the court, to inform

a defendant of his right to testify, including that the fact that the ultimate right

to testify belongs to him. Id. Because the right to testify is a fundamental

right, and not a structural one, it is not subject to a harm analysis. Id. at 236-7.

The harm can be assessed by looking at the anticipated testimony, the

evidence admitted at trial, and other factors. Id. at 237-8.

      In this case, the Appellant wished to testify in his own defense. (R.R. III

60). A hearing outside the presence of the jury was held in which trial counsel

discussed all of the negative factors regarding testifying. (R.R. III 60-61).

During this hearing, the trial counsel explained that the expected testimony of

the Appellant would not allow him to present his theory of reasonable doubt.

(R.R. III 60-61). The Appellant indicated
                                     7    that he did not understand what that
theory was. (R.R. III 60-61). At no point during this interchange was the

Appellant told that he had the ultimate right to testify, even if it went against

the advice of his counsel.

     Following the Appellant's decision to go ahead and testify, the State

orally requested a motion in limine to prevent testimony regarding a claim that

the DPS trooper involved in the case had unlawfully taken property belonging

to the Appellant while investigating the accident in this case. (R.R. III 61).

The court granted the motion, requiring the parties to approach the bench to

determine its relevance prior to testimony regarding that fact being presented

to the jury. (R.R. III 61-62). Following the court's ruling, the Appellant

ultimately decided not to testify, by saying "I guess so."        (R.R. III 63).

During argument, the trial counsel's defense appears to be that due to the

multiple medications found in the car after the accident that the Appellant did

not intentionally evade arrest.    (R.R. III 82-84).    As the jury found the

Appellant guilty, this defense was clearly not ultimately successful.

     Often, when no testimony is presented, the record is silent as to what that

testimony might have been. However, the record in this case provides insight

in two ways as to what the Appellant's testimony might have been in this case.

The first comes from the Appellant's statements on the record during the

hearing regarding his testifying on his own behalf.        (R.R III 62).     The
                                       8
Appellant testified about property being missing, speaking to Texas Rangers

regarding his case, and the two month lag between the accident and his arrest.

     The other insight is provided by the clerk's record. The Appellant filed a

pro se Motion for New Trial following his conviction, and within the motion

is the Appellant's version of the events that night that could have been

presented at trial had he testified. (Cl.R. 36). In the motion, the Appellant

states that he did not realize it was a police officer that was attempting to pull

him over, and that he drove away at a high speed because he was afraid that it

was a road rage incident. (Cl.R. 36).

     To show ineffectiveness of counsel, a defendant must show both that the

counsel's actions fell below professional standards and also that the outcome

would have been different but for the actions of the counsel. In this case, the

first prong is easily met on the issue of testifying. The trial counsel never

informed the Appellant on the record that he had the ultimate right to decide

whether or not to testify.     The trial counsel also did not explain to the

Appellant on the record the difference between a motion in limine and a ruling

that evidence and testimony would not be admissible. By not doing so in

either of these situations, he failed to meet the professional standards of

informing a defendant of his fundamental right to testify on his behalf if he so

desires.
                                        9
     The second prong, then, is that but for the actions of counsel there would

have been a different result. The trial counsel argued that there was no reason

why the Appellant would evade and that it made no sense for him to evade

arrest in his final argument. (R.R. III 84). By preventing the Appellant from

exercising his fundamental right to testify on his behalf, the trial counsel kept

the jury from having the opportunity to hear what that reason was. The

Appellant was deprived of the ability to provide a defense to the jury and to

provide explanation of his actions that led to the charges against him. Had the

Appellant been allowed to testify, a reasonable jury would have had evidence

to consider that would have allowed them to have rendered a verdict that the

Appellant did not intentionally evade arrest. The denial of this fundamental

right to the Appellant thus resulted in a different result than had he been

allowed to testify. For this reason, the case should be reversed and remanded

to the trial court for a new trial with effective counsel.




                                        10
II.           THE TRIAL COURT ERRED BY NOT GRANTING A
              MISTRIAL WHEN A JUROR REVEALED MATERIAL
              INFORMATION REGARDING HER RELATIONSHIP
              WITH WITNESSES IN THE CASE AFTER BEGINNING
              DELIBERATIONS

                         STANDARD OF REVIEW


      The standard of review of the denial of a motion for mistrial uses an abuse of

 discretion standard. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App.

