                                                                                             ACCEPTED
                                                                                         05-15-00379-CR
                                                                              FIFTH COURT OF APPEALS
                                                                                         DALLAS, TEXAS
                                                                                    9/22/2015 9:53:31 AM
                                                                                              LISA MATZ
                                                                                                  CLERK

                          In the Court of Appeals for the
                          Fifth District of Texas at Dallas
                                                                        FILED IN
                                                                 5th COURT OF APPEALS
JUSTIN DALE ROBERTS,                     §                           DALLAS, TEXAS
    Appellant                            §                       9/22/2015 9:53:31 AM
                                         §                             LISA MATZ
v.                                       §          No.   05-15-00379-CR Clerk
                                         §
THE STATE OF TEXAS,                      §
    Appellee                             §

Appealed from Cause Number 199-80668-2013 in the 416th Judicial District Court
of Collin County, Texas, the Honorable Angela Tucker, Judge Presiding.

                                       §§§
                                   STATE’S BRIEF
                                       §§§


                                             GREG WILLIS
                                             Criminal District Attorney
                                             Collin County, Texas

                                             JOHN R. ROLATER, JR.
                                             Assistant Criminal District Attorney
                                             Chief of the Appellate Division

     Oral argument is requested,             ANDREA L. WESTERFELD
     but only if Appellant also              Assistant Criminal District Attorney
     requests oral argument.                 2100 Bloomdale Rd., Suite 200
                                             McKinney, Texas 75071
                                             (972) 548-4323
                                             FAX (214) 491-4860
                                             State Bar No. 24042143
                                             awesterfeld@co.collin.tx.us

                                             THOMAS ASHWORTH & CALLI
                                             BAILEY
                                             Assistant Criminal District Attorneys
                                      TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................... i

INDEX OF AUTHORITIES ................................................................................ iii

STATEMENT REGARDING ORAL ARGUMENT ............................................1

STATEMENT OF THE CASE ..............................................................................1

STATEMENT OF FACTS .....................................................................................1

  The business ........................................................................................................1

  The fraud .............................................................................................................3

  The defense .........................................................................................................5

SUMMARY OF THE STATE’S ARGUMENTS .................................................7

STATE’S REPLY TO APPELLANT’S SOLE ISSUE
(EFFECTIVENESS OF REPRESENTATION) ....................................................8

     Appellant has not presented an adequate record to assess his
     complaint because he offered no evidence of counsel’s strategy. It
     may be a valid trial strategy for Appellant to admit his past criminal
     history, even if it might not otherwise be admissible. Furthermore,
     Appellant has not shown the result of the proceeding would have been
     different because the admission could have enhanced rather than
     detracted from his credibility, such as showing his honesty or showing
     that he had no history of fraud-related offenses. Additionally, the
     result would not have been different because, even if Appellant’s
     testimony was believed in its entirety, it still showed he was guilty of
     the offense.

  Standard of Review: ............................................................................................8

  Relevant Facts: ....................................................................................................9

  Argument & Authorities: ..................................................................................10


                                                                                                                         i
PRAYER...............................................................................................................15

CERTIFICATE OF SERVICE .............................................................................16

CERTIFICATE OF COMPLIANCE ...................................................................16




                                                                                                                     ii
                                    INDEX OF AUTHORITIES

Cases


Cannon v. State,
 252 S.W.3d 342 (Tex. Crim. App. 2008) .............................................................10

Ex parte Ellis,
  233 S.W.3d 324 (Tex. Crim. App. 2007) ............................................................11

Hernandez v. State,
 988 S.W.2d 770 (Tex. Crim. App. 1999) ...............................................................8

Jackson v. State,
  877 S.W.2d 768 (Tex. Crim. App. 1994) ...................................................... 10, 12

Jaramillo v. State,
  No. 04-02-00544-CR, 2003 WL 22491511
  (Tex. App.—San Antonio Nov. 5, 2003, no pet.)
  (not designated for publication) ............................................................................11

Lopez v. State,
  343 S.W.3d 137 (Tex. Crim. App. 2011) ...............................................................9

Ray v. State,
 No. 12-10-00365-CR, 2012 WL 690317
 (Tex. App.—Tyler Feb. 29, 2012, no pet.)
 (not designated for publication) ............................................................................11

Strickland v. Washington,
  466 U.S. 668 (1984) .........................................................................................8, 10

Thompson v. State,
  9 S.W.3d 808 (Tex. Crim. App. 1999) ...............................................................8, 9

West v. State,
 Nos. 05-02-00976—77-CR, 2003 WL 1131367
 (Tex. App.—Dallas Mar. 13, 2003, no pet.)
 (not designated for publication) ............................................................................11


                                                                                                                 iii
Williamson v. State,
 104 S.W.3d 115 (Tex. App.—Texarkana 2003, pet. ref'd) ..................................11




                                                                                         iv
               STATEMENT REGARDING ORAL ARGUMENT

      The State does not believe oral argument will assist the Court in developing

the issues in this case. However, if oral argument is granted to Appellant, the State

requests the opportunity to respond.


