                                                                           ACCEPTED
                                                                       06-15-00162-CR
                                                            SIXTH COURT OF APPEALS
                                                                  TEXARKANA, TEXAS
                                                                  12/8/2015 4:34:53 PM
                                                                      DEBBIE AUTREY
                                                                                CLERK

                           IN THE

                    COURT OF APPEALS                  FILED IN
                                               6th COURT OF APPEALS
                                                 TEXARKANA, TEXAS
            SIXTH SUPREME JUDICIAL     DISTRICT12/9/2015 8:17:00 AM
                                                   DEBBIE AUTREY
                                                       Clerk
                         OF TEXAS

               TRIAL COURT NO. CR2014-385

                DOCKET NOS. 06-15-00162-CR

                   THE STATE OF TEXAS

                            VS.

                      JAMES SCHWING

  ___________________________________________________________

                   ON APPEAL FROM THE

              207TH JUDICIAL DISTRICT COURT

                OF COMAL COUNTY, TEXAS

____________________________________________________________

                  BRIEF FOR APPELLANT

_____________________________________________________________
                                 C. WAYNE HUFF
                                 P.O. Box 2334
                                 Boerne, Texas 78006
                                 Bar Card No. 10180600
                                 (214) 803-4127
                                 Facsimile (830) 230-5567
                                 Email: cwhuff@aol.com
                                 ATTORNEY FOR APPELLANT
                                          TABLE OF CONTENTS

LIST OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

SUMMARY OF THE ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT

Issue No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Issue No. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                             ii
                      LIST OF PARTIES AND COUNSEL

The undersigned counsel for Appellant, JAMES SCHWING, certifies that the
following is a list of parties and counsel of this case, as required by Rule 38.1(a),
Texas Rules of Appellate Procedure:

JAMES SCHWING                                   APPELLANT

TIMOTHY WALKER                                  ATTORNEY FOR APPELLANT
                                                (TRIAL)

C. WAYNE HUFF                                   ATTORNEY FOR APPELLANT
                                                (APPEAL)

JENNIFER THARP                                  CRIMINAL DISTRICT ATTORNEY
                                                133 N. Industrial Blvd.
                                                Dallas, TX 75207

DANIEL PALMITIER                                ASST. DISTRICT ATTORNEYS
                                                133 N. Industrial Blvd
                                                Dallas, TX 75207
                                                (TRIAL)




                                          iii
                                INDEX OF AUTHORITIES

                                              CASES


Clay v. State, 741 S.W.2d 209 (Tex. App.– Dallas 1987) . . . . . . . . . . . . . . . . . . 14

Harrell v. State, 884 S.W.2d 154 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . 11,15

Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986 . . . . . . . . . . . 15

Higginbotham v. State, 356 S.W.3d 584 (Tex. App.– Texarkana 2011) . . . . . . . 11

Jackson v. State, 320 S.W.3d 873, 889
      (Tex. App.– Texarkana 2010, pet. ref.’d) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . 12

Sims v. State, 273 S.W.3d 291, 294-95 (Tex. Crim. App. 2008) . . . . . . . . . . . . . 11

Strickland v. Washington, 466 U.S. 668, 687 (1984) . . . . . . . . . . . . . . . . . . . . . 15

Taylor v. State, 911 S.W. 2d 906 (Tex. App.– Fort Worth 1995) . . . . . . . . . . . . 14

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) . . . . . . . . . . . . . 16

Tippins v. State, 530 S.W.2d 110,111 (Tex. Crim. App. 1975) . . . . . . . . . . . . . . 11

Welch v. State, 993 S.W.2d 690, 667 (Tex. App.– San Antonio 1999) . . . . . . . . 15

                                           STATUTES

Tex. Code Crim. Proc., Art. 37.07 Sec. 3(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex. Code Crim. Proc., Art 37.07, Sec. (3)(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

                                                 iv
Tex. Code Crim. Proc., Art 37.07, Sec. (4)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Texas Rules of Evidence, 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Texas Penal Code §12.425(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2




BRIEF FOR APPELLANT-1
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      APPELLANT, James Arthur Schwing, respectfully submits this his brief in

the above styled and numbered cause.

                         STATEMENT OF THE CASE

      Appellant was charged by indictment with the offense of possession of less

than one gram of methamphetamine. This state jail felony was enhanced by six

enhancement paragraphs alleging prior felony convictions in the State of California.

