                                                                                          ACCEPTED
                                                                                      01-15-00369-CR
                                                                           FIRST COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                  8/3/2015 2:37:55 PM
                                                                                CHRISTOPHER PRINE
                                                                                               CLERK

                         No. 01-15-00369-CR

                                                                FILED IN
                                             1st OF
IN THE COURT OF APPEALS FOR THE FIRST DISTRICT   COURT OF APPEALS
                                                    TEXAS
                                                 HOUSTON, TEXAS
                  AT HOUSTON, TEXAS
                                                          8/3/2015 2:37:55 PM
                                                          CHRISTOPHER A. PRINE
                                                                  Clerk


                     DANIEL WAYNE TOVAR
                           Appellant

                                  vs.

                      THE STATE OF TEXAS
                            Appellee



 On appeal from the 20th Judicial District Court of Milam County, Texas
           The Honorable John Youngblood, Judge Presiding
                            Cause No. 23522



                       APPELLANT’S BRIEF



                           Counsel of Record;

                           Tyler Pennington
                        State Bar No. 24076617
                        Pennington Law PLLC
                       106 S. Harris St. Suite 125
                        Round Rock, TX 78664
                          PH: (512) 255-2733
                         FAX: (866) 736-3690
                     tylerpenningtonlawpIlc.net
                    ATTORNEY FOR APPELLANT
              IDENTITY OF PARTIES AND COUNSEL

PARTIES TO THE JUDGMENT:


APPELLANT:                Daniel Wayne Tovar
                          Holliday Unit
                          295 I.H. 45 North
                          Huntsville, TX 77320

APPELLEE;                 W.W. Torrey
                          District Attorney
                          District Attorney’s Office of Milarn County, Texas
                          204 N. Central
                          Cameron, TX 76520
                          PH: (254) 697-7013
                          FAX: (254) 697-7016
                          wwtorreymilamcounty.net

PRESIDING JUDGE:          The Honorable John Youngblood


DEFENSE TRIAL COUNSEL: Perry D. Cortese
                       P.O. Box 883
                       Little River, TX 76554

TRIAL PROSECUTORS:        W.W. Torrey
                          District Attorney Milam County, Texas
                          204 N. Central
                          Cameron, TX 76520

APPELLANT COUNSEL:        Tyler Pennington
                          Pennington Law PLLC
                          106 5. Harris St., Suite 125
                          Round Rock, TX 78664
                          PH: (512) 255-2733
                          FAX: (866) 736-3690
                          tyIerpenningtonlawplIc.net
                     TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL   .




TABLE OF CONTENTS                                           ii

INDEX OF AUTHORITIES                                  iii-iv

STATEMENT OF CASE                                      v-vi

STATEMENT REGARDING ORAL ARGUMENT                        vi

ISSUE PRESENTED                                          vi

    TRIAL COUNSEL’S REPRESENTATION AT APPELLANT’S
    SENTENCING HEARING WAS DEFICIENT AND THE DEFICIENCY
    WAS SO SERIOUS THAT IT PREJUDICED APPELLANT’S DEFENSE
    AND DENIED APPELLANT’S RIGHT TO EFFECTIVE ASSISTANCE
    OF COUNSEL


STATEMENT OF FACTS                                       1-3

SUMMARY OF THE ARGUMENT                                      3

ARGUMENT AND AUTHORITIES                               4-Il

PRAYER                                                    11

CERTIFICATE OF SERVICE                                      12

CERTIFICATE OF COMPLIANCE WITH WORD LIMIT                   12




                                                                 11
                         INDEX OF AUTHORITIES


TEXAS CASES

Haynes v. State, 790 S.W.2d 824 (Tex. Crirn. App. 1990)                                       4

Ex Parte Torres, 943 S.W.2d 469, (Tex. Crim. App. 1997)                                       4

Ex Parte Fe/ton, 815 S.W.2d 733 (Tex. Crirn. App. 1991)                                4, 11