                         STATEMENT OF THE CASE

      Justin Roberts (“Appellant”) was charged by indictment with one count of

engaging in organized criminal activity, one count of money laundering, and three

counts of forgery of a contract or commercial instrument. CR 15. Appellant

pleaded not guilty before a jury. 2 RR 110. The jury convicted him of all counts,

and the trial court sentenced Appellant to four years in prison on Counts I and II

and two years in the state jail on Counts III, IV, and V, to run concurrently. CR 77-

81, 84, 87, 90; 4 RR 26-27, 56.

                           STATEMENT OF FACTS

      Appellant and two compatriots set up paperwork to falsely hold themselves

out as partners in their employer’s company and deposited thousands of dollars of

checks made out to their employer in their false bank accounts.


The business

       Jason Earnhardt was the owner of Ernhardt Restoration & Roofing, a roof

repair company he and his wife founded in 2010. 2 RR 114-16. Their business


                                                                                   1
model involved tracking areas of hail damage and sending salesmen to knock on

doors. 2 RR 116-17. In May 2012, Earnhardt Roofing employed approximately

forty salesmen or project managers, who were responsible for contacting

customers, inspecting roofs for damage, getting a contract signed, assisting the

customer in filing insurance claims, and collecting checks from the customer

before repair work actually began. 2 RR 118-19. Salesmen were paid a

commission of whatever projects they completed. 2 RR 134-35. Employees were

authorized to perform “side work”—small projects such as repairing a fence that a

customer might want completed at the same time as their roof replacement—but

those projects were still required to be submitted to the office. 2 RR 190.

      In May 2012, Earnhardt hired Ron Robey as a project manager. 2 RR 128. In

return, Robey recruited a number of additional employees, including Brian White

and Appellant. 2 RR 137; 3 RR 22. But then Earnhardt noticed that money was

going unaccounted for and contracts were made but never paid on. 2 RR 153. Then

in August, the company’s telephone and email accounts were flooded by

communications from all over the country, making so many calls and emails that

no business communications could take place. 2 RR 153. Earnhardt discovered that

someone had been listing his business’s contact information in Craigslist ads all

over the country, using ads that would generate many responses such as advertising

expensive items for free or job postings. 2 RR 155-56; 3 RR 89-90. The company



                                                                                2
had to shut down completely for sixty days because of the flood of

communications. 2 RR 156. Earnhardt learned that Robey, White, and Appellant

were responsible for the Craigslist postings and obtained a recording in which

Robey and White talked about the Craigslist postings. 2 RR 159; State’s Exhibit

14.

      Shortly after the police attempted to contact Robey, White, and Appellant

about the Craigslist postings, in early September, Earnhardt’s business was broken

into. 2 RR 140; 3 RR 102. Nothing valuable was taken, only a filing cabinet and

old computer towers with electronic records. 2 RR 140-41. But the records would

be valuable to anyone trying to start a roofing company, and the loss of them

crippled Earnhardt Roofing because they had no way of knowing what contracts

had been signed. 2 RR 143. The break-in cost Earnhardt Roofing approximately

$13.8 million dollars in lost revenue. 2 RR 143. Earnhardt was not able to keep the

business afloat and had to shut down. 2 RR 143.


The fraud

      During the police investigation into the Craigslist postings, Detective Finks

discovered that Robey, White, and Appellant had filed an Assumed Name

Certificate, also called a “Doing Business As” or “DBA,” under the name of

Earnhardt Roofing & Restoration. 3 RR 93; SX 8. One use of such a certificate is

to allow a person to open a bank account under a company name. 3 RR 69.


                                                                                 3
Obtaining a certificate only required a person to apply and swear that they were the

owners of the business, not provide any kind of proof of ownership. 3 RR 66-67.