 2004) (en banc). When evaluating the conduct of the trial court in denying the

 motion for a mistrial, the court should apply the three Mosley factors which

 balance: (1) the severity of the misconduct, (2) the measures adopted to cure the

 misconduct, and (3) the certainty of conviction absent the misconduct. Hawkins,

 135 S.W.3d at 75 (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.

 1998) (en banc) (op. on reh'g)).



                                    ARGUMENT

      Criminal defendants have the right to an impartial jury under both the

 Sixth Amendment and Article I, Section 10 of the Texas Constitution,

 Uranga v. State, 330 S.W.3d 301, 304 (Tex.Crim.App. 2010). During voir

 dire, if a venire member withholds material information, the defendant is

 unable to intelligently exercise his challenges and peremptory strikes and his
                                        11
ability to select an impartial jury is hindered. Franklin v. State, 12 S.W.3d

473, 477-78 (Tex.Crim.App. 2000).                 The good faith of a juror is largely

irrelevant when considering the materiality of information withheld. Id. at 478.

Juror misconduct is shown when the juror withheld information during voir dire

despite the complainant's due diligence. Franklin v. State, 138 S.W.3d 351, 355-

56 (Tex.Crim.App. 2004). Material information is that which has a tendency to

show a bias. Id. at 356.

     In Franklin, an aggravated sexual assault of a child case, a juror who did not

respond during voir dire about knowing the victim, recognized the victim when

the victim was called to testify. 12 S.W.3d at 475-76. After informing the trial

court that she knew the victim because she had a daughter in the same girl scout

troop as the victim and was the troop's assistant leader, the trial court asked

the juror if she could listen to the evidence in the case and base her judgment

solely on the evidence presented at trial rather than her prior relationship with

the victim. Id. at 476. The juror indicated that she could. Id. The defendant then

moved for a mistrial, which was denied. Id.

     The       defendant   alternatively    asked     for   additional   questioning   of

the juror about the nature of her relationship with the victim, the duration of that

relationship, whether she could put aside that relationship, and whether that

relationship     would     tend    to      give     more    or    less   credibility   to
                                            12
the victim's testimony. Id. The trial court denied the defendant's request. Id. The

Court of Criminal Appeals found the trial court erred in denying the defendant the

opportunity to ask questions of the juror and remanded the case for a harm

analysis. Id. at 479. On review of the appellate court's opinion on remand, the

Court affirmed the court of appeals' conclusion that reversible error occurred

because the trial court prevented proper development of the record regarding

whether the relationship between the juror and the victim had a tendency to show

bias, and that the record did not establish error to be harmless beyond a reasonable

doubt. Franklin v. State, 138 S.W.3d 351, 354, 355-56 (Tex.Crim.App. 2004).

     Another example of juror misconduct by not providing material information

is Von January v. State, 576 S.W.2d 43 (Tex. Crim. App. 1978). In that case, the

Court of Criminal Appeals considered whether the trial court erred by failing to

grant defendant a new trial when it later became apparent that a juror knew the

family of the deceased victim. Juror Dunn did not respond when defense counsel

asked if the venire knew the victim's family. This Court stated that "when a

partial, biased, or prejudiced juror is selected without fault or lack of diligence on

the part of defense counsel, who has acted in good faith upon the answers given to

him on voir dire not knowing them to be inaccurate, good ground exists for a new

trial." Id. at 45. If Juror Dunn had answered the questions correctly, the defendant

could have pursued further questioning and, in all probability, Juror Dunn would
                                         13
not have served on the jury. Id.

     Salazar v. State, 562 S.W.2d 480 (Tex. Crim. App. 1978), also provides an

example of material information being withheld from a defendant during voir

dire. In that case, the defendant was charged with exposing his genitals to a young

girl. Id. at 481. During voir dire, the defendant asked whether any of the jurors

had been a witness in or involved in a criminal proceeding. Juror Wooley did not

respond to this question. Id. After the State rested its case, Juror Wooley told the

trial judge that he had been an eyewitness to a sexual assault on his own daughter,

and he had testified in that prosecution. Id. at 482. The defendant moved for a

mistrial stating that had he known the truth, he would have struck Juror Wooley

either by challenge for cause or peremptorily. Id. The trial court denied the motion

because Juror Wooley stated he could be fair and impartial regardless of his

previous experiences. Id.