Robinson v. State, 16 S.W.3d 808 (Tex. Crim. App. 2000)                                       5

Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993)                                         5

Woods v. State, 59 S.W.3d 833 (Tex. App     —    Texarkana, 2001, pet. granted)

                                                                                      5,7,8

Hernandez v. State, 726 S.W.2d. 53 (Tex. Crim. App. 1986)                                     6

In the Matter ofR.D.B, A Juveni/e, 20 S.W.3d 255 (Tex. App           —   Texarkana,

2000)                                                                                  6, 7, 8
                                                           [14th
In re G.MP., 909 S.W. 2d 198 (Tex. App.      —   Houston           Dist. 1995, no writ) 10
                                                                                         ..




FEDERAL CASES

Powel/ v. A/abama, 287 U.S. 45 (1932)                                                             4

McMann v. Richardson, 397 U.s. 759 (1970)                                                         4

Anders v. Caflfornia, 386 U.S. 738 (1967)                                                         4

Strickland v. Washington, 466 U.s. 668 (1984)                                         5, 6, 11
                                 (5th
Moore v. Johnson, 194 F.3d 586          Cir. 1999)                                                7

 Wigginsv. Smith, etal. 539 U.S. 510 (2003)                                                       9


                                                                                                  III
STATUTES AND RULES

TEX. PEN. CODE §22.0 1              v

U.S. CONST. AMEND VI            4, 11

U.S. CONST. AMEND XIII          4, 11

TEX. CONST. ART. I,   §    10   4,11

TEX. R. APP. P. §33.1(a)            5

TEX.R.EVIDENCE 405(a)(1)           10




                                        iv
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, Daniel Wayne Tovar, Appellant, and respectfully submits

this brief alleging that his trial counsel’s performance at the sentencing hearing on

his Motion to Proceed with Adjudication was ineffective.



                          STATEMENT OF THE CASE

      On February 19, 2013, Daniel Wayne Tovar entered a plea agreement to

receive three years deferred adjudication probation for a third-degree felony assault

family violence —impeding breath or circulation under TEX. PEN. CODE         §   22.01.

The Court entered an Order of Deferred Adjudication on the same date. (Clerk’s

Record Volume 1, pages 9-22). On November 7, 2014 the State filed a Motion to

Proceed with Adjudication alleging that Mr. Tovar had violated various conditions

of his three-year deferred adjudication. (Clerk’s Record Volume 1, pages 34-38).

       Mr. Tovar entered into a plea of true to the allegations in the Motion to

Proceed with Adjudication on February 12, 2015, and with assistance of trial

counsel elected to go to the Court for sentencing. (Clerk’s Record Volume I, pages

47-49).

       The sentencing hearing was set for March 13, 2015. (Reporter’s Record

Volume 3, page 7, line 9). At the conclusion of the sentencing hearing the Court

assessed his punishment at eight years in the Texas Department of Corrections



                                                                                          V
(Clerk’s Record Volume 1, pages 52-52). Mr. Tovar, through his trial counsel

filed a Motion for New Trial on March 25, 2015 and Notice of Appeal on March

26, 2015. (Clerk’s Record Volume 1, pages 57-58 and page 55).



                 STATEMENT REGARDING ORAL ARGUMENT

      Oral argument will not aid the court’s decisional process in this appeal



                              ISSUE PRESENTED

          TRIAL COUNSEL’S REPRESENTATION AT APPELLANT’S
      SENTENCING HEARING WAS DEFICIENT AND THE DEFICIENCY
      WAS SO SERIOUS THAT IT PREJUDICED APPELLANT’S DEFENSE
      AND DENIED APPELLANT’S RIGHT TO EFFECTIVE ASSISTANCE
      OF COUNSEL




                                                                                 vi
                        STATEMENT OF THE FACTS

      Daniel Wayne Tovar was on a three-year deferred adjudication for third-

degree felony assault family violence —impeding breath or circulation. The State

filed a Motion to Proceed with Adjudication alleging various violations of his

deferred adjudication. Mr. Tovar pled true to the allegations in the State’s Motion

to Proceed with Adjudication and then proceeded to sentencing for the trial court to

assess his punishment. (Clerk’s Record Volume 1, pages 9-22, 34-38 and 47-49).

