                                                                           ACCEPTED
                                                                       06-15-00072 CR
                                                            SIXTH COURT OF APPEALS
                                                                  TEXARKANA, TEXAS
                                                                   8/4/2015 2:38:31 PM
                                                                      DEBBIE AUTREY
                                                                                CLERK

                           IN THE
                      COURT OF APPEALS
            SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                      FILED IN
                                               6th COURT OF APPEALS
                                                 TEXARKANA, TEXAS
                     NO. 06-15-00072-CR        8/4/2015 2:38:31 PM
                                                   DEBBIE AUTREY
                                                       Clerk
               JAMES JOSEPH WATTS, Appellant

                            VS.

                THE STATE OF TEXAS, Appellee


            On Appeal from 354th District Court
                     Hunt County, Texas
              Trial Court Cause Nos CR-22,781


                     APPELLANT'S BRIEF




APPELLANT REQUESTS ORAL ARGUMENTS




                                    TOBY C. WILKINSON
                                    2815 Wesley Street
                                    P.O. Box 324
                                    Greenville, Texas 75403-0324
                                    (903) 454-6096
                                    (903) 454-0446 Fax
                                    S.B.A. #21497300
                                    Attorney for Appellant




                             1
                      TABLE OF CONTENT

SECTION                                                       PAGE

TABLE OF CONTENTS………………………………………………………………………………………………………………    2

NAMES OF ALL PARTIES………………………………………………………………………………………………………    3

INDEX OF AUTHORITIES………………………………………………………………………………………………………    4

STATEMENT OF THE CASE……………………………………………………………………………………………………    5

ISSUES PRESENTED…………………………………………………………………………………………………………………    6

    Number One (In Summary:       The trial attorney
    rendered ineffective assistance to Appellant.)

FACTS………………………………………………………………………………………………………………………………………………    6

LAW……………………………………………………………………………………………………………………………………………………    7

SUMMARY OF ARGUMENT…………………………………………………………………………………………………………    8

ARGUMENT………………………………………………………………………………………………………………………………………    9

CONCLUSION…………………………………………………………………………………………………………………………………    10

REQUEST FOR ORAL ARGUMENTS………………………………………………………………………………………    10

PRAYER……………………………………………………………………………………………………………………………………………    11

CERTIFICATE OF SERVICE…………………………………………………………………………………………………    11




                             2
               NAMES OF ALL PARTIES AND ATTORNEYS

     So the members of the Court can determine disqualification
and recusal under Texas Rules of Appellate Procedure 15 and 15a,
Appellant certifies that the following is a complete list of the
parties, attorneys, the trial court judge, and any other person
who has an interest in the outcome of this case:

Appellant:                              James Joseph Watts
                                        1385 FM 3328
                                        ID 1985038
                                        Palestine, Tx
                                        75803

Appellant's trial counsel:              Jerry W. Card
                                        4503 CR 1033
                                        Celeste, TX 75423

Appellant's counsel on Appeal:          Toby C. Wilkinson
                                        P.O. Box 324
                                        Greenville, Texas
                                        75403-0324

Appellee:                               The State of Texas

Appellee's trial counsel:               Lauren Hudgeons
                                        2507 Lee Street,
                                        Fourth Floor
                                        Greenville, Tx
                                        75401

Appellee's counsel on appeal:           Noble D. Walker
                                        2507 Lee Street,
                                        Fourth Floor
                                        Greenville, Tx
                                        75401



Trial Judge:                            Richard A. Beacom, Jr
                                        2507 Lee Street,
                                        Third Floor
                                        Greenville, Tx
                                        75401




                                3
                      INDEX OF AUTHORITIES
                                                            Page:
Cases:

KNIGHT a/k/a Genary Lois Bailey, v. Texas 91 S.W. 3rd 418…………… 8
(Tex. App. Waco.2002)

Lockhart v. Fretwell, 506 U.S. 364 …………………………………………………………………… 8

Constitution:

U.S. Constitution, Amendment VI …………………………………………………………………………… 7




                             4
                      STATEMENT OF THE CASE


                       Nature of the Case

     This is a criminal case wherein the Appellant was on 10

years Deferred Adjudication Probation for the offence of

Aggravated Sexual Assault of a Child Younger than 14 year of

age. The State filled a Motion to Revoke Deferred Adjudication

Community Supervision and Request for Finale Adjudication.


