                                                                                  ACCEPTED
                                                                              03-14-00559-CR
                                                                                      4993457
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                         4/22/2015 4:04:26 PM
                                                                            JEFFREY D. KYLE
                                                                                       CLERK
                       No. 03-14-00559-CR
                                                FILED IN
______________________________________________________
                                          3rd COURT OF APPEALS
                                                      AUSTIN, TEXAS
                                                   4/22/2015 4:04:26 PM
                    In The Court of Appeals          JEFFREY D. KYLE
           For   The Third Court of Appeals District       Clerk
                     Austin, Texas
______________________________________________________

                   Zane Lynn Barton,
                       Appellant,
                           v.
                   The State of Texas,
                        Appellee.
______________________________________________________

  ON APPEAL FROM THE 274th DISTRICT COURT, HAYS
  COUNTY, TEXAS TRIAL COURT CAUSE NO. CR-13-0614
______________________________________________________

               BRIEF FOR APPELLANT
           ORAL ARGUMENT REQUESTED
______________________________________________________
                       Amanda Erwin
                  State Bar No. 24042936
             109 East Hopkins Street, Suite 200
                 San Marcos, Texas 78666
                Telephone: (512) 938-1800
                Telecopier: (512) 938-1804
              amanda@theerwinlawfirm.com
               Counsel for Zane Lynn Barton
                     Identity of Parties and Counsel

Appellant:

Zane Lynn Barton

Appellate Counsel:

Amanda Erwin
The Erwin Law Firm, L.L.P.
109 East Hopkins Street, Suite 200
San Marcos, Texas 78666
Telephone: (512) 938-1800
Telecopier: (512) 938-1804

Trial Counsel:

Jesus “Gabriel” Hernandez
507th West 10th Street
Austin, Texas 78701
Telephone: (512) 964-9424

Tracy Reyes Franklin
Behr law Firm
1920 Corporate Drive, Suite 108A
San Marcos, Texas 786666
Telephone: (512) 353-5555

Appellee:

The State of Texas

Appellate Counsel:

Laura Garcia and Brian Erskine
Hays County District Attorney’s Office
712 Stagecoach Trail, Suite 2057
San Marcos, Texas 78666
Telephone: (512) 393-7600

	                                   ii	  
Trial Counsel:

Laura Garcia and Brian Erskine
Hays County District Attorney’s Office
712 Stagecoach Trail, Suite 2057
San Marcos, Texas 78666
Telephone: (512) 393-7600


Trial Judge:

Hon. Gary L. Steel




	                                  iii	  
                     Table of Contents

                                                Page

Identity of Parties and Counsel…………………..…………………..ii

Table of Contents………………………………...…………………..iv

Index of Authorities…………………………………………………..v

Statement of Case……………………………………………………..1

Statement of Issues ……………………………….…………………..1

Oral Argument Requested………………………...…………………..2

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

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

Pint of Error One……………………………………………………..11

Standard of Review ……………………………….………………….11

Acts of Deficient Performance…………………...…………………..15

Prejudice……………………………………………………………...20

Prayer……………………………………………..…………………..23

Certificate of Service……………………………..…………………..25

Certificate of Word Limit Compliance………………...……………..26




	                          iv	  
                          Index of Authorities

Cases                                                          Page

Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App. 2005)……………20

Bell v. Cone, 535 U.S. 685 (2000)…………………………………...13

Bird v. State, 527 S.W.2d 891, 893 (Tex.Crim.App. 1975)………….20

Burnett v. State, 88 S.W.3d 633 (Tex.Crim.App. 2002)………..........22

Collier v. Turpin, 155 F.3d 1277 (11th Cir. 1998)…………………....13

Ex parte Argent, 393 S.W.3d 781 (Tex.Crim.App. 2013)…………...18

Ex parte Martinez, 195 S.W. 3d 713 (Tex.Crim.App. 2006)………..15

Hardwick v. Crosby, 320 F.3d 1127 (11th Cir. 2003)………………..14

Jackson v. State, 766 S.W.2d 504 (Tex.Crim.App. 1985)…………...15

Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984)………………...14

McMann v. Richardson, 397 U.S. 759 (1970)……………………….12

Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999)…………………......14

O’Neal v. McAninch, 513 U.S. 432 (1995).………………………….22

Profitt v. Waldron, 831 F.2d 124 (5th Cir. 1987)…………………….14

Strickland v. Washington, 466 U.S. 668 (1984)………………..........12

United States v. Dominguez Benitez, 542 U.S. 74 (2004)……….......13

Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000)………….......14

Wiggins v. Smith, 539 U.S. 510 (2003)………………………………13


	                                 v	  
Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986)……….12


Statutes

TEX. R. APP. 21.4…………………………………………………..18




	                               vi	  
                            Statement of the Case

       This is an appeal from a criminal proceeding. The Appellant, Zane

Barton, is currently incarcerated. On August 7, 2013, a Hays County grand

jury returned an indictment charging Mr. Barton with Aggravated Assault

Serious Bodily Injury, enhanced to a first-degree felony for using a deadly

weapon during the commission of the assault, and for committing family

violence. (1 CR 12). On August 19, 2014, after being duly selected, a jury

was sworn. (3 RR 26). Mr. Barton entered a plea of not guilty to the

offense as alleged in the indictment. (3 RR 32). The jury subsequently

found Mr. Barton guilty of the offense as alleged in the indictment. (1 CR

88). The jury assessed punishment at life in the Institutional Division of the

Texas Department of Criminal Justice, and further assessed a ten thousand

(10,000.00) dollar fine. (1 CR 101). Mr. Barton was sentenced in opened

court on August 21, 2014.       (1 CR 102).      The trial court certified Mr.

Barton’s right to appeal.    (1 CR 104).      The Appellant’s notice of appeal

was timely filed. (1 CR 106).

                            Statement of the Issues

Point of Error One:

      The Appellant was denied the effective assistance of counsel as a
result of the Appellant’s trial counsel’s multiple acts of deficient
performance.

	                                    1	  
                           Oral Argument Requested

        The Appellant respectfully request that oral argument be granted in this

case.

                               Statement of Facts

        On August 19, 2014, after being duly selected, a jury was sworn. (3

RR 26). Mr. Barton entered a plea of not guilty to the offense as alleged in

the indictment. (3 RR 32).        The State made an opening statement to the

jury, as did the Appellant’s trial counsel. (3 RR 32-36).

        The State called Matthew Daenzer, a police officer with the San

Marcos Police Department, as its first witness. (3 RR 37-38). Officer

Daenzer testified that on April 23, 2013, he was dispatched to the Central

Texas Medical Center for a possible robbery. (3 RR 39-41). While at the

Hospital, Officer Daenzer spoke with the alleged victim in the case, Stefanie

Hunt.      (3 RR 20).    Officer Daenzer testified that he observed multiple

bruises on Ms. Hunt’s body, cuts on Ms. Hunt’s cheeks, and a large

laceration across Ms. Hunt’s throat.            (3 RR 42).   The State admitted

photographs that Officer Daenzer took of Ms. Hunt’s injuries. (3 RR 42-43).

Officer Daenzer further testified that Ms. Hunt relayed to him that she

received the injuries from a black male mugging her. (3 RR 53).

        The State then called Rich Mizanin, a patrol sergeant with the San

	                                      2	  
Marcos Police Department, who was the lead detective on the case against

Mr. Barton. (3 RR 36-37). Sergeant Mizanin testified that detectives with

the Hays County Sheriff’s office conducted an investigation at the Wal-Mart

where Ms. Hunt claimed she was attacked. (3 RR 80-81). While conducting

the investigation, the detectives were approached by Mr. Barton, who stated

that his wife was missing. (3 RR 80-81). Mr. Barton was transported to the

San Marcos Police Department so he could be interviewed. (3 RR 83).

Detective Mizanin testified that during the interview, Mr. Barton was

extremely fidgety and uncomfortable, and that he was mumbling things to

himself while he was alone. (3 RR 85). Detective Mizanin further stated

that Mr. Barton asked if he was going to be arrested, and that when an

officer who walked by with a ticket book, Mr. Barton questioned him, “is

that for me?” (3 RR 85).      Mr. Barton relayed to officers that he was

working construction from 9:30 in the evening to 5:30 in the morning the

evening in question. (3 RR 67). Mr. Barton further relayed that he and Ms.

Hunt had been living under a bridge in San Marcos, and described the area.

(3 RR 69).

       Sergeant Mizanin went to Brackenridge Hospital, and met with Ms.