Robey, White, and Appellant filed their Earnhardt Roofing DBA in Collin County

on July 30, 2012, while Earnhardt’s company was still operating in Dallas County.

3 RR 69; SX8. They subsequently used the DBA to open two bank accounts under

the name of Earnhardt Roofing at Woodforest National Bank and JPMorgan Chase

Bank, listing themselves as partners of the company. 2 RR 171-72; SX 9, 10.

      Robey, White, and Appellant then deposited the checks they received for

Earnhardt Roofing customers into their own bank accounts rather than turning

them over to Earnhardt. 2 RR 173-74. At least $38,000 in checks were deposited

into the fictitious accounts rather than the genuine business, all during the time the

genuine Earnhardt Roofing was unable to respond to or contact customers because

of the Craigslist attack. 2 RR 176. Earnhardt never gave Robey, White, or

Appellant permission to file the DBA or open any bank accounts under the

Earnhardt Roofing name. 2 RR 128, 152, 157, 172. Homeowners Inderjit Sethi,

Siva Sankaramanchi, and Jessica Carlton all testified that Appellant solicited

business from them, wearing the Earnhardt Roofing uniform and claiming he

worked for Earnhardt Roofing. 3 RR 38-40, 52-53, 71, 74, 78. All three researched

the company online and with the Better Business Bureau and were reassured that it

was a legitimate company. 3 RR 40-41, 53. They would not have done business



                                                                                    4
with Appellant but for verifying the company. 2 RR 41, 53. But all three

homeowners’ checks were deposited into Appellant’s fictitious accounts. SX 9, 10.


The defense

      Appellant testified at trial that he had been hired by Robey at Earnhardt

Roofing and worked there for only four months. 3 RR 118-24, 138. He started

having trouble getting paid by the company and having the company finish the jobs

he had contracted. 3 RR 142-43, 147. He claimed that he, Robey, and White had a

conversation with Earnhardt at a bar and as a result started a “business within a

business” of Earnhardt Roofing. 3 RR 149-52. Appellant admitted that they filed a

DBA under the name Earnhardt Roofing and opened two bank accounts under that

name. 3 RR 151-52. He testified that the purpose of the business within a business

was to do “side work and do our own business,” taking care of anything not

covered by the roofing insurance that the customer might want handled. 3 RR 153.

But he also began completing the roofing jobs that he claimed Earnhardt Roofing

was not completing in a timely manner and deposited those checks in the bank

accounts he, Robey, and White had opened. 3 RR 154. Appellant admitted that he

solicited jobs for his business wearing the Earnhardt Roofing uniform. 3 RR 169.

      Appellant claimed that he was just “caught up in a bad situation” because

Earnhardt mismanaged funds and did not take care of customers. 3 RR 157. He

said he believed they had Earnhardt’s permission to open the business within a


                                                                                   5
business and were supposed to pay Earnhardt fifty percent of any profits, but they

never received any profits because Earnhardt called the police. 3 RR 151, 163. But

he also admitted that it was possible Earnhardt did not know what they were doing.

3 RR 178.




                                                                                6
                SUMMARY OF THE STATE’S ARGUMENTS

      Appellant has not presented an adequate record to assess his complaint

because he offered no evidence of counsel’s strategy. It may be a valid trial

strategy for Appellant to admit his past criminal history, even if it might not

otherwise be admissible. Furthermore, Appellant has not shown the result of the

proceeding would have been different because the admission could have enhanced

rather than detracted from his credibility, such as showing his honesty or showing

that he had no history of fraud-related offenses. Additionally, even if Appellant’s

testimony was believed in its entirety, it still showed he was guilty of the offense.




                                                                                        7
              STATE’S REPLY TO APPELLANT’S SOLE ISSUE
                 (EFFECTIVENESS OF REPRESENTATION)

      Appellant complains in his sole issue on appeal that counsel was
      ineffective for introducing evidence of his otherwise inadmissible
      criminal history. But Appellant has not presented an adequate record
      to assess his complaint because he offered no evidence of counsel’s
      strategy. It may be a valid trial strategy to offer even otherwise
      inadmissible evidence. Furthermore, Appellant has not shown the
      result of the proceeding would have been different because the alleged
      error could have enhanced rather than detracted from his credibility,
      such as showing his honesty or showing that he had no history of
      fraud-related offenses. Additionally, even if Appellant’s testimony
      was believed in its entirety, it still showed he was guilty of the
      offense.