                    Course of the Proceedings

     On or about April 1, 2005 Appellant was indicted for the

offence of Aggravated Sexual Assault of a Child Younger than 14

years of age. (Clerk’s Record CD 1 page 6 hereinafter referred

to as C.R. p.). On August 5, 2005 Appellant was placed on 10

years Deferred Adjudication Community Supervision with

conditions of Probation (C.R. pp 44-54). On or about December 4,

2014 the State filled a Fourth Motion to Revoke Deferred

Adjudication Community Supervision and Request for Finale

Adjudication (C.R. pp 110-114). On or about December 18, 2014

Jerry Card, Esq. was appointed to represent Appellant C.R. p

117). On February 18, 2015 a hearing was held in the 354th

Judicial District Court Hunt County Texas and Appellant’s

Community Supervision was revoked; Appellant was found guilty.

The Judge sentenced Appellant to 20 years and 0 months and 0

days in the Institutional Division, TDCJ (C.R. pp 122-126). On

                             5
February 25, 2015 a Notice of Appel was filled (C.R. p 134). On

March 17, 2015 a Motion for New Trial and Motion in Arrest of

Judgment was filled and presented to the Court (C.R. pp 137-

139). On May 4, 2015 the Court held a hearing on the Motion for

New Trial (Court Reporter’s Record Volume 4 hereinafter referred

to as C.R.R. Vol. p.).


                    Trial Court’s Disposition

     On February 18, 2015, the Trial Court entered a judgment

adjudicating Appellant’s guilt.   The Court thereafter sentenced

Appellant to 20 years in the Institutional Division of Texas

Department of Criminal Justice.   The Court granted the Appellant

credit for 429 days served.


                       Point of Error:
     The Trial Attorney rendered ineffective assistance of
counsel to the Appellant by not calling necessary
witnesses.

Facts:
     On February 16, 2015 a hearing was conducted in this

matter by the 354th Judicial District Court of Hunt County

Texas regarding the Motion to Revoke Appellant’s Community

Supervision (C.R.R. Vol. 3 pp.7-145). At the true/ not true

portion of the hearing the State called the following

witnesses Michael McAda, Scott Sleeman, Terri Baker, Krista

Stinnett, Steve Scott, and Samantha Manrique (C.R.R. Vol. 3

pp. 9-112). The Appellant’s attorney called the Appellant

                              6
(C.R.R. Vol. 3 pp. 112-132). At the Punishment phase the

State did not call any witnesses (C.R.R. Vol. 3 p. 137).

Appellant’s attorney requested a continuance for the

purpose of having other witnesses testify and the Judge

denied the request (C.R.R. Vol. 3 p. 137). Appellant’s

attorney called one witness at Punishment Diane Watkins

(C.R.R. Vol. 3 pp. 138-141). Appellant would further show

that he had requested his attorney call Dr. Anna Shursen,

Kayla Ashley, Edward Watts, Victor Harris (a neighbor),

Rhonda Wooten, and his mother-in-law [Cynthia Mauldin]

(C.R.R. Vol. 4 pp.7-8). Appellant’s attorney decided not to

call Dr. Shursen but did not discuss the decision with

Appellant (C.R.R. Vol. 4 p. 18). Appellant would show that

while his attorney did not request a continuance in the

true/not-true phase, he did seek a continuance in the

Punishment phase additionally Appellant’s attorney failed

to subpoena any of the witnesses (C.R.R. Vol. 4 p. 24).


Law:

The Sixth Amendment of the U.S. Constitution guarantees a
criminal defendant the right to the effective assistance of
counsel.
"In all criminal prosecutions, the accused shall . . . have
the assistance of counsel for his defense."

-U.S. Constitution, Amendment VI


                             7
     A convicted defendant who claims that he was denied
his right to the effective assistance of counsel
must establish that (1) counsel’s performance was
constitutionally “deficient” and that (2) counsel’s
errors“prejudiced the defense.” Strickland v.
Washington,466 U.S. 668, 687 (1984). Such prejudice
requires a reasonable probability that counsel’s
performance affectedthe outcome. Ibid. Not all differences
in outcome, however,can constitute cognizable prejudice.
Because the touchstone of the inquiry is reliability and
fundamentalfairness, cognizable prejudice occurs only if
counsel’serror deprives the defendant of a “substantive or
procedural right to which the law entitles him” in his
defense. Lockhart v. Fretwell, 506 U.S. 364, at page 372
(1993).

