                                                                               ACCEPTED
                                                                            14-14-00774-cr
                                                           FOURTEENTH COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                                                      4/20/2015 1:56:19 PM
                                                                     CHRISTOPHER PRINE
                                                                                    CLERK

            No. 14-14-00774-CR

        In the Court of Appeals for the
                             FILED IN
    Fourteenth District of Texas at Houston
                      14th COURT OF APPEALS
                         HOUSTON, TEXAS

                      4/20/2015 1:56:19 PM
                      CHRISTOPHER A. PRINE
         No. 1415457           Clerk

          In the 248th District Court
           Of Harris County, Texas



          JOSEPH LEE FIEDOR
               Appellant
                  v.

          THE STATE OF TEXAS
                Appellee



 APPELLANT’S BRIEF ON DIRECT APPEAL






                                   ADAM BANKS BROWN
                                   300 MAIN SUITE 200
                                   HOUSTON, TEXAS 77002
                                   TEL: 713-223-0051
                                   FAX : 713-223-0877
                                   SBOT: 24003775

                                   Counsel for Appellant
                      STATEMENT REGARDING ORAL ARGUMENT

       Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, appellant requests oral

argument only if requested by the State.

                                 PARTY IDENTIFICATION

       Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all interested

parties is provided below:

       Counsel for Appellant:

               Adam B. Brown  Counsel on appeal

               Richard F. Burgess  Counsel at trial

       Appellant (Criminal Defendant):

               Joseph Lee Fiedor—Appellant

       Counsel for the State:

               Devon Anderson  Harris County District Attorney (interim)

               Alan Curry  Assistant District Attorney on appeal

               Allison Bambridge  Assistant District Attorney at trial

       Trial Judge:

               Hon. Katherine Cabaniss  Presiding Judge




                                               2
                                                   TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT......................................................................2


PARTY IDENTIFICATION ...........................................................................................................2


INDEX OF AUTHORITIES............................................................................................................5


STATEMENT OF THE CASE........................................................................................................7


STATEMENT OF FACTS ..............................................................................................................7


SUMMARY OF THE ARGUMENT ..............................................................................................8


POINT OF ERROR .........................................................................................................................9


POINT OF ERROR ONE — FAILURE TO OBJECT TO DESCRIPTION OF PRIOR FELONY
OFFENSE IN THE PRE-SENTENCE INVESTIGATION RESULTED IN INEFFECTIVE
ASSISTANCE OF COUNSEL


     A.      Standard of Review and Applicable Law .........................................................................9


     B.      Argument ........................................................................................................................10


POINT OF ERROR TWO — FAILURE TO OBJECT TO UNSWORN TESTIMONY IN THE PRE-
SENTENCE INVESTIGATION RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL


     A.      Standard of Review and Applicable Law .......................................................................11


     B.      Argument ........................................................................................................................12


POINT OF ERROR THREE — FAILURE TO PROVIDE FURTHER MITIGATION TESTIMONY
RESULED IN INEFFECTIVE ASSISTANCE OF COUNSEL


     A.      Standard of Review and Applicable Law .......................................................................13



                                                                      3
   B.     Argument ........................................................................................................................13


 CONCLUSION ................................................................................................................……..15


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




                                                                   4
                                                 INDEX OF AUTHORITIES

CASES

Strickland v. Washington ,
   466 U.S. 668 ............................................................................................................................... 7


Hernandez v. State,
  988 S.W.2d 770 (Tex. Crim. App. 1999), .................................................................................. 7


Kemp v. State,
  892 S.W.2d 112 (Tex.App.Houston [1st Dist.] 1994, pet. ref‘d) .............................................. 8


Ex Parte Duffy,
  607 S.W.2d 507 .......................................................................................................................... 7


McFarland v. State,
  928 S.W.2d 482 (Tex. Crim. App. 1996), .................................................................................. 8


Glover v. United States,
  531 U.S. 198 (2001) .................................................................................................................. 8


Wyatt v. State,
  23 S.W.3d 18 (Tex. Crim. App. 2000), ...................................................................................... 8


Gifford v. State,
  980 S.W.2d 791 (Tex.App.Houston [1st Dist.] 1998, pet. ref‘d) .............................................. 8


Delrio v. State ,
  840 S.W. 2d 443 ....................................................................................................................... 12


Jackson v. State ,
  877 S.W. 2d 768 ....................................................................................................................... 12




                                                                       5
RULES


TEX. R. APP. P. 39.1 ........................................................................................................................ 1


TEX. R. APP. P. 9.4(g)...................................................................................................................... 1


TEX. R.EVID. 403 ........................................................................................................................... 8




                                                                      6
TO THE HONORABLE COURT OF APPEALS:


                                 STATEMENT OF THE CASE

       The State charged Appellant with Intoxication Assault. Appellant pled guilty to the charge

and a Pre-Sentence Investigation was ordered. The Court, after a hearing, found Appellant guilty

as charged, and assessed his punishment at the maximum confinement of 20 years in the Texas

Department of Criminal Justice, Institutional Division.       Appellant filed a timely and written

notice of appeal.