      Prior to the sentencing hearing a Pre-Sentencing Investigation (PSI) was

conducted by Mrs. Lekethia Sims, Mr. Tovar’s probation officer. (Reporter’s

Record Volume 4, page 4, lines 11-12). The State asked the Court to take notice of

the PSI, and they also called as witnesses Chief Thomas Harris of Rockdale, Texas

Police Department, and Lieutenant J.D. Newlin of Rockdale, Texas Police

Department. (Reporter’s Record Volume 4, page 5, lines 1-4).

      Both Chief Harris and Lieutenant Newlin testified on the State’s direct

examination that Mr. Tovar had a “bad” reputation in the community for being

peaceful and law abiding. Mr. Tovar’s trial counsel did not conduct any cross-

examination of either Chief Harris or Lieutenant Newlin. (Reporter’s Record

Volume 4, page 6, lines 5-10 and page 7, lines 8-12).

       Mr. Tovar testified on direct examination through his trial counsel that he

has had both drug and alcohol issues for the past six or seven years. (Reporter’s



                                                                                       1
Record Volume 4, page 8, lines 8-14). Mr. Tovar also testified that he has

discussed attending rehab with his probation officer Mrs. Sims. He further testified

that he believes a rehab program would be good for him (Reporter’s Record

Volume 4, page 8, lines 16-23). On the State’s cross-examination ofMr. Tovar,

they elicited that Mrs. Sims had previously discussed rehab with Mr. Tovar and

that he was not interested in attending the rehab. (Reporter’s Record Volume 4,

page 11, lines 3-9). Mr. Tovar testified on cross-examination by the State that he

was unaware of Mrs. Sims’ recommendation of a sentence in the Texas

Department of Corrections in the PSI. (Reporter’s Record Volume 4, page 11, lines

22-25).

      Mr. Tovar’s trial counsel argued in closing that Mr. Tovar has had ongoing

problems with drugs and alcohol since he was about fifteen-years old. (Reporter’s

Record Volume 4, page 13, lines 20-22). He further argued that Mr. Tovar has

some limitations due to learning disabilities. (Reporter’s Record Volume 4, page

14, lines 5-7). The State focused a majority of their closing argument on Mrs.

Sims’ PSI by pointing out specific pages in the PSI detailing Mr. Tovar’s lengthy

criminal history. (Reporter’s Record Volume 4, page 14, lines 18-25 and page 15,

lines 1-25). Neither Mr. Tovar nor the State called Mrs. Sims as a witness.

       The judge stated in his ruling stated that he “had hoped that Mrs. Sims

would testify and [he] could ask about it”. The Court further stated that Mr. Tovar



                                                                                       2
represented in the sentencing hearing that he had never been provided a previous

opportunity for treatment, but that the PSI stated that he had previously attended

treatment which resulted in him being terminated from the program after thirty

days. Finally, the Court made the determination that Mr. Tovar was terminated

from the program because he did not want to be in treatment and just wanted to do

his jail time. The Court came to these conclusions upon reviewing allegations in

the PSI. (Reporter’s Record Volume 4, page 16, lines 4-14). The Court agreed

with Mr. Tovar’s trial counsel that Mr. Tovar had a problem with substance abuse.

(Reporter’s Record Volume 4, page 16, lines 19-20). Neither Mr. Tovar nor the

State called any substance abuse witnesses.

      Based upon the above evidence at the sentencing hearing the trial Court

assessed Mr. Tovar’s sentence at twenty-four months in the Texas Department of

Corrections for the state jail felony burglary of a building and eight years in the

Texas Department of Corrections on the third-degree felony assault family

violence —impeding breath or circulation. (Reporter’s Record Volume 4, page 17,

lines 10-15).