Hunt, who told Sergeant Mizanin that a black male assaulted her. (3 RR 76).

Sergeant Mizanin testified that it appeared to him that the word “ZANE” had



	                                  3	  
been cut into the Ms. Hunt’s skin on her back and leg. (3 RR 79).

       Sergeant Mizanin spoke with a black male, who was staying at a

Budget Inn in New Braunfels, Texas, and eliminated him as a suspect in the

case. (3 RR 83-84). Next, Sergeant Mizanin reviewed all of the Wal-Mart

surveillance tapes, and was unable to find any footage showing Ms. Hunt

being assaulted. (3 RR 85-86).

       Approximately a week later, Sergeant Mizanin received a telephone

message from Mr. Barton, questioning what was going on with the case, as

well as a telephone message from Ms. Hunt’s father, Keith Hackenburg. (3

RR 88-89).      Sergeant Mizanin made contact with Mr. Hackenberg, who

advised that Ms. Hunt wanted to tell law enforcement the truth about what

had happened to her. (3 RR 89). Ms. Hunt provided a written statement, as

well as an oral statement over the telephone, describing Mr. Barton as the

offender. (3 RR 89).

       After speaking with Ms. Hunt, Sergeant Mizanin went out to the scene

where Ms. Hunt described the assault to have occurred, and took

photographs. (3 RR 90-100).      Sergeant Mizanin attempted to make contact

with the man who found Ms. Hunt on the side of the road and took her to the

Central Texas Medical Center, but was unable to locate the subject. (3 RR

104-105).



	                                    4	  
       The State then called Keith Hackenburg, Ms. Hunt’s Father, as a

witness. (3 RR 129). Mr. Hackenberg testified that he and his wife went to

pick Ms. Hunt up from the Hospital in Austin and brought Ms. Hunt back to

their home in Hockley, Texas. (3 RR 130-131). Mr. Hackenburg testified

that several days after bringing his daughter home, she opened up and told

him that Mr. Barton assaulted her. (3 RR 133-134).

       The State then called Ms. Stefanie Hunt, the alleged victim in the case.

(3 RR 143). Ms. Hunt testified that she and Mr. Barton first dated back in

high school. (3 RR 143). Ms. Hunt testified that she reconnected with Mr.

Barton on Facebook sometime in 2012.           (3 RR 144).     Sometime after

reconnecting, Ms. Hunt left her home in Hockley, Texas with Mr. Barton to

go to Llano, Texas. (3 RR 146). The two used Ms. Hunt’s parent’s truck to

travel, which eventually ran out of gas and was abandoned by them in

Austin, Texas. (3 RR 146). The two made their way to New Braunfels,

Texas on foot, staying under bridges or anywhere they could find. (3 RR

147). At this time neither Ms. Hunt nor Mr. Barton were employed. (3 RR

147).

       Ms. Hunt and Mr. Barton eventually ended up in San Marcos, Texas,

after a police officer in New Braunfels dropped them off in the city limits.

(3 RR 148). During their time in San Marcos, the two lived under a bridge



	                                     5	  
with big white rocks. (3 RR 150). Ms. Hunt testified that her injuries were

sustained form Mr. Barton assaulting her over a period of time. (3 RR 151).

       The alleged assault began after the two went to eat pizza at a Little

Caesars, and Mr. Barton accused Ms. Hunt of looking at someone while

inside of the restaurant. (3 RR 151-152). Mr. Barton first threw rocks at

Ms. Hunt’s head, and then told Ms. Hunt to stand with her hands on the wall

while Mr. Barton hit Ms. Hunt on her back and legs with a belt. (3 RR 153).

Mr. Barton then hit Ms. Hunt with rocks again. (3 RR 155). Ms. Hunt

managed to run off, and a police officer stopped on the side of the road, but

instead of going with the police officer, Ms. Hunt went back to Mr. Barton.

(3 RR 155). Mr. Barton then hit Ms. Hunt with is belt buckle all over Ms.

Hunt’s body, including Ms. Hunt’s face and eyes. (3 RR 156, 159). Ms.

Hunt sustained a gash to the top of her head from Mr. Barton throwing a

rock at Ms. Hunt’s head. (3 RR 158-159). Mr. Barton cut Ms. Hunt’s hand

with a box cutter, and told her that, “this is what it’s going to feel like.”