                               


                                    STATEMENT OF FACTS

       The following synopsis describes the testimony given by the relevant witnesses. It should

not be construed as Appellant’s acceptance of any fact asserted. Some witness testimony was not

mentioned nor referred to for the sake of judicial economy. However, Appellant requests the

Court to consider and review the entire record of the hearing on the merits when rendering their

decision.

       Appellant was arrested and charged with the offense of Intoxication Assault on January 24,

2014. He plead guilty to the charge on July 1, 2014 and requested a punishment hearing along

with a Pre-sentence Investigation Report (hereinafter PSI). On August 18, 2014, a punishment

hearing was presented to the 248th District Court. At the hearing, the PSI was produced by the

probation department. The results of the PSI report and testimony from the Appellant’s foster

mother were the only evidence presented by Appellant at that hearing. Upon the State’s motion

to enter the PSI, Appellant’s trial attorney failed to make any objections to its admission.

       Included in the PSI report were highly prejudicial and improper pieces of key evidence,

including but not limited to lengthy descriptions of the facts of a juvenile sexual assault of a child


                                                  7
case which was used as an enhancement and letters from Victims family and coworkers which

requested the maximum sentence. Very little mitigation testimony was given

       Appellant would argue trial counsel’s failure to object to this improper evidence proves

said trial counsel was ineffective in his representation of Appellant under the Strictland review.

       Additionally, at the hearing, trial counsel failed to present proper evidence of Appellant’s

mental health and childhood history for mitigation purposes.         This failure to provide such

evidence proves said trial counsel was ineffective in his representation of Appellant under the

Strickland review.

                               


                              SUMMARY OF THE ARGUMENT

       In Appellant’s first point of error, Appellant argues that he received ineffective assistance

of counsel at his hearing on punishment. Specifically, Appellant argues that his trial counsel was

ineffective in that he failed to timely object to descriptions of a prior felony offense in the Pre-

sentence Investigation Report.

       In Appellant’s second point of error, Appellant argues that he received ineffective

assistance of counsel at his hearing on punishment. Specifically, Appellant argues that his trial

counsel was ineffective in that he failed to object to unsworn testimony presented in the PSI report.

       In Appellant’s third point of error, Appellant argues that he received ineffective assistance

of counsel at his hearing on punishment. Specifically, Appellant argues that his trial counsel was

ineffective in that he presented only limited mitigation evidence during the hearing.

                               




                                                 8
                                       POINT OF ERROR

POINT OF ERROR ONE — FAILURE TO OBJECT TO DESCRIPTION OF PRIOR FELONY OFFENSE IN THE

PRE-SENTENCE INVESTIGATION RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review and Applicable Law

         Ineffective assistance of counsel is evaluated using a two step process.         Strickland v.

Washington 466 U.S. 668. The first is the trial counsel’s representation fell below the objective

standard of reasonableness (Id. 688). To prove this step, the Appellant must identify the specific

acts or omissions of counsel alleged to be ineffective and prove they were ineffective.    Hernandez

v. State, 988 S.W.2d. 770 (Tex.Crim.App. 1999).        The second is the Appellant must show a

prejudice as a result of counsel’s performance See Strickland, 466 U.S. at 694. A record that

focuses on the conduct of trial counsel is necessary for a proper evaluation Kemp v. State, 892

S.W.2d 112 (Tex.App.Houston [1st Dist.]      1994, pet. ref’d). To show prejudice, Appellant must

show that but for the ineffective actions of the trial attorney, the result of the proceeding would

have been different.   See Strickland at 694, 104 S.Ct. at 2068.