                                Summary of the Argument

Issue: Trial counsel’s performance at Appellant’s sentencing hearing was
deficient and the deficiency was so serious that it prejudiced Appellant’s defense
and denied Appellant’s right to effective assistance of counsel.



                                                                                      3
                              Argument and Authorities

      The burden of proof in an ineffective assistance of counsel claim rests with

the defendant who must prove ineffective assistance of counsel by a preponderance

of the evidence. Haynes v. State, 790 S.W.2d 824, 827 (Tex. Crim. App. 1990). In

order to determine whether the defendant has met his burden, the reviewing court

looks to the totality of circumstances of the case in evaluating the reasonableness

of the attorney’s conduct. Lx Parte Fthon, 815 S.W.2d, 733, 735 (Tex. Crim. App.

1991).

         The right to assistance of counsel is guaranteed by the Sixth and Fourteen

Amendments of the United States Constitution as well as the Article 1, Section 10

of the Texas Constitution. The right to be represented by counsel is by far the most

important of a defendant’s constitutional rights because it affects the ability of a

defendant to assert myriad other rights. Powell v. Alabama, 287 U.S. 45, 53

(1932).

         A defendant is constitutionally entitled to have effective counsel acting in

the role of an advocate. Anders v. California, 386 U.S. 738, 743 (1967). This right

to assistance of counsel has long been understood to include a “right to effective

assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, n. 14(1970).

         In most cases, a writ of habeas corpus is the preferred method for raising

ineffective assistance of counsel claims. Ex Parte Torres, 943 S.W.2d 469, 592-93



                                                                                        4
(Tex. Crim. App. 1997). This is not to say that a claim of ineffective assistance of

counsel cannot be raised on direct appeal. Reyes v. State, 849 S.W.2d 812, 815

(Tex. Crim. App. 1993). The direct appeal court has jurisdiction to hear ineffective

assistance of counsel claims. Woods v. State, 59 S.W.3d 833, 835 (Tex. App     —




Texarkana, 2001, pet. granted). Texas Rules of Appellate procedure generally

require that in order to raise a complaint on appeal the complaint must be

preserved in the trial court by asserting a timely objection or motion. TEX. R.

APP. P. §33.1(a). However, ineffective assistance of counsel claims are exempted

from this rule of error preservation. Robinson v. State, 16 S.W.3d 808, 812 (Tex.

Crim. App. 2000).

       The court in Strickland v. Washington set forth the groundwork for

addressing an ineffective assistance of counsel claim. Stricklandv. Washington,

466 U.S. 668 (1984). To prove a claim of ineffective assistance of counsel, the

defendant must show by the preponderance of the evidence that his counsel’s

representation was deficient and that the deficient performance was so serious that

it prejudiced his defense so as to provide a fair trial. Id at 687-696. The proper

standard for judging attorney performance is that the assistance should be

reasonably effective considering all the circumstances. The defendant must show

that counsel’s representation fell below an objective standard of reasonableness. Id

at 687-691. The defendant must then show that there is a reasonable probability



                                                                                       S
that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different to prove that the deficient performance prejudiced the

defendant.

      The state of Texas has applies the Strickland test and has recognized that it

applies to all stages of the criminal trial. In fact, Strickland applies to a claim of

deficient attorney performance at a non-capital sentencing hearing. See [fernandez

v. State, 726 S.W.2d. 53, 56 (Tex. Crim. App. 986).

      In the Matter ofR.D.B recognized that defense counsel’s failure to get a

mental health expert was ineffective. In the Matter ofR.D.B, A Juvenile, 20

S.W.3d 255 (Tex. App     —   Texarkana, 2000). In R.D.B, the State called the only

witnesses who testified at the release or transfer hearing was Leonard Cucolo,

program administrator for the Texas Youth Commission. This witness testified that

R.D.B. has a brain injury. The witness then testified regarding a psychological

evaluation conducted by Larry’ Reue and Reue’s conclusion that most of R.D.B.’s

behavior was a result of anti-social values and characteristics rather than the brain

disorder. Cucolo testified that in Reue’s opinion R.D.B was at a high risk of re

offending. Id at 256-257.