(3 RR 161). Mr. Barton then cut X marks on Ms. Hunt’s cheeks with a box

cutter, and stated, “do you think anybody is going to think you’re pretty

now, do you think anybody is going to want you?” (3 RR 163). Mr. Barton

then instructed Ms. Hunt to get on her hands and knees, and Mr. Barton cut

Ms. Hunt’s neck. (3 RR 164). Mr. Barton handed Ms. Hunt his sweater to



	                                    6	  
wrap around her neck so she wouldn’t lose too much blood. (3 RR 165).

       Ms. Hunt then went to sleep and woke up the next morning. (3 RR

166). Mr. Barton asked Ms. Hunt if she needed to go the hospital, and she

responded yes. (3 RR 168). Mr. Barton was crying, because he couldn’t go

to the hospital with Ms. Hunt. (3 RR 168). Ms. Hunt told Mr. Barton that

she would make something up about how she sustained her injuries,

specifically, that a black man by the Wal-Mart mugged her. (3 RR 169).

       Ms. Hunt started walking down the road, and a man stopped in his

vehicle and drove Ms. Hunt to the hospital. (3 RR 171). While at the

hospital, Ms. Hunt allegedly told officers a fabricated story of how she

sustained her injuries. (3 RR 171). Ms. Hunt’s family came and picked her

up and brought her back to their home in Hockley, Texas. (3 RR 173).

Eventually, Ms. Hunt told her family that Mr. Barton had assaulted her. (3

RR 174). Ms. Hunt testified that she still has scars on her hand, her face,

and her neck from the assault. (3 RR 175-176).

       On cross examination, Ms. Hunt testified that during the time she

reconnected with Mr. Barton on Facebook that she was still married, but that

her husband was in prison. (3 RR 179). After reconnecting, Ms. Hunt went

to visit Mr. Barton in Whitesboro, Texas. (3 RR 182). Mr. Barton then

came to Hockley, and met with Ms. Hunt’s parents to get permission for the



	                                   7	  
two to leave together. (3 RR 183). Ms. Hunt’s husband was upset that Mr.

Barton was with his wife in Hockley. (3 RR 185).

       Ms. Hunt testified that Mr. Barton and her self used drugs while they

were staying in Llano, Texas. (3 RR 192). Ms. Hunt testified that she and

Mr. Barton also drank together. (3 RR 194). Ms. Hunt further testified that

she and Mr. Barton took meth together in a hotel in New Braunfels, Texas,

with two other people. (3 RR 194).

       Ms. Hunt agreed that at some point during the assault she ran away and

made contact with an officer, but went back to Mr. Barton instead of getting

help. (3 RR 203-204).

       The State then called Laurie Townsend, a nurse at the Central Texas

Medical Center. (3 RR 208-209). Ms. Townsend testified that on April 23,

2013, Ms. Hunt was her patient. (3 RR 210). Ms. Townsend testified that

she considered Ms. Hunt’s injuries to be very dangerous. (3 RR 214). Ms.

Townsend further testified that the injury on Ms. Hunt’s neck could create a

substantial risk of death for Ms. Hunt, as well as disfigurement. (3 RR 214,

215).    On cross-examination, Ms. Townsend testified that Ms. Hunt listed

the Appellant, Zane Barton, as her spouse and emergency contact. (3 RR

231).

       The State then called Dr. Nicholas Nunez, an emergency medicine



	                                     8	  
physician at The University Medical Center at Brackenridge. (4 RR 8). On

April 23, 2013, Ms. Hunt was Dr. Nunez’s patient. (4 RR 9-10). Dr. Nunez

testified that Ms. Hunt’s laceration on her neck created a substantial risk of

causing death. (4 RR 12). Dr. Nunez further testified that a tool of some

sort could only inflict Ms. Hunt’s laceration on her neck. (4 RR 17).

       The State and the Appellant’s trial counsel both rested their cases, and

the State and the Defense then both closed their cases. (4 RR 31). The jury

charge was read aloud in open court, and the State and Defense made

closing arguments. (4 RR 34-68). The jury found the Appellant guilty as

charged. (4 RR 70).

       The punishment phase commenced, and Mr. Barton pled true to the

enhancement paragraph in front of the jury, which then enhanced the

punishment range in the case to 15 to 99 years. (4 RR 74). The State made

an opening statement. (4 RR 74-76).

