                                                                     ACCEPTED
                                                                 03-15-00385-CR
                                                                         8150331
                                                      THIRD COURT OF APPEALS
                                                                 AUSTIN, TEXAS
                                                            12/9/2015 9:11:37 AM
                                                               JEFFREY D. KYLE
                                                                          CLERK
                  NO. 03-15-00385-CR

               IN THE COURT OF APPEALS         FILED IN
                                        3rd COURT OF APPEALS
                                            AUSTIN, TEXAS
         THIRD DISTRICT OF TEXAS AT AUSTIN
                                        12/9/2015 9:11:37 AM
                                          JEFFREY D. KYLE
                                                Clerk
***************************************************

                   CAUSE NO. 72,941

          IN THE 27TH JUDICIAL DISTRICT OF

                  BELL COUNTY, TEXAS

***************************************************

 KARL LEE WIGGINS                           APPELLANT

                           VS

 THE STATE OF TEXAS                          APPELLEE

***************************************************

                 APPELLANT’S BRIEF
___________________________________________________

       APPEAL OF JUDGMENT IN CAUSE NO. 72,941
           FROM THE 27TH JUDICIAL DISTRICT
                OF BELL COUNTY, TEXAS
___________________________________________________
NO ORAL ARGUMENT REQUESTED
                           JAMES H. KREIMEYER
                           ATTORNEY FOR APPELLANT
                           P.O. BOX 727
                           BELTON, TEXAS 76513
                           (254) 939-9393
                           (254) 939-2870 FAX
                           T.S.B. #11722000
                           jkreime@vvm.com
             IDENTITY OF PARTIES AND COUNSEL

Judge at Trial:             Hon. John Gauntt
                            27th Judicial District
                            P.O. Box 324
                            Belton, Texas 76513

Prosecutors:                 Nelson Barnes &
                             Terry Clark
                             Asst. District Attorneys
                             P.O. 540
                             Belton, Texas 76513

Defense Attorneys            Joseph Wiener, Jr.
at Hearing                   Attorney at Law
                             P.O. Box 298
                             Belton, TX 76513

                             Bob Barina
                             Attorney at Law
                             455 E. C.T.Expr. Ste.104
                             Harker Heights, TX 76548

Attorney for Appellant:      James H. Kreimeyer
                             Attorney at Law
                             P.O. Box 727
                             Belton, TX 76513

Attorney for Appellee:       Bob Odom
                             Asst. District Attorney
                             P.O. Box 540
                             Belton, Texas 76513

Appellant:                   Karl Lee Wiggins
                             TDCJ#02014439
                             Bill Clements Unit
                             9601 Spur 591
                             Amarillo, TX 79107-9606




                            ii
                 TABLE OF CONTENTS
                                       PAGE NO.


IDENTITY OF PARTIES AND COUNSEL. . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . .iii

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

STATEMENT OF THE CASE. . . . . . . . . . . .1-2

ISSUES PRESENTED. . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . 3-5

SUMMARY OF THE ARGUMENT. . . . . . . . . . . .5

ARGUMENT . . . . . . . . . . . . . . . . . 6-12

PRAYER. . . . . . . . . . . . . . . . . . . .13

CERTIFICATE OF COMPLIANCE. . . . . . . . . . 14

CERTIFICATE OF SERVICE. . . . . . . . . . . .15




                         iii
               INDEX OF AUTHORITIES

CASES:                                    PAGE NO.

Trevino v. Thaler, 133 S. Ct. 1911, 1913,
    185 L. Ed. 2d 1044 (2013). . . . . . . . . 5-6

Milburn v. State, 15 S.W.3d 267, 270
    (Tex. App. Houston [14th Dist] 2000,
    pet. ref’d.). . . . . . . . . . . . . . . .7-8

Torres v. State, No. 01-95-00862-CR, 2000
    WL 1877641(Tex. App. Houston [1st Dist.]
    pet. ref’d)(mem. Op., not designated for
    publication). . . . . . . . . . . . . . . 9-11

Strickland v. Washington, 446 U.S. 668, 694,
    (1984). . . . . . . . . . . . . . . . . . . 12




                         iv
                     NO.03-15-00385-CR

                            IN THE

                      COURT OF APPEALS

                  THIRD DISTRICT OF TEXAS

                          AT AUSTIN

     *****************************************************

      KARL LEE WIGGINS                         APPELLANT

                               VS.