     The Court of Criminal Appeals held that the trial court erred in finding Juror

Wooley fair and impartial. "That a juror will state that the fact that he withheld

information will not affect his verdict is not dispositive of the issue where the

information is material and therefore likely to affect the juror's verdict." Id.

Because the defendant acted in good faith on the answers given to him during voir

dire, the Court concluded he was deprived of his right to peremptorily challenge

Juror Wooley. Id. at 483.
                                        14
     In this case, Juror Appleton did not realize until final arguments or

immediately thereafter that one of the occupants of the vehicle struck during the

accident was patient of hers. (RR. III 90-1). Juror Appleton did not recall

whether or not she was present at the birth of the child of both of the occupants of

the vehicle. (R.R. III 92). The court allowed for a brief questioning of Juror

Appleton and the juror testified that her prior relationship would not affect her

deliberations in this case. (R.R. III 93). Prior to this questioning, the Appellant

requested a mistrial based on the information. (R.R. III 91). Following the

questioning of the juror, the Appellant objected to her being allowed to continue

deliberating. (R.R. III 93). At both times, the Appellant stated that had he known

the information about the prior relationship, he would not have let her remain on

the jury.

     While Juror Appleton testified that the relationship would not affect her

deliberations, her prior relationship with the witnesses was material information

that was withheld from the Appellant and did not allow him to intelligently

exercise his challenges in this case. The fact that her testimony would not support

a challenge for cause is irrelevant. The Appellant stated twice on the record that

had he known about this during voir dire that Juror Appleton would not have been

on the jury. The fact that the information was not withheld due to bad faith does

not affect the materiality of the information. The Appellant had a right to know
                                        15
that information during voir dire, and act accordingly.

     The trial court abused its discretion in not granting the mistrial to the

Appellant when requested, and not excusing the juror from deliberations when

asked. Juror Appleton would not have served on the jury had the relationship

been known during voir dire, and the Appellant was deprived of his right to utilize

his challenges because of the withholding of that information, whether in good

faith or not. The case should be remanded to the trial court and a new trial

granted, giving the Appellant the full rights of a trial by impartial jury.


                        CONCLUSION AND PRAYER

      Wherefore, Appellant prays that the Court of Appeals will grant

leave to file the foregoing brief on appeal, and that the court will

review the record of trial and grant any relief to which Appellant may

be entitled.

                                           RESPECTFULLY SUBMITTED,


                                           /s/ David W. Crawford
                                           David W. Crawford
                                           State Bar No. 24031601
                                           P.O. Box 1510
                                           Bryan, Texas 77806
                                           Telephone (979) 575-9871
                                           E-fax (512) 237-779
                                           Email: dcrawford@crawfordcruz.com
                                           Attorney for Appellant
                                          16
                         CERTIFICATE OF SERVICE

      As Attorney of Record for Appellant, I do hereby Certify by my signature

above that a true and correct copy of the above and foregoing document was this

date provided to the Attorney for the State, Jarvis Parsons, Brazos County District

Attorney, 300 E. 26th Street, Ste. 310, Bryan, Texas 77803, and to the Appellant,

Larry Joe Jones, Polunsky Unit, 3872 FM 350 South, Livingston, Texas 77351,

Via Certified Mail, Return Receipt Requested.



   Date:    December 3, 2015




                                        17
                          Certificate of Compliance

      As Attorney of Record for Appellant, I do hereby Certify by my signature

that this brief contains 3,202 words, in accordance with Tex. Rules of Appellate

Procedure 9.4(i).

   Date:    December 3, 2015



                                        /s/ David W. Crawford
                                        David W. Crawford
                                        State Bar No. 24031601
                                        P.O. Box 1510
                                        Bryan, Texas 77806
                                        Telephone (979) 575-9871
                                        E-fax (512) 237-779
                                        Email: dcrawford@davidwcrawford.com
                                        Attorney for Appellant




                                       18