Thus the allowable punishment range was for that of a second-degree felony. Texas

Penal Code §12.425(b). (CR: 13-14)

      The case proceeded to jury trial on June 2, 2015 and concluded on June 4,

2015. The jury found Appellant guilty as charged in the indictment and all of the

enhancement paragraphs to be true. Punishment was assessed by the jury at 18 years

confinement and a fine of $1800.00. (RR6: 26)

       Appellant filed a timely motion for new trial and a notice of appeal on

September 2, 2015. (CRII:71&77)

      References herein to the Court’s record or transcript are denoted as CR while




BRIEF FOR APPELLANT-2
references to the Court Reporters record are denoted as RR.




BRIEF FOR APPELLANT-3
                           ISSUES PRESENTED


                           ISSUE NUMBER ONE

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING
THE TRIAL OF HIS CASE IN VIOLATION OF THE SIXTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ARTICLE 1, § 10 OF THE TEXAS
CONSTITUTION.

                           ISSUE NUMBER TWO

THE JUDGMENT OF THE COURT IS INCONSISTENT WITH THE ACTUAL
COURT’S RECORD AND SHOULD BE REFORMED




           STATEMENT REGARDING ORAL ARGUMENT

    Oral argument is not requested unless it is requested by the State.




BRIEF FOR APPELLANT-4
                            STATEMENT OF FACTS

      The state’s first witness was Jason Martin, a Comal County Sheriff’s Deputy,

who testified that he was part of a team assigned to execute an arrest warrant on

Heather McCarthy at 1919 Montview at Mobile Home Estates in Comal County.

Upon arriving he observed Appellant outside of the residence and suspected that he

may have been attempting to warn someone inside. (RR3: 198-199) Appellant was

ordered out of the yard and searched, according to Martin, due to safety concerns.

When asked, Appellant admitted to having a utility knife and a needle in his pockets.

The search also produced a syringe and plastic baggies from Appellant. At this point

Appellant attempted to flee, was apprehended and after a struggle and being tased

was arrested. (RR3: 200-207)

      The state next called Norman Lieke a Sheriff’s office property and evidence

clerk who testified to taking control of the evidence seized from Appellant and

subsequently transporting the drug evidence to the Department of Public Safety lab

for analysis. (RR3:221-226)

      Jose Martinez, a chemist at that lab, testified that the seized evidence consisted

of .18 grams of methamphetamine. (RR3:228-245)

      The state’s next witness was Frank Cockrell, a Comal county detective who

was also part of the team executing the arrest warrant. Cockrell testified to


BRIEF FOR APPELLANT-5
witnessing the arrest of Appellant. He also testified that Appellant admitted to

possession of the drugs. (RR3:245-256)

        The state’s last witness at the guilt phase of the trial was Charles Mott who

testified to observing the detention and arrest of Appellant and to hearing Appellant

state that he tried to flee because he was in possession of drugs. (RR4:6-16)

        At the punishment phase the State called Ron Womack who testified that

Appellant’s fingerprints matched the fingerprints from certified copies of convictions

of Appellant in California. The certified copies were admitted before the jury. (RR5:

6-19)

        The state’s final witness was Jason Cline, a detective, who testified that certain

of the tattoos on Appellant’s body represented white supremacist markings. (RR5:

21-40)

        The defense called Lewis Breeden and Clarence Collins who testified to

Appellant’s work history when they employed him. (RR5:59-75)

        The defendant testified that he left California in 2007 and after moving to

Texas did not re-offend until he was arrested for this offense. He admitted his prior

convictions and that he possessed methamphetamine as a result of a relapse.

(RR5:79-101)




BRIEF FOR APPELLANT-6
                        SUMMARY OF THE ARGUMENT

         Issue one: Appellant urges that he received ineffective assistance of trial

counsel due to counsel’s failure to make appropriate and timely objections to the

admission of unproven extraneous offenses and arguments regarding parole by the

State.

         Issue two: Appellant suggests that the Court’s judgment should be reformed

since it erroneously reflects that Appellant pled true to all enhancement paragraphs.




BRIEF FOR APPELLANT-7
                              ISSUE NUMBER ONE

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING
THE TRIAL OF HIS CASE IN VIOLATION OF THE SIXTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ARTICLE 1, § 10 OF THE TEXAS
CONSTITUTION.