      THE STATE OF TEXAS                        APPELLEE
      ******************************************************

                     APPELLANT’S BRIEF

                    STATEMENT OF THE CASE


      Appellant, KARL LEE WIGGNINS, on March 30, 2015

entered a plea of guilty to the offense of murder.

(R.R. IV at 9-10)

      On May 28, 2015 the trial court found appellant

guilty, and assessed appellant’s punishment at life

in    the   Texas    Department      of   Criminal   Justice—

Institutional Division. (R.R. AV5 at 12)




                               1
    The trial court denied a motion for new trial on

the record at the time of the hearing. (R.R. VI at

53) A supplemental notice of appeal was filed on

behalf of appellant on August 5, 2015.



       STATEMENT REGARDING ORAL ARGUMENT

    Appellant does not request oral argument.



                ISSUE PRESENTED

    Appellant’s trial attorneys rendered ineffective

assistance of counsel at punishment by not presenting

the testimony of the Texas Department of Public

Safety Forensic Scientist concerning the malfunction

of the quarter-cock safety noted by the scientist

during test firing of the alleged murder weapon.

(R.R. VI at DX 1)(R.R. VI at 18)




                          2
                    STATEMENT OF FACTS

     During a hearing on appellant’s motion for new

trial, appellant’s attorney Joseph C. Wiener was

called by appellant. (R.R. VI at 14) A ballistics

report from the Texas Department of Public Safety

Crime Laboratory, Defendant’s Exhibit One, was shown

to   Mr.    Wiener     concerning        a    malfunction         of   the

quarter-cock safety noted during test firing. (R.R.

VI   at    17)(R.R.    VII    at       Def.   Ex.    1)   Mr.      Wiener

acknowledged the safety that was not working properly

could have caused the gun to go off accidentally.

(R.R. VI at 18)

     Co-counsel, Bobby Barina, appointed by the trial

court on March 9, 2015 (Cl. R. at 24) testified at

the motion for new trial. (R.R. VI at 31) When

questioned     about    the   Texas          Department      of    Public

Safety     (DPS)      Crime   Laboratory            report        on   the

ballistics of the weapon, Barina recalled the State

had a gentleman from a local gun shop who testified

about     testing    the   weapon       for    trigger       pull.     The



                                   3
witness found the trigger pull to be heavy. Mr.

Barina agreed he had seen the DPS ballistic report.

(Def. Ex. 1) Mr. Barina recalled the gun shop owner

called by the State did not have a problem with the

safety on the weapon. When asked if he explored

getting the DPS expert, Mr. Barina allowed as how

that was one of the things Mr. Wiener was to handle.

(R.R. VI at 36) Mr. Barina agreed he knew what was

in the DPS report and discussed it with Appellant

and Mr. Wiener. At that discussion it was apparently

decided to look into the report only if the case went

to trial. (R.R. VI at 38)

    During the punishment hearing on May 28, 2015

the State called    David Cheadle, employed at Guns

Galore (R.R. V at 10) as manager. There is not a

gunsmith employed at the store. Mr. Cheadle does

simple repairs. (R.R. V          at 11) Mr.    Cheadle was

brought   a   weapon,   by   the    district    attorney’s

investigator. The weapon was identified as State’s

Exhibit 2, a .25 Tangoglio Armalite handgun. (R.R. V



                             4
at 12)(R.R. VII at State’s Ex. 2) Being asked to test

the trigger pull of the weapon, Cheadle related the

trigger pull on State’s Ex. 2 was not a hair trigger

[3½ pounds]. (R.R. V at 13) The tested trigger pull

on State’s Ex. 2 was 7¼ pounds. (R.R. V at 15)            When

examined by appellant, Cheadle related he had not

been made aware of the safety problem found by the

DPS lab and was only testifying about the trigger

pull. (R.R. V at 16)



                SUMMARY OF THE ARGUMENT

    By not presenting to the trial court the

evidence   of    the   Texas   Department   of   Public

Safety scientist’s conclusions concerning the

firearm alleged to have been used, trial counsel

for appellant rendered ineffective assistance of

counsel at the punishment phase of appellant’s

plea of guilty.