       The State then called Ms. Hunt, the alleged victim. (4 RR 77). Ms.

Hunt detailed to the jury the first time Mr. Barton hit her, which was when

they were dating in high school. (4 RR 79). Ms. Hunt dropped out of high

school and Mr. Barton and her moved out of Hockley, Texas. (4 RR 81).

During this time period the two were living in Ms. Hunt’s vehicle. (4 RR

81). Ms. Hunt testified that Mr. Barton would burn Ms. Hunt’s arms with



	                                     9	  
cigarettes and hit Ms. Hunt’s knees with five or ten pound barbells. (4 RR

82). While Mr. Barton was at work, Mr. Barton made Ms. Hunt stay inside

of her vehicle’s trunk. (4 RR 83). At some point, Mr. Barton got arrested,

and Ms. Hunt went back to live with her family in Hockley, Texas. (4 RR

85).

       Ms. Hunt then reconnected with Mr. Barton many years later through

Facebook. (4 RR 86). Mr. Barton began getting physical with Ms. Hunt

again,    (4 RR 87).    Ms. Hunt testified that at some point, Mr. Barton

allegedly talked about killing someone to get his or her vehicle. (4 RR 99).

       The State then called Mr. Hackenberg, Ms. Hunt’s father. (4 RR 101).

       The State rested, and the Defense announced to the jury and the trial

court that Mr. Barton was going to testify, but questioned the trial court if

they should proceed now or break for the day. (4 RR 113). The trial court

instructed the jury that they would break for the day and resume the

punishment hearing in the morning. (4 RR 113-114).        The next morning,

the Defense stated that Mr. Barton was no longer going to testify to the jury,

and rested its case. (5 RR 4, 9).

       The trial court read the charge of the court regarding punishment. (5

RR 10). The State and the Defense made closing statements, and the jury

subsequently sentenced the Appellant to life in the Texas Department of



	                                    10	  
Criminal Justice, Institutional Division, and further assessed a ten thousand

(10,000) dollar fine. (5 RR 13-35).

                        Summary of the Argument

       The Appellant, Mr. Barton, contends that he was denied the effective

assistance of counsel, as a result of his trial counsel’s multiple acts of

deficient performance. Furthermore, the Appellant asserts that this denial of

effective assistance of counsel resulted in prejudice. Mr. Barton seeks this

Honorable Court to reverse the judgment of conviction and/ or punishment

below, or in the alternative, remand the case to the trial court to determine

Mr. Barton's competency and/or sanity at the time of the commission of the

offense, and/ or to determine whether trial counsel conveyed the plea offer to

Mr. Barton.

                         Point of Error One


      The Appellant was denied the effective assistance of counsel, as a
result of the Appellant’s trial counsel’s multiple acts of deficient
performance.

                         The Standard of Review

       A defendant in a criminal case is entitled to effective assistance of

counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).

Furthermore, counsel must act within the range of competence demanded of

counsel in criminal cases. McMann v. Richardson, 397 U.S. 759 (1970).

	                                    11	  
       In Strickland v. Washington, the United States Supreme Court

established the federal constitutional standard for determining whether

counsel rendered reasonably effective assistance. Strickland v. Washington,

466 U.S. 668 (1984).       The defendant first must show that counsel’s

performance was deficient; that counsel made errors so serious that he was

not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Id. at 687. Second, the defendant must show that the deficient

performance prejudiced the defense; that counsel’s errors were so serious as

to deprive the defendant of a fair trial with a reliable result. Id. at 692. The

defendant must identify specific acts or omissions of counsel that are alleged

not to have been the result of reasonable professional judgment. Id. at 690.

The reviewing court must then determine whether, in light of all the

circumstances, the identified acts or omissions were outside the range of

professionally competent assistance. Id. Ultimately, the defendant must

show that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different. Id. at 694. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id.


       Counsel’s performance is measured against an “objective standard of

reasonableness under prevailing professional norms.” Wiggins v. Smith, 539


	                                    12	  
U.S. 510, 527 (2003). The prejudice an applicant must show is by less than

a preponderance of the evidence because “[t] he 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).


       While the Appellant must overcome the “strong presumption” that

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

counsel may not insulate challenged conduct from review by claiming it was

“strategic.” Bell v. Cone, 535 U.S. 685, 698 (2000). Whether counsel’s

conduct was strategic is a question of fact, but whether it was objectively

reasonable is a question of law, to which no deference is owed. Collier v.