         The Strickland test now applies to the punishment phase of a non-capital trial. See

 Hernandez v. State, 988 S.W.2d 53 (Tex. Crim. App.1999), overruling Ex parte Duffy, 607

 S.W.2d 507, 516 (Tex.Crim.App.1980) (establishing test for ineffective assistance of

 counsel in punishment phase of non-capital trial). We now apply the same two-prong

 Strickland standard of review for ineffective assistance of counsel claims in both the

 guilt/innocence phase of trial and the punishment phase of trial. Hernandez v. State, 726

 S.W.2d 53, 55 (Tex. Crim. App.            1986). To show ineffective assistance of counsel at

 punishment, the appellant must first demonstrate counsel's representation fell below an

 objective standard of reasonableness under prevailing professional norms. See Strickland v.


                                                 9
 Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McFarland v. State, 928

 S.W.2d 482, 500 (Tex.Crim.App.1996). Counsel's competence is presumed, and the appellant

 must rebut this presumption by identifying the acts or omissions of counsel that are alleged as

 ineffective and affirmatively prove that       they fell   below the     professional norm of

 reasonableness. See McFarland, 928 S.W.2d at 500.          An ineffectiveness claim cannot be

 demonstrated isolating any portion of counsel's representation, but is judged on the totality of

 the representation. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. The Supreme Court

 has held that counsel's deficient performance that resulted in a higher sentence under determinate

 sentencing guidelines constitutes prejudice. Glover v. United States, 531 U.S. 198 (2001).

        The Rule 403 balancing test includes the following factors: 1) how compellingly the

extraneous offense evidence serves to make a fact or consequence more or less probable a factor

which is related to the strength of the evidence presented by the proponent to show the Defendant

in fact committed the extraneous offense; 2)     the potential the other offense evidence has to

impress the jury in some irrational but nevertheless indelible way; 3) the time the proponent will

need to develop the evidence, during which the jury will be distracted from consideration of the

indicted offense; and 4)   the force of the proponent’s need for this evidence to prove a fact of

consequence    Wyatt v. State, 23 SW3rd 18, 26 (Tex.Crim.App. 2000). Texas Rules of Evidence

403 provides that relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury

TEX.R.EVID. 403.


B. Argument

       At the punishment hearing, a major portion of the evidence presented both for and against



                                               10
Appellant was the PSI report. Therefore, it must be assumed the Court took the report into great

consideration prior to rendering the maximum sentence against the Appellant despite the lack of

any real prior offenses other than those committed when the Appellant was very young.

          As to this prior offense, the Appellant’s trial attorney allowed into evidence very specific

and highly prejudicial details. While descriptions of prior offenses are admissible, they are not

allowed to cross the line of prejudicial under rule 403 of the Rules of Evidence. In this case, the

PSI contained descriptions such as the Appellant, “leaping on another student in a sexual manner”

and a medical exam which showed, “dried blood around the anal area.” This statement along with

other descriptors in the PSI are highly prejudicial to Appellant and would have resulted in a

different outcome in the sentencing. Trial counsel’s failure to object to this evidence cannot be

considered trial strategy and falls below the standard of reasonableness under the Strickland

review.

POINT   OF   ERROR   TWO   —   FAILURE TO OBJECT TO UNSWORN TESTIMONY IN THE PRE-SENTENCE

INVESTIGATION RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review and Applicable Law

          In Gifford v. State, 980 S.W.2d 791 (Tex. App. -Houston [1st Dist.] 1998,pet. ref d), the

First Court of Appeals reversed and remanded for a new punishment hearing, where counsel for

the defense 1) failed to object to unsworn victim impact statements made before sentencing and

2) did not ask to conduct cross-examination. However, as previously mentioned, the Defense

failed to object to their admission under Article 42.03 Sec. 1 (b) of the Texas Code of Criminal

Procedure. The Texas Code ofCriminal Procedure authorizes a court to receive victim impact

statements. See Tex.Code Crim.Proc.Ann. Art. 42.03 Sec. 1 (b) (Vernon Supp.2013). But, as

shown below, the legislature has severely limited the use and impact of the statement by




                                                  11
requiring that it be made after punishment has been assessed:

   (b) The court shall permit a victim, close relative of a deceased victim, or guardian of a

        victim, as defined by Article 56.01 of this code, to appear inperson to present to the

        court and to the defendant a statement of the person's views about the offense, the

        defendant, and the effect of the offense on the victim. The victim, relative, or guardian

        may not direct questions to the defendant while making the statement. The court reporter

        may not transcribe the statement. The statement must be made:

                (1) after punishment has been assessed and the court has determined whether or

        not to grant community supervision in the case;

                (2) after the court has announced the terms and

        conditions of the sentence;

                (3) after sentence is pronounced.