                               5
                           ARGUMENT

      In argument on the motion for new trial, it was

conceded by appellant that counsel was ineffective,

had   not   be    shown.      This       illustrates   the    problem

arising from requiring a motion for new trial before

the appellate record is available; as pointed out by

the Supreme Court of the United States in Trevino v.

Thaler. In Trevino, the Supreme Court noted: Texas

procedures       make    it      nearly      impossible      for   an

ineffective-assistance-of-trial-counsel claim to be

presented    on     direct       review.      The   nature    of   an

ineffective-assistance claim means that the trial

record is likely to be insufficient to support the

claim. And a motion for a new trial to develop the

record is usually inadequate because of Texas rules

regarding    time       limits       on    the   filing,     and   the

disposal, of such motions and the availability of

trial transcripts.            Trevino v. Thaler, 133 C. Ct.

1911, 1913, 185 L. Ed. 2d 1044 (2013)




                                     6
    Had appellant known of the trigger pull issue at

the motion for new trial hearing, a better record

could have been made concerning the firearm alleged

to have been the instrumentality causing the death

of the complainant. The trial attorneys could have

been questioned more thoroughly about the fact the

trial attorneys for appellant did not obtain and

present the evidence of the DPS Crime Lab expert to

explain the safety problem and determine the accuracy

of the trigger pull evidence from the gun store

manager.

    Appellant cannot question the effectiveness of

entering a plea of guilty or the finding of guilty

by the trial court. The issue is: Were his trial

attorneys ineffective by not securing the testimony

and opinions of the DPS Crime Lab firearms expert to

counteract the testimony of the gun store manager?

    When   asked   about   this   testimony,   Mr.   Barina

deferred to his co-counsel. (R.R. VI at 37) Mr.

Barina’s only explanation concerning the DPS Crime



                            7
Lab report was, basically, if there was not a plea,

then a request for additional time would be made.

This    conversation        was     on        March    30,        2015.    The

punishment hearing in May of 2015 was where the issue

of the trigger pull was stressed by the State as

being a conscious effort by appellant to kill the

complainant. (R.R. AV5 at 6)

       In Milburn v. State, 15 S.W.3d 267, (Tex. App.

Houston    [14th    Dist]     2000,      pet.     ref’d.)          Milburn’s

counsel failed to contact a number of potential

favorable    witnesses        for       the    punishment          phase    of

Milburn’s trial. The Houston Court of Appeals noted

the     sentencing       process         consists           of      weighing

mitigating    and       aggravating            factors,       and     making

adjustments        in   the       severity        of        the     sentence

consistent     with      this       calculus.          In     that        case,

Milburn's trial counsel presented no evidence of

mitigating factors for the jury to balance against

the    aggravating      factors         presented      by     the     State.

Indeed, Milburn's counsel performed no investigation



                                    8
into any possible mitigating factors and failed to

contact   even   a   single   family    member   or   friend,

despite   the    availability      of    such    mitigation

evidence. Milburn, 15 S.W.3d at 270. (Tex. App. 2000)

    Although appellant’s trial counsel put on some

testimony at punishment, nothing was done to rebut

the firearm evidence given by the gun store manager.

The firearm evidence as to trigger pull was relied

upon by the State in the final remarks to the trial

court to show evidence of seven (7) pounds of trigger

pull to rule out accidental or unintentional firing

of the weapon. This was despite the evidence of the

victim’s common law wife and sister of appellant,

Elizabeth Gallagher, that appellant cried: “I didn’t

mean to do it. I didn’t mean to do it.” (R.R. V at

35) The testimony of the          DPS expert would have

injected the issue of the problem with the quarter-

cock safety giving consideration of a faulty safety

as supporting appellant’s not meaning to do it. This

evidence was not produced by trial counsel taking



                              9
the position that evidence would only have been

presented in the event of a trial. (R.R. VI at 38)

    The Court’s attention is directed to Torres v.

State, No. 01-95-00862-CR, 2000 WL 1877641 (Tex. App.