       The State relied heavily on this testimony at sentencing but did not actually

call any of the experts involved with the report. R.D.B.’s counsel did not call any

of the individuals involved in the report, nor did they call their own expert. The



                                                                                         6
court in R.D.B determined that if defense counsel would have called an expert

witness it would have required the State to call their own mental health expert to

testify. Defense counsel would then have been able to better test the conclusions

contained in the report. The court in R.D.B. found defense counsel ineffective. Id at

261.

         In JJ’oods v. State the record contained a substantial amount of information

regarding Woods’ previous mental health history. Woods           i   State, 59 S.W.3d 833

(Tex. App      —   Texarkana, 2001, pet. granted). The Court in Woods determined that

based on the facts, it was defense counsel’s obligation to request a court-appointed

mental health expert in order to render effective assistance of counsel. Id at 838.

Defense counsel had previously filed a motion for psychiatric examination, where

counsel refers to Woods’ past psychiatric history, therefore counsel was aware of

Woods mental health histon’. Idat 836. See also Moore v. Johnson, 194 F.3d 586
(5th
       Cir. 1999) (finding defense counsel ineffective for failing to investigate,

develop, or present mitigating evidence at punishment despite evidence of

defendant’s brain damage.).

         Mr. Tovar’s case is similar to Woods in that Tovar’s counsel knew of his

past history of substance and alcohol abuse, as evidenced by the following line of

questioning:

         “Q.       Okay. An one   --   how long has drugs been an issue in your life?



                                                                                            7
      A.     The last maybe six, seven years.

      Q. (BY MR. CORTESE) How about alcohol? Has alcohol          been an issue in

your life, too?

       A.     Uh-huh, since I was a teenager.” (Reporter’s Record Volume 4, page

8, lines 8-15).

       Additionally, Mr. Tovar’s counsel argued in closing that “he’s had an

ongoing problem with drugs and alcohol since he was about 15 years old.”

(Reporter’s Record Volume 4. page 13, lines 20-22). He further argued that Mr.

Tovar has some learning disabilities, and does not read well which causes

limitations. (Reporter’s Record Volume 4, page 14, lines 5-7). As in Woods, Mr.

Tovar’s counsel clearly was aware of his history of substance and alcohol abuse

along with his mental health history. However, he failed to request a court

appointed substance abuse or mental health expert to testi& at sentencing, and, like

in Woods, his failure to do so rendered his representation ineffective.

       Much like in R.D.B, the State in Mr. Tovar’s case reLied heavily on a pre

sentence investigation conducted by his probation officer, Mrs. Sims. However,

unlike in R.D.B., neither Mr. Tovar’s counsel nor the State called anyone involved

with the report. In fact, the Court in Tovar even mentioned that it would had hoped

that Mrs. Sims would have testified. (Reporter’s Record Volume 4, page 16, lines




                                                                                     B
5-7). The Court also agreed with Mr. Tovar’s counsel that he had a problem with

substance abuse. (Reporter’s Record Volume 4, page 14, lines 19-20).

       Mr. Tovar’s counsel not only failed to adequately challenge Mrs. Sims’

report at the sentencing hearing, but the record is void of any investigation counsel

conducted in order to verify or to challenge the statements contained in the report.

Furthermore, there is nothing in the record, which suggests that counsel did an

investigation independent of the PSI. See Wiggins v. Smith, et aL 539 U.S. 510

(2003) (finding counsel ineffective where the only investigation into mitigation

evidence was a PSI and department of social services records. The Court found

counsel’s failure to conduct investigation independent of the PSI and social

services records to be ineffective.).