Standard of Review:

      Appellant bears the burden of establishing his ineffective assistance of

counsel claim under the two-part test of Strickland v. Washington, 466 U.S. 668

(1984). Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). He

must establish that counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms and that there is a reasonable

probability that but for counsel’s deficient performance, the result of the

proceedings would have been different. Strickland, 466 U.S. at 687-88. To

succeed, Appellant must establish both prongs of the Strickland test by a

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999).




                                                                               8
      The review of defense counsel’s actions is highly deferential and presumes

that counsel’s actions fell within the wide range of professional competence. Lopez

v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Counsel’s deficiency must

be shown clearly on the record, not through retrospective speculation. Id.

Appellant bears the burden of proof by a preponderance of the evidence.

Thompson, 9 S.W.3d at 814. It is not sufficient if Appellant merely shows, through

the benefit of hindsight, that counsel’s actions were questionable. Lopez, 343

S.W.3d at 143. The reviewing court must consider the totality of counsel’s

representation and the circumstances of each case. Id.

Relevant Facts:

      At the beginning of Appellant’s testimony during the guilt/innocence phase,

counsel elicited that he had a prior criminal history. 3 RR 116. Specifically,

Appellant admitted that he pleaded guilty in Georgia to felony possession of a

controlled substance after self-medicating a work injury with an unprescribed

muscle relaxant and successfully completed probation. 3 RR 116-17. He also

testified to receiving a misdemeanor conviction in Collin County for driving while

intoxicated. 3 RR 117.

      Following Appellant’s conviction, his trial counsel filed a motion for new

trial. CR 93. After current counsel was appointed, Appellant moved to withdraw

the first motion and filed a subsequent motion for new trial, alleging trial counsel’s


                                                                                    9
ineffectiveness. CR 106, 114, 128. Appellant attached his own affidavit to the

motion, but he did not obtain an affidavit from trial counsel or request a hearing.

CR 114, 128. The trial court denied the motion in a docket entry. CR 14.

Argument & Authorities:

      Appellant has not met his burden of proving he received ineffective

assistance of counsel because he has not presented an adequate record for the Court

to review his claim and accordingly has not shown either that his counsel’s

representation was deficient or that he was prejudiced by counsel’s alleged errors.

See Strickland, 466 U.S. at 686-88. A reviewing court cannot determine that trial

counsel was ineffective where there was no record of his reasoning. Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

      Here, the record is not adequate to evaluate Appellant’s claim. Appellant

complains that counsel was ineffective only for introducing evidence of his

criminal history. Appellant’s Brief at 13-14. But the record does not reflect any of

counsel’s reasoning for doing so. Counsel was never given an opportunity to

explain his actions, including whether he had a strategic purpose for introducing

Appellant’s criminal history. Thus, counsel could only be found ineffective if there

could be no conceivable strategic reason for his actions. See Cannon v. State, 252

S.W.3d 342, 350 (Tex. Crim. App. 2008).




                                                                                 10
      But it is not necessarily defective representation to introduce even otherwise

inadmissible evidence of a defendant’s criminal history. In Ex parte Ellis, the

Court of Criminal Appeals held that counsel had a sound strategic reason for

offering evidence of the defendant’s prior robbery conviction and murder charge.

233 S.W.3d 324, 334-36 (Tex. Crim. App. 2007). In Ellis, counsel used evidence

of the defendant’s criminal history to show that he had not been involved in any

previous drug-related crimes and thus was less likely to have possessed the drugs

than his co-defendant with a lengthy drug-related history. Id. This Court has also

found that having the defendant admit to his criminal history was a way of

demonstrating candor to the jury and could be a strategic reason to introduce prior

criminal history. West v. State, Nos. 05-02-00976—77-CR, 2003 WL 1131367, at

*2 (Tex. App.—Dallas Mar. 13, 2003, no pet.) (not designated for publication).

Additionally, the West court concluded that the fact that the evidence might not be

admissible “at the first instance” was irrelevant because the defense attorney “had

to plan for the event that appellant opened the door to these convictions.” Id. Other

courts have similarly found that a trial attorney may have a strategic reason for

introducing or opening the door to a defendant’s criminal history. See Williamson

v. State, 104 S.W.3d 115, 120 (Tex. App.—Texarkana 2003, pet. ref’d); Ray v.

State, No. 12-10-00365-CR, 2012 WL 690317, at *4 (Tex. App.—Tyler Feb. 29,

2012, no pet.) (not designated for publication); Jaramillo v. State, No. 04-02-



                                                                                  11
00544-CR, 2003 WL 22491511, at *1 (Tex. App.—San Antonio Nov. 5, 2003, no

pet.) (not designated for publication).