                    A. Failure to Object to Extraneous Offenses

                                      1. Facts

      After being convicted, Appellant was arraigned on six enhancement paragraphs

alleging felony convictions from California. Appellant pled not true to all of the

paragraphs except for paragraph II to which he pled true. (RR4: 59-60) The state then

offered the documents state’s exhibits P-4 through P-10 into evidence. Appellant’s

counsel made a number of objections to the documents but none of these addressed

the fact that they contained evidence of unadjudicated extraneous offenses. (RR4:

60-63) The exhibits were then admitted before the jury.

      A. State’s exhibit P-4 related to enhancement paragraph one of the indictment

alleging Appellant’s conviction for Forgery-Possessing Completed Paper. Page one

of the exhibit reflects that Appellant was convicted of this offense by plea of guilty

on April 1, 2004. In addition, however, the document as a whole contains allegations

of three offenses for which Appellant was charged, but not convicted, namely, Count

2-Use Personal Identifying Information of Another, Count 3-Driving when Privilege

Suspended or Revoked for Other Reason and Count 4-Failure to Provide Evidence

BRIEF FOR APPELLANT-8
of Financial Responsibility.

      B. State’s exhibit P-5 related to enhancement paragraph two of the indictment

alleging Appellant’s conviction for Assault With a Firearm on August 24, 1998.

However, the document as a whole contains three allegations which were not

adjudicated, specifically, Count 1-Kidnaping for Ransom, Count 4-Assault Great

Bodily Injury and with Deadly Weapon, Count 5-Unlawful Driving or Taking of a

Vehicle. In addition, the charging instrument in these cases went into great detail

concerning the allegations that were alleged but not adjudicated including causing

great bodily injury.

      C. State’s exhibit P-6 related to enhancement paragraph three of the indictment

alleging Appellant’s conviction for Carry Dirk or Dagger on September 24, 1993.

Again, the document as a whole contains allegations which did not result in

Appellant’s conviction, including, Count 1-Battery Upon an Officer and Emergency

Personnel with Injury and Count 3-Resist, Obstruct or Delay a Public Officer.

      D. State’s exhibit P-7 related to enhancement paragraph four of the indictment

alleging Appellant’s conviction for Petty Theft with Prior on November 12, 1992.

In this document Appellant was also charged but not convicted in Count 1 of

Commercial General Burglary.




BRIEF FOR APPELLANT-9
      E. State’s exhibit P-8 related to enhancement paragraphs five and six of the

indictment alleging Appellant’s convictions for two counts of Burglary 2nd Deg. with

Prior in Cause No. CRN16985 on January 3, 1990. In addition the charging

instrument in counts 3 through 7 alleged 5 other burglaries on separate dates for

which Appellant was not convicted.

      In addition, to the documents introduced to support the enhancement

paragraphs the State offered State’s exhibit P-11-15 which were admitted absent any

objection to them containing evidence of extraneous offense. (RR4: 67-69). (RR5:5-

7)

      The California documents contained handwritten parole logs and records which

contained evidence of extraneous offense or violations. In State’s Exhibit 9 the

parole Chronological History (CH) reflects for example an arrest, a parole revocation

and suspension from May to July of 2006 (CH-p. 1), an arrest resulting in Appellant

being in custody in September of 2006 (CH-p.1A), arrests and parole suspensions in

2007 and 2008 (CH-p.1B), and another arrest and suspension in 2008 (CH-p.1C).

      The other exhibits contained similar allegations of arrests, suspensions, and

other misconduct. (States Exhibit 10, CH-p.1-1H) (State’s Exhibit 11-Repeat of CH)




BRIEF FOR APPELLANT-10
                                     2. Analysis

      Although an extraneous offense may be admissible at the punishment phase

whether or not a defendant was adjudicated guilty of that offense, the State is

nevertheless obligated to prove that offense beyond a reasonable doubt. Tex. Code

Crim. Proc., Art. 37.07 Sec. 3(a)(1); Harrell v. State, 884 S.W.2d 154 (Tex. Crim.

App. 1994); Tippins v. State, 530 S.W.2d 110,111 (Tex. Crim. App. 1975).

      This burden applies to such offenses offered at either phase of a criminal trial.

Higginbotham v. State, 356 S.W.3d 584 (Tex. App.– Texarkana 2011)

      This burden was satisfied with respect to proving the offenses alleged in the

six enhancement paragraphs because Appellant pled guilty and was actually

convicted of those offenses. Whether he committed the offenses alleged in the other

counts of the prior charging instruments is pure conjecture because the state offered

no evidence to support those mere allegations.