       Failure of Mr. Tovar’s counsel to call Mrs. Sims to testify was deficient and

prejudiced Mr. Tovar’s defense of presenting a treatment option rather than a

prison option for sentencing. Had Mr. Tovar’s counsel called Mrs. Sims and

retained a court appointed expert to review the report and to testify to Mr. Tovar’s

substance abuse, alcohol abuse, and mental health history, it would have required

the State to call its own mental health experts to testify and would have enabled

defense counsel to better test the conclusions contained in the report. See R.D.B at

261.




                                                                                        9
      Not only did Mr. Tovar’s counsel fail to get a court appointed expert to

review the PSI and to testify’, but he failed to challenge reputation testimony by

Chief Harris or Lieutenant Newlin who both stated that Mr. Tovar’s reputation for

being law abiding was “bad”. (Reporter’s Record Volume 4, page 5, lines 1-4).

Both Chief Harris and Lieutenant Newlin failed to testify’ as to how they

specifically had knowledge of Mr. Tovar’s reputation and Mr. Tovar’s counsel

failed to cross-examine both Harris and Newlin on how they formed the basis of
                                                                                [14th
this opinion. See In re G.MP.. 909 S.W2d 198, 209 (Tex. App.      —   Houston

Dist. 1995, no writ) and TEX. R. EVIDENCE 405(a)(1). Furthermore, Mr.

Tovar’s counsel called no witnesses to rebut the claims made by Harris and

Newl in.

       Due to the above, Mr. Tovar has shown by a preponderance of the evidence

that his counsel’s performance was deficient and this deficient performance

prejudiced Mr. Tovar and deprived him of a fair trial. But for Mr. Tovar’s trial

counsel failing to request a court appointed expert or calling Mrs. Sims as a

witness, the Court would have been able to hear more detailed evidence of Mr.

Tovar’s substance abuse and mental health history along with why a treatment

option versus a lengthy prison sentence may have been more appropriate.

       Additionally, but for Mr. Tovar’s counsel failing to challenge or rebut the

reputation evidence by Chief Harris and Lieutenant Newlin, the Court could have



                                                                                        10
assessed whether the reputation evidence was credible and would have likely heard

not only negative evidence presented by the State of Mr. Tovar’s character, but

positive evidence of his character as well. There is a reasonable probability that

had counsel presented the above evidence it would have caused a different result in

Mr. Tovar’s sentencing. A reasonable probability is a probability sufficient to

undermine confidence in the outcome of the proceeding. See Strickland at 691-696.

      In reviewing the totality of circumstances including the failure to call the

PSI witness, failure to get a court appointed expert, and failure to challenge

reputation evidence, Mr. Tovar’s counsel’s performance was affirmatively not

reasonable. See Ex Pane Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991).

Therefore, Mr. Tovar’s right to counsel as guaranteed by the Sixth and Fourteen

Amendments of the United States Constitution as well as the Article 1, Section 10

of the Texas Constitution was violated.

                                      PRAYER

       WHEREFORE, PREMISIS CONSIDERED, Appellant Daniel Wayne

Tovar, asks the court to reverse the sentence on this cause and remand to the trial

court for a new sentencing hearing.




                                                                                      11
                         CERTIFICATE OF SERVICE

       The undersigned counsel hereby certifies that a true and correct copy of this
brief was served by mail to counsel for the State, W.W. Torrey, District Attorney,
Milam County District Attorney’s Office 204 N. Central Cameron, TX 76520, PH:
(254) 697-7013, FAX: (254) 697-7016 on August 3,2015 via facsimile
transmission.




                   Tyler Pennington
                   Attorney for Appellant


          CERTIFICATE OF COMPLIANCE WITH WORD LIMIT

       The undersigned counsel represents that they have relied on the word count
tool in the Word document and that this brief is a total of 2606 words.




                    Tyler Pennington
                    Attorney for Appellant




                                                                                       12