      Thus, there are valid strategic reasons why a reasonable defense attorney

may choose to admit even otherwise inadmissible criminal history. Counsel may

have been trying to show that Appellant had no history of fraud in order to support

his claim that he was merely mistaken about whether he had permission to open his

“business within a business.” Counsel also may have been trying to show

Appellant was honest about admitting his mistakes. Indeed, counsel could have

been afraid that Appellant might inadvertently open the door to evidence of his

criminal history, and revealing that history from the beginning could have looked

more honest to the jury. Without knowing counsel’s reasoning in the instant case,

this Court cannot conclude that he was acting deficiently. See Jackson, 877 S.W.2d

at 771.

      Additionally, Appellant has not shown that the result of the proceeding

would have been different but for his attorney’s alleged error. He argues that the

criminal history evidence was necessarily damaging because the case amounted to

a determination of his credibility versus Earnhardt’s. Appellant’s Brief at 14. But

as the West court concluded, discussing Appellant’s criminal history even when he

was not required to could show candor to the jury and might be considered a

positive influence on his credibility rather than a negative. And as in Ellis, the fact



                                                                                    12
that none of Appellant’s prior history involved fraud or theft could also have

contributed to the jury believing Appellant’s story that he was merely mistaken

about having permission, not that he was intentionally trying to defraud or cheat

Earnhardt.

       Appellant also cannot show that any damage to his credibility from the

introduction of his criminal history affected the result of the proceeding when his

own testimony showed he was guilty of the charged offenses. Appellant claimed

they had Earnhardt’s permission only to do “side jobs” and their own business,

things not connected to the insurance coverage that the customer might want done.

3 RR 153. Appellant then admitted that he had accepted payment for regular roof

repair jobs that he had solicited as part of Earnhardt Roofing, not “side jobs.” 1 3

RR 154. Appellant claimed he was justified in doing so because he was the one

actually completing the jobs when Earnhardt was mismanaging the business, not

because he had permission to do so. 3 RR 154. Thus, even if the jury had believed

Appellant’s testimony about having permission to set up a franchise-type business,

he admitted that he went beyond the scope of that permission to complete and

accept payment for Earnhardt Roofing’s own contracts. His own testimony showed




1
  Indeed, the three roofing contracts introduced into evidence were all signed before Appellant,
Robey, and White filed the DBA for their “business within a business,” so they were
indisputably customers of the original Earnhardt Roofing. SX 8, 11-13.


                                                                                             13
he was guilty, and thus any potential damage to his credibility by his criminal

history did not have an impact on the verdict.

      Because the record is not adequate to show that counsel’s representation was

deficient and Appellant has not shown the result of the proceeding would have

been different but for the alleged error, Appellant has not met his burden of

proving he received ineffective assistance of counsel. His sole error should be

overruled.




                                                                               14
                                   PRAYER

      Appellant’s trial was without prejudicial error.     The State prays that

Appellant’s convictions and sentences be affirmed.


                                            Respectfully submitted,


                                            GREG WILLIS
                                            Criminal District Attorney
                                            Collin County, Texas

                                            JOHN R. ROLATER, JR.
                                            Assistant Criminal District Attorney
                                            Chief of the Appellate Division

                                            /s/ Andrea L. Westerfeld
                                            ANDREA L. WESTERFELD
                                            Assistant Criminal District Attorney
                                            2100 Bloomdale Rd., Suite 200
                                            McKinney, TX 75071
                                            (972) 548-4323
                                            FAX (214) 491-4860
                                            State Bar No. 24042143
                                            awesterfeld@co.collin.tx.us




                                                                               15
                         CERTIFICATE OF SERVICE

      A true copy of the State’s brief has been electronically served on counsel for

Appellant, Franklyn Mickelsen, on this, the 22nd day of September, 2015.


                                             /s/ Andrea L. Westerfeld
                                             Andrea L. Westerfeld


                      CERTIFICATE OF COMPLIANCE

      This brief complies with the word limitations in Texas Rule of Appellate

Procedure 9.4(i)(2). In reliance on the word count of the computer program used to

prepare this brief, the undersigned attorney certifies that this brief contains 2,743

words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).



                                             /s/ Andrea L. Westerfeld
                                             Andrea L. Westerfeld




                                                                                 16