                                      3. Harm

      Extraneous-offense evidence is “inherently prejudicial, tends to confuse the

issues, and forces the accused to defend himself against charges not part of the

present case against him.” Sims v. State, 273 S.W.3d 291, 294-95 (Tex. Crim. App.

2008). By its very nature, an improperly admitted extraneous offense tends to be

harmful. It encourages a jury to base its decisions on character conformity, rather


BRIEF FOR APPELLANT-11
than evidence that the defendant committed the offense with which he or she has been

charged. Jackson v. State, 320 S.W.3d 873, 889 (Tex. App.– Texarkana 2010, pet.

ref.’d)

          In assessing the harm of extraneous offenses the Court of Criminal has

determined that an appellate court should consider everything in the record, including

any testimony or physical evidence admitted for the jury’s consideration, the nature

of the evidence supporting the verdict, the character of the alleged error and how it

might be considered in connection with other evidence in the case. The reviewing

court might also consider the jury instruction given by the trial judge, the State’s

theory and any defensive theories, closing arguments and even voir dire, if material

to appellant’s claim. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

          It is clear that the extraneous offenses admitted without objection were harmful

to Appellant. During its cross-examination of Appellant the State repeatedly and at

length emphasized the counts in his prior indictments that did not result in a

conviction, but were mere allegations. (RR5:110-118) Further, during final argument

both prosecutors relied heavily on these allegations in arguing for the maximum

punishment.

          Going so far as to claim that Appellant had committed the other counts alleged

in his prior indictments the prosecutor made the following argument:


BRIEF FOR APPELLANT-12
       (Mr. Palmitier): . . .he has been cut break, after break, after break, after
       break. He’s committed multiple-count indictments and charges. And all
       those he’s pled to the lesser of them, it has stricken all his priors and
       he’s only pled to one of the counts. That’s happened repeatedly over
       decades in California. That’s the breaks this man has been given
       already. You have seen the types of offenses he’s committed. He’s
       injured police officers in the past, allegedly. He’s been involved where
       he’s – someone was actually shot with a shotgun. He got two years for
       that. And the State of California struck all of his priors instead of
       enhancing him. (RR6: 12-13)


       The State continued to emphasize the unadjudicated offenses in its final appeal

to the jury:

       (Ms. Tharp) You have heard that he has been given break, after break,
       after break, after break in California. And frankly, had California dealt
       with this individual appropriately all those years ago, we wouldn’t have
       a situation here today, but they didn’t. And this defendant has not
       stopped committing felonies. (RR6: 23)

       Clearly the evidence of unproven extraneous offenses was harmful to

Appellant.

                B. Failure to Object to Arguments Concening Parole

       In addition, trial counsel compounded the harm caused by failure to object to

the extraneous offenses admitted against Appellant by not objecting to the improper

argument of the state involving application of the parole laws.

       In this regard the State made two arguments regarding parole:

       (Mr. Palmitier). . .you heard in his (Appellant’s) jail letters that he thinks
       he going to be out in 6 months. (RR6: 14)

BRIEF FOR APPELLANT-13
After reading the instructions concerning parole verbatim to the jury, he concluded:

      What you can learn from reading that is even 20 years doesn’t mean 20
      years. (RR6: 15)

      Prosecutors must exercise caution when arguing parole eligibility to a jury.

The Code of Criminal Procedure explicitly prohibits a jury from considering parole

eligibility with respect to the defendant on trial. Instead, a jury may only consider the

concept of parole eligibility in general. Tex. Code Crim. Proc., Art 37.07, Sec. (4)(a).

Consequently, while attempting to explain the existence of parole law as set forth in

the trial court’s charge, a prosecutor must avoid applying the law to the defendant on

trial. Taylor v. State, 911 S.W. 2d 906 (Tex. App.– Fort Worth 1995)

      In a situation where a prosecutor intermixes specifics about the defendant’s

potential for parole eligibility with a general discussion of parole law, as is the case

here, the Courts have held such remarks were “tantamount to telling the jury to

disregard the charge of the court on the applicable law and to apply the parole laws”

to the defendant on trial. Clay v. State, 741 S.W.2d 209 (Tex. App.– Dallas 1987).

      Trial counsel should have, but did not, make any objection to this argument.

        C. Trial Counsel’s Errors Deprived Appellant of Effective Counsel

      Trial counsel did object to the certified copies of prior convictions (State’s

exhibits P-4 through P-10) but did so based upon a belief that some of the offenses

BRIEF FOR APPELLANT-14
may now be misdemeanors. He made no objection that they contained extraneous

offenses that had not been adjudicated.