Turpin, 155 F.3d 1277, 1290 (11th Cir. 1998). As explained in Strickland,

the 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.” Strickland, 466 U.S. at 698. Moreover, strategic choices are entitled

to deference only to the extent they are based on informed decisions. Id. at

690-691.




	                                  13	  
       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.” Moore v. Johnson, 194 F.3d 586, 604 (5th

Cir. 1999). See also Hardwick v. Crosby, 320 F.3d 1127, 1186 (11th Cir.

2003) (“The mere incantation of ‘strategy’ does not insulate attorney

behavior from review.”); 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 a claim

of trial strategy] must not be watered down into a disguised form of

acquiescence.”).


       Lastly, it is possible that a single egregious error of omission or

commission by appellant’s counsel constitutes ineffective assistance of

counsel. Jackson v. State, 766 S.W.2d 504, 508 (Tex.Crim.App. 1985).




	                                   14	  
                        Acts of Deficient Performance

       The first act of deficient performance is that Mr. Barton’s trial counsel

failed to investigate Mr. Barton’s mental health in regards to his competency

and/or sanity to stand trial.

       One necessary facet of effective assistance of counsel is the

investigation of the facts and law as applicable to the case; counsel has the

duty in every case to make a reasonable investigation or a reasonable

decision that an investigation is necessary.     Strickland v. Washington, 466

U.S. 668, 691 (1984). As the Texas Court of Criminal Appeals explained in

Ex parte Martinez, “When assessing the reasonableness of an attorney’s

investigation, a reviewing court must consider the quantum of evidence

already known to counsel and whether the known evidence would lead a

reasonable attorney to investigate further.” Ex parte Martinez, 195 S.W. 3d

713, 721 (Tex.Crim.App. 2006). Here, trial counsel was deficient when he

made an unreasonable decision to not investigate Mr. Barton’s mental

health, because there was considerable evidence known to trial counsel that

would lead a reasonable attorney to investigate further.    Id. at 721.

       The Appellant had court appointed trial counsel prior to Mr. Hernandez

being retained. (1 CR 18). The court appointed trial counsel had filed a

motion for Mr. Barton to be evaluated for competency and sanity because



	                                     15	  
there was evidence that would lead a reasonable attorney to investigate

further into Mr. Barton’s mental health. (1 CR 15). Specifically, in the said

motion, the court appointed trial counsel states that there was good cause for

the filing the said motion, because Mr. Barton was prescribed psychotropic

medications, and further that it was evident from a review of the evidence

that there existed valid questions regarding Mr. Barton’s mental health. (1

CR 15). This motion was never ruled upon, because there is no order in the

trial court’s file. (1 CR 15).

       The record below further reflects that Detective Mizanin testified that

during his interview of Mr. Barton, Mr. Barton was extremely fidgety and

uncomfortable, and that Mr. Barton was mumbling things to himself while

he was alone. (3 RR 85). Detective Mizanin further stated that Mr. Barton

asked if he was going to be arrested, and that when an officer who walked

by with a ticket book, Mr. Barton questioned him, “is that for me?” (3 RR

85).      Detective Mizanin’s testimony indicates that Mr. Barton could be

suffering from possible schizophrenia, because he was talking to himself,

and could also be suffering from a paranoid personality disorder or another

mental health issue because of the paranoid behavior Mr. Barton was

exhibiting. (3 RR 85).

       Lastly, the fact that Mr. Barton and Ms. Hunt were living under a



	                                    16	  
bridge in San Marcos, and were homeless during the time frame of the

assault, is also a red flag that Mr. Barton may have mental health issues that

need to be investigated. (3 RR 69).

              The record reflects that Mr. Barton received ineffective assistance of

counsel below, when Mr. Barton’s trial counsel made the unreasonable

decision to not assess Mr. Barton’s mental health, because there was

considerable evidence that would lead a reasonable attorney to investigate

further, including a previously filed motion that was never ruled upon

requesting that Mr. Barton’s mental health be evaluated.                                                                                                                   Id. at 721.

              The second act of deficient performance is that Mr. Barton’s trial

counsel did not convey the plea offer to Mr. Barton. The record is void of

any oral record or written record that Mr. Barton was made aware of the plea

bargain in the case and the serious consequences of rejecting such plea

bargain.1 (1 CR 1-114).