 In     KNIGHT a/k/a Genary Lois Bailey, v. Texas 91 S.W. 3rd
      418 (Tex. App. Waco.2002) at page 424 the court held

 To prevail on an ineffective assistance claim, an
appellant must overcome the strong presumption that counsel
rendered reasonably professional assistance. See Thompson
v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App.1999).
Ordinarily, this presumption cannot be overcome without
evidence in the record of counsel's reasons for the acts or
omissions of which the appellant complains. See Johnson v.
State, 68 S.W.3d 644, 655 (Tex.Crim.App.2002); Thompson, 9
S.W.3d at 813-14; Murray v. State, 24 S.W.3d 881, 891
(Tex.App. — Waco 2000, pet. ref'd). However, we do note
that a single act or omission on counsel's part can be so
egregious as to constitute ineffective assistance. See
Thompson, 9 S.W.3d at 813; Scott v. State, 57 S.W.3d 476,
483 (Tex.App. — Waco 2001, pet. ref'd).


Summary of Argument:

       Appellant contends his attorney failed to investigate

this matter because he failed to interview witnesses. The

attorney failed to call or subpoena witnesses to the

hearing. Appellant would show that this lack of assistance

by his trial attorney harmed him because he was not given a

                               8
fair and adequate hearing. This failure by his attorney

amounted to ineffective assistance of counsel.


Argument:

    Appellant would show that he was facing a revocation

of his community supervision and if revoked the minimum

punishment was two years in prison and a maximum of ninety-

nine years, or life, in prison. Appellant’s attorney by his

own admission failed to talk to his counselor, Dr. Anna

Shursen. Additionally the attorney did not investigate this

matter by talking to his witnesses or other potential

witnesses, both fact and punishment. The attorney stated

that he had met with the Appellant on several occasions yet

he failed to call any witnesses. Additionally the trial

attorney claims that he did not know who two of the

witnesses were. Appellant would show that had his attorney

done a proper investigation he would have talked to all of

the witnesses who lived near the appellant. Appellant

contends he was harmed by the trial attorney’s failure to

investigate and defend him. Appellant contends that these

failures on the part of his trial attorney rendered the

attorney’s assistance ineffective denying him a fair

hearing.




                             9
    Appellant would show that Dr. Shursen would testify

that he was still in the program and doing well. The other

witnesses would have refuted the state’s witnesses’

testimony that he had been around the children. Finally,

Appellant would show that the trial attorney knew it was

improper to have the witnesses at the hearing or he would

not have asked for a continuance. If the attorney had done

his job, these witnesses would have been subpoenaed and

would have been at the hearing.


Conclusion:

    Appellant contends that the witnesses he requested

would have made a valuable contribution to his defense.

Appellant’s trial attorney failed and refused to subpoena

any of the witnesses that Appellant requested. Appellant’s

attorney did not provide the Court with any strategy that a

reasonable trial attorney would have employed in his

defense of the Appellant because of the attorneys

ineffective assistance Appellant was harmed and this Court

should order a new hearing in the matter.


Request for Oral Arguments:


    Appellant’s attorney requests that he be allowed to

present oral arguments in this matter.


                              10
Prayer:

     WHEREFORE, PREMISES CONSIDERED, Appellant prays that

this Court reverse the Trial Court.   Appellant requests

this Court to grant him a new hearing in this matter.


     Respectfully submitted this 3rd day of August 2015.

                                       \S\Toby C. Wilkinson
                                            Toby C. Wilkinson




                  CERTIFICATE OF SERVICE:

     The undersigned Attorney hereby certifies that a true

and correct copy of this Appellant's Brief has been hand

delivered this date to HONORABLE Nobel D. Walker, Hunt

County District Attorney, Hunt County Courthouse,

Greenville, Texas, and that a true and correct Copy will be

delivered by certified mail return receipt request to

Appellant, James Joseph Watts, this the 4th day of August,

2015.




                                       \S\Toby C. Wilkinson
                                            Toby C. Wilkinson




                             11
          CERTIFICATE OF COMPLIANCE OF WORD COUNT

    In Accordance with Texas Rule of Appellate Procedure

9.4(i), the undersigned attorney of record certifies that

the Appellant’s Brief contains 1,730 words, excluding those

words identified as not being counted in Appellate Rule of

Procedure 9.4(i)(1), and was prepared on Microsoft Word

2010.




_        \S\ Toby C. Wilkinson
         Toby C. Wilkinson,




                                 12