      There were at least two avenues available to counsel to object to the extraneous

offenses. First, after inquiring of the state if they intended to offer evidence to prove

the unadjudicated offenses, he could have objected to the introduction of any of the

exhibits which mentioned them and moved the court to order redaction of those

portions of the exhibits. Second, he could have requested that the trial court make a

threshold determination that the jury could reasonably find beyond a reasonable doubt

that Appellant committed the extraneous offenses. Harrell v. State, 884 S.W.2d 154,

160 (Tex. Crim. App. 1994). This latter determination could have been made by a

preliminary review of the documents. Welch v. State, 993 S.W.2d 690, 667 (Tex.

App.– San Antonio 1999).

      Instead, trial counsel took neither of these actions and did not object to State’s

Exhibits P-11 through P-15 at all.

      The test for ineffective assistance of counsel is the same under the state and

federal constitutions. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App.

1986. Claims of ineffective assistance of counsel are measured against a two-prong

test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668,

687 (1984). An appellant must first show that his attorney’ performance was


BRIEF FOR APPELLANT-15
deficient, i.e., that his assistance fell below an objective standard of reasonableness.

Second, a claimant must demonstrate prejudice or a reasonable probability that, but

for his attorney’s unprofessional errors, the result of the proceeding would have been

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

      It is clear from the record that trial counsel not only did not make appropriate

objections, but was unprepared to do so. The District Clerk’s record reflects that no

request was filed by trial counsel for the state to provide notice to Appellant of

extraneous offenses. Tex. Code Crim. Proc., Art 37.07, Sec. (3)(g). Texas Rules of

Evidence, 404(b). Counsel did file a Motion for Discovery of Punishment Evidence

that did not specifically request notice of extraneous offenses, but did not even file

this motion until the day the trial began. (CR:32-35)

      Indeed, the trial court voiced its concerns when trial counsel was attempting

to introduce an exhibit:

      THE COURT: My gosh. You wouldn’t have – if that was your defense
      in the middle of the trial, don’t you think you might have looked that
      up? Are you trying to do a Sixth Amendment ineffective assistance on
      purpose or what? (RR5: 89)

      In terms of prejudice, it would be difficult to imagine a more damaging

omission than failure to make objections that would have prevented a minimum of

fourteen extraneous offenses and numerous bad acts from being presented to the jury

or at least have preserved the issue for appellate review.

BRIEF FOR APPELLANT-16
                             ISSUE NUMBER TWO

THE JUDGMENT OF THE COURT IS INCONSISTENT WITH THE ACTUAL
COURT’S RECORD AND SHOULD BE REFORMED

      The trial court judgment reflects that Appellant pled true to each of the

enhancment paragraphs. (CR: 68) However, the trial record shows that Appellant

pled untrue to all of these paragraphs with the exception of paragraph two. (RR4: 59-

60) Appellant requests that the Judgment be reformed to reflect this fact.




BRIEF FOR APPELLANT-17
                                      PRAYER



      WHEREFORE, Premises considered, it is respectfully requested that this case

be reversed and remanded to the trial court and that the Court’s Judgment be reformed

to reflect Appellant’s actual pleas to the enhancement paragraphs.


                                             Respectfully submitted,


                                             /s/ C. Wayne Huff__________
                                             C. Wayne Huff
                                             P.O. Box 2334
                                             Boerne, Texas 78006
                                             Bar Card No. 10180600
                                             (214) 803-4127
                                             Facsimile (830) 230-5567
                                             cwhuff@aol.com


                        CERTIFICATE OF SERVICE
     The undersigned attorney of record of Appellant hereby certifies that a true and

correct copy of the foregoing motion was served on the District Attorney for Comal

County, Texas, at 150 N. Seguin #307, New Braunfels, TX 78130 on the same date

that it was efiled with this court.

      Signed this the 8th day of December, 2015.


                                             /s/ C. Wayne Huff_____________
                                             C. Wayne Huff

BRIEF FOR APPELLANT-18
                     CERTIFICATE OF COMPLIANCE

      I hereby certify that the foregoing document is in compliance with Rule of

Appellate Procedure 9.4(i)(2)(B) in that it contains 3332 words.



                                            /s/ C. Wayne Huff_________
                                            C. Wayne Huff




BRIEF FOR APPELLANT-19