Houston   [1st   Dist.]   pet.   ref’d)   (mem.   op.,   not

designated for publication). There, Torres and his

companion Burnett robbed and shot the victim. The

shooting was with a 9mm pistol. Torres maintained he

was not the shooter. The pistol attributed to Torres

was not the weapon that shot the victim. After an

open plea to aggravated robbery, Torres alleged his

attorney was ineffective at the punishment phase of

his plea because he did not present the ballistic

evidence showing Torres’ weapon did not fire the

shots at the victim. The defense attorney for Torres

testified he saw the ballistics report and even

discussed it with the prosecutor, but did not think

it was relevant because the prosecutor suggested the

appellant and Burnett could have switched guns after




                            10
the    shooting,   when    they        drove    off    in    the    car

together. Torres, 2000 WL 1877641, at *4.

      In reversing and remanding for a new punishment

hearing, the Court of Appeals pointed out: Failure

to    present   mitigating    evidence          at    punishment    is

ineffective      assistance        unless       counsel      made    a

reasonable      decision     to        forego    presentation       of

mitigating      evidence     after        evaluating        available

testimony. Even though defense counsel investigated

the ballistics evidence, it was unreasonable for him

to decide not to present the report at the punishment

hearing. This evidence would have helped the Torres'

only defense-that he was not the shooter. Torres,

2000 WL 1877641, at *4

          The same reasoning should be applied to

appellant. The fact is, the weapon had a safety

problem and the DPS scientist is certainly more

qualified to express opinions about firearms than

the gun store manager used by the State. Had trial

counsel subpoenaed the state firearms expert making



                                  11
the trial court aware of the safety problem with the

firearm, the trial court would probably not have seen

fit to impose the maximum sentence. When this is

coupled with the emphasis put on the trigger pull by

the State to show a conscience effort by appellant

to   kill   the    complainant,       even      though     appellant

immediately after the shot stated he did not mean to

do it, a new punishment hearing should be granted

appellant.

     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.    A

reasonable        probability        is     a     probability

sufficient    to     undermine       confidence       in     the

outcome. Strickland v. Washington, 466 U.S. 668,

694, (1984) Appellant has shown the probability

that less than the maximum sentence would have

been imposed, if the trial judge had all the

mitigating facts before him.



                                12
                    PRAYER

    Wherefore, premises considered, appellant prays

the Court of Appeals to reverse and remand for a new

punishment hearing and for any other relief to which

appellant may be entitled.



                          Respectfully submitted,


                          /s/ James H. Kreimeyer
                          James H. Kreimeyer
                          Counsel for Appellant
                          P.O. Box 727
                          Belton, TX 76513
                          254-939-9393 Fax:939-2870
                          TSB#11722000
                          jkreime@vvm.com




                         13
                 CERTIFICATE OF COMPLIANCE

    I hereby certify that this brief complies with

the length limitations of Texas Rule of Appellate

Procedure   9.4(i)(3)    because        this    brief   contains

1,613   words,    excluding     the     parts    of   the   brief

exempted    by   Texas   Rule      of   Appellate       Procedure

9.4(i)(1); a number which is less than the 15,000

words allowed under Rule 9.4(i)(2)(B).

    I also certify that this brief complies with the

typeface requirements of Texas Rule of Appellate

Procedure 9.4(e) because this brief has been written

with a conventional typeface using a 14-point font

(with footnotes no smaller than 12-points) using

Microsoft Office Word 2010 (version 14), in Courier

New font.


                                /s/ James H. Kreimeyer
                                JAMES H. KREIMEYER




                              14
    CERTIFICATE OF SERVICE TO OPPOSING COUNSEL

    This is to certify a true copy of the foregoing

Appellant’s Brief was furnished to Bob Odom Assistant

District Attorney for Bell County, P.O. Box 540,

Belton, Texas 76513 on the 9th day of December, 2015.


                          /s/ James H. Kreimeyer
                          JAMES H. KREIMEYER




        CERTIFICATE OF SERVICE TO APPELLANT

    This is to certify a true copy of the brief,

mailed to Appellant, Karl Lee Wiggins, Bill Clements

Unit, 9601 Spur 591, Amarillo, TX 79107 on the 9th

day of December, 2015.

                          /s/ James H. Kreimeyer
                          JAMES H. KREIMEYER




                         15