B. Argument

       Trial counsel failed to object to the portion of the PSI which allowed non-sworn testimony

before the court in the form of letters written by family and friends of the victim requesting the

maximum sentence be imposed. These letters number twenty seven. Two of the letters have

additional signatures of thirty eight different people. All of the letters reflect their views about

the offense, the Defendant, and the effect of the offense has had. This unsworn evidence was

admitted prior to punishment being assessed. The witnesses were not present to testify, and

therefore were unavailable for cross-examination.

       The complained of unsworn victim impact statements contained within the letters were

entered into evidence 1)before punishment was assessed, 2) before the court announced the terms

and conditions of the sentence and 3) before sentence was pronounced. Clearly, these unsworn

                                                12
victim impact statements, did not qualify as admissible statements under article 42.03. See id..

Consequently, Defense counsel should have objected to the State's introduction of the letters

containing   unsworn     victim   impact    statements    into evidence.    Appellant argues that

ineffective assistance of counsel in his case is the equivalent of denial of counsel and that he

should be granted another Pre-Sentence Investigation hearing.

       POINT   OF   ERROR   THREE   —   FAILURE TO PROVIDE FURTHER MITIGATION TESTIMONY

RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review and Applicable Law

       The benchmark for judging a claim of ineffective assistance is whether counsel's conduct

so undermined the proper functioning of the adversarial process that a trial could not be relied on

as having produced a just result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). To establish ineffective assistance of counsel at the guilt\innocence stage

of trial, the appellant must show that ( I ) his counsel's performancewas deficient, i.e., counsel's

errors were so serious that he was not functioning as the"counsel" guaranteed by the Sixth

Amendment, and (2) the deficient performance prejudiced the defense i.e., deprived him of a

fair trial. Id. at 687; see Hernandez v. State,726 S.W.2d 53, 55 (Tex. Crim. App.        1986).

       These errors demonstrate (1) that appellant's counsel's performance was undeniably

deficient, i.e. counsel's errors were so serious that he was not functioning as the "counsel"

guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense

i.e., deprived him of a fair hearing. Id. at 687; see Hernandez v. State, 726 S.W.2d 53, 55 (Tex.

Crim. App. 1986).

B. Argument

       At the PSI hearing, the only live testimony presented by the Defense was from the




                                                13
Appellant’s foster mother Anna L. Jones. Ms. Jones was able to merely provide a brief insight

into the character of the Appellant. There was no testimony concerning Appellant’s mental health

issues or brutal upbringing. As noted in the PSI report, Appellant had been treated in the past for

Depression and for being Bipolar. Appellant was permanently sent to foster care at a very young

age. He reported he was that beaten by both his step father and foster mother since the age of 5.

An expert witness able to discuss these mental diseases and his traumatic childhood and their

possible role in the actions of Appellant would have been critical to providing to the Court a better

idea of what the proper sentence would be. Additionally, the record is also clear that should

Appellant’s attorney have put on any mitigation evidence, the outcome would have been different

since Appellant was sentenced to the maximum under the agreement. Therefore, the record shows

that the mitigation evidence would have at least given the Court reason to give less than the

maximum.

       As it applies to all points of error presented, Appellant is well aware of the case law

regarding an ineffective argument on direct appeal with a “cold record” See Delrio v. State 840

S.W. 2nd 443, 446. However, Appellant would argue a transcript of this nature is by no means

required if the “cold record” shows enough evidence for the Appellate Court not to speculate to

determine if the trial strategy was reasonable or not. See Jackson v. State 877 S.W.2d 768, 771.

Despite the lack of a transcript of a Motion for New Trial hearing, there can be no explanation for

the trial attorney not to put on more mitigating evidence or make proper objections.




                                                 14
                              

                                        CONCLUSION

       For the reasons described above, Appellant’s three points of error should be sustained and

his conviction reversed for a new punishment hearing.




                                CERTIFICATE OF SERVICE

       I certify that a copy of the foregoing instrument has been mailed or hand-delivered to the

State’s attorney at the following address on April 20, 2015:


       Mr. Alan Curry
       Harris County District Attorney’s Office
       1201 Franklin St., Ste. 600
       Houston, Texas 77002




                                                               /s/ Adam Banks Brown
                                                               ADAM BANKS BROWN
                                                               300 MAIN SUITE 200
                                                               HOUSTON, TEXAS 77002
                                                               TEL: 713-223-0051
                                                               FAX : 713-223-0877
                                                               SBOT: 24003775

                                                               Counsel for Appellant



Date: April 20, 2015




                                               15