              Since the time period for a motion for new trial has lapsed, and it was

not possible to ascertain this issue before reviewing the full record below,

Appellant would respectfully request the Court to remand the case to the

trial court on this issue so that a full record can be developed. TEX. R. APP.


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1	  Appellate	  counsel	  spoke	  with	  trial	  counsel	  and	  was	  informed	  that	  there	  was	  a	  plea	  

offer	  of	  25	  years;	  Mr.	  Barton	  was	  never	  made	  aware	  of	  such	  offer	  until	  
correspondence	  with	  appellate	  counsel.	  

	                                                                                                           17	  
21.4. For, the Appellant contends that there is a reasonable probability that

Mr. Barton would have accepted the plea offer, if trial council had not given

ineffective assistance, the prosecution would not have withdrawn the offer,

and the trial court would not have refused to accept plea bargain. Ex parte

Argent, 393 S.W.3d 781, 784 (Tex.Crim.App. 2013). Mr. Barton contends

that he received ineffective assistance of counsel below, when trial counsel

failed to inform him of the plea offer. (1 CR 1-114).

       The last act of deficient performance below is that Mr. Barton’s trial

counsel announced to the jury during the punishment phase of trial that Mr.

Barton would testify, and then the next day did not have Mr. Barton testify.

(4 RR 113). There is absolutely no possible trial strategy involved in this

action. Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999).

       The record establishes that Mr. Barton’s trial counsel was calling Mr.

Barton to testify in that very instant in time, but that the trial court recessed

the case to the next day:

       MS. GARCIA: No further witnesses. The State rests.

       THE COURT:       Is the Defense going to call any witnesses during

punishment?

       MR. HERNANDEZ: It’s going to be Mr. Barton, Your Honor, So

we—I know we talked about the—we didn’t have a jury charge ready or a



	                                     18	  
jury pattern ready and we weren’t going to give it to the jury today. I didn’t

know if you want to break for the day and start again with my one witness in

the morning before we got it to them.

       THE COURT: Okay. Ladies and gentlemen, I am going to ahead and

break for the day. (4 RR 113).

       The above exchange reveals Mr. Barton’s trial counsels’ clear intention

that he was going to put Mr. Barton on the stand in that very moment in

time. (4 RR 113). The only reason that Mr. Barton did not testify before the

jury is that the trial court recessed the proceedings to the next day. (4 RR

113). The record does not contain any evidence that something had changed

between the moment in time that trial counsel was prepared to put Mr.

Barton on the stand and the next morning, when trial counsel did not put Mr.

Barton on the stand; therefore there cannot be any strategy behind this

action. (4 RR 113-118); (5 RR 9).           The Appellant would contend that he

was not provided effective assistance of counsel in the punishment phase

due to trial counsel’s actions. Strickland v. Washington, 466 U.S. 668, 691

(1984). For, as the Texas Court of Criminal Appeals articulated in Andrews

v. State, “When no reasonable trial strategy could justify the trial counsel’s

conduct, counsel’s performance falls below an objective standard of

reasonableness as a matter of law, regardless of whether the record



	                                      19	  
adequately reflects the trial counsel’s subjective reason for acting as she

did.” Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App. 2005). It is

basic black letter law that the trial judge and the prosecutor are not allowed

to call attention to a defendant’s failure to testify, therefore, it must follow

that a defendant’s own trial counsel should in turn not clumsily highlight the

defendant’s failure to testify.      Bird v. State, 527 S.W.2d 891, 893

(Tex.Crim.App. 1975).

                                  Prejudice

       The “prejudice” prong of Strickland requires this Court to determine

whether counsel’s objectively deficient conduct highlighted above 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 v.

Washington, 466 U.S. 668, 694 (1984); Kyles v. Whitley, 514 U.S. 419, 430

(1995).    The prejudice the Appellant must show is by less than a

preponderance of the evidence because “[t]he reasonable-probability

standard is not the same as, and should not be confused with, a requirement

that the Appellant 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



	                                    20	  
obligated to consider the cumulative effect of the multiplicity of counsel’s

errors demonstrated in the record below. Strickland v. Washington, 466 U.S.

668, 690 (1984).


       Regarding trial counsel’s failure to investigate Mr. Barton’s mental

health, there is a reasonable probability that if Mr. Barton’s mental health

was assessed, that the case would never have gone to trial, that Mr. Barton

could have raised the defense of insanity, or that Mr. Barton could have

properly assisted trial counsel with defending the case after regaining

competency; thus the result of the proceedings below would have been

different. Strickland v. Washington, 466 U.S. 668, 694 (1984).


       With regard to trial counsel’s failure to convey the plea offer to Mr.

Barton, there is clearly a reasonable probability that the result of the

proceedings below would have been different, because Mr. Barton would

have entered into the plea agreement, and therefore would not have gone to

trial and received a life sentence. Id. at 694.


       Lastly, regarding the fact that the jury was told that they were going to

hear from Mr. Barton during the punishment phase of trial, and then did not,

there is a reasonable probability that the result of the punishment

proceedings would have been different if this had not occurred. Id. at 694.


	                                     21	  
For, it cannot reasonably be argued that this action could be cured simply

from the instruction given by the trial court in the punishment charge; trial

counsel admitted to Mr. Barton’s egregious behavior in the cross

examination of the victim, and in closing statements, and the fact that the

jury anticipated during an entire overnight recess that they would hear some

sort of remorse or explanation from Mr. Barton the next morning, and then

did not, clearly only served to fuel the jury’s loathing of Mr. Barton. (4 RR

94); (5 RR 20); Id. at 694.


       The present case presents in compelling terms “a breakdown in the

adversarial process that our system counts on to produce just results.” Id. at

696. “When a [reviewing] court is in grave doubt as to the harmlessness of

an error that affects substantial rights, it should grant relief.” O’Neal v.

McAninch, 513 U.S. 432, 445 (1995); see also Burnett v. State, 88 S.W.3d

633, 638 (Tex.Crim.App. 2002). (“In cases of grave doubt as to

harmlessness the [Appellant] must win.”). Because this Court must have

such grave doubt about whether the Appellant’s trial counsels’ multiple

instances of objectively deficient conduct contributed to Mr. Barton’s

conviction and punishment, it must grant Mr. Barton a new trial. O’Neal v.

McAninch, 513 U.S. 432, 445 (1995).




	                                   22	  
       For these reasons Mr. Barton would respectfully request the Court to

hold that the cumulative effect of his trial 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 the Appellant’s trial. Strickland v. Washington, 466 U.S. 668,

696 (1984). Mr. Barton contends that if his trial counsel had discharged his

duty below, there is a reasonable probability the result of the proceedings

would have been different. Id. at 694.

                           PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, Zane Barton, prays this

Honorable Court will reverse the judgment of conviction and or punishment

below, or in the alternative, remand the case to the trial court to determine

Mr. Barton's competency and/or sanity at the time of the commission of the

offense, and/ or to determine whether trial counsel conveyed the plea offer to

Mr. Barton. Further, Zane Barton prays that this Honorable Court will enter

any other relief appropriate under the facts and the law.



                              Respectfully Submitted,

                              /s/ Amanda Erwin
                              __________________________________
                              Amanda Erwin
                              The Erwin Law Firm, L.L.P.

	                                    23	  
       109 East Hopkins Street, Suite 200
       San Marcos, Texas 78666
       Telephone: (512) 938-1800
       Telecopier: (512) 938-1804
       amanda@theerwinlawfirm.com
       Attorney for Appellant
       Zane Barton
       State Bar Number 24042936




	            24	  
                        CERTIFICATE OF SERVICE

       Pursuant to TEX. R. APP. P. 9.5, I certify that of April 22, 2015, a copy

of this motion was mailed via first class U.S. mail, to the following: Hays

County District Attorney’s Office, 712 Stagecoach Trail, Suite 2057, San

Marcos, Texas 78666.



                                /s/ Amanda Erwin
                                _________________________________
                                Amanda Erwin




	                                     25	  
       CERTIFICATE OF COMPLIANCE STATING NUMBER OF
                       WORDS IN BRIEF

       Pursuant to Tex. R. App. P. 9.4(i), Appellant certifies that this

Appellate Brief contains only 5,749 words, and is therefore compliant with

the maximum word limitation allowed by the Honorable Court.




                                    /s/ Amanda Erwin
                                    _________________________________
                                    Amanda Erwin




	                                     26	  
