                                                                             ACCEPTED
                                                                         03-15-00392-CR
                                                                                 6153335
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                   7/21/2015 11:24:31 AM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                    No. 03-15-00392-CR

                 IN THE COURT OF APPEALS              FILED IN
                                               3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF      AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS       7/21/2015 11:24:31 AM
                                                    JEFFREY D. KYLE
                                                         Clerk
                          ********

         TYLER DAVID EBANKS
                            VS.

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

         ON APPEAL FROM THE 264th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 72,912

                           ******

                 STATE’S BRIEF
                           ******

                          HENRY GARZA
                          DISTRICT ATTORNEY

                          BOB D. ODOM
                          ASSISTANT DISTRICT ATTORNEY
                          P.O. Box 540
                          Belton, Tx 76513
                          (254) 933-5215
                          FAX (254) 933-5704
                          DistrictAttorney@co.bell.tx.us
                          SBA No. 15200000


Oral Argument Not Requested

                              1
                   TABLE OF CONTENTS

ITEM                                                     PAGE

Index of Authorities …………………………………………………………………             3

Statement Regarding Oral Argument ………………………………………..        4

Statement of the Case ………………………………………………………………             4

Statement of Facts ……………………………………………………………………              5

Summary of State’s Argument ………………………………………………….           8

Argument and Authorities ……………………………………………………….            9

       Issue on Appeal ……………………………………………………………..           9
                  APPELLANT RECEIVE INEFFECTIVE
                  ASSISTANCE OF COUNSEL WHEN COUNSEL
                  DID NOT MOVE TO WITHDRAW WHEN HE
                  TESTIFIED AT PUNISHMENT PHASE THAT
                  HE DID NOT INTEND TO HURT THE CHILD?

           Standard of Review ………………………………………………           9

           Application and Analysis ………………………………………       11

Prayer ……………………………………………………………………………………                   18

Certificate of Compliance with Rule 9 ……………………………………..    18

Certificate of Service ………………………………………………………………           19




                               2
                   INDEX OF AUTHORITIES

CASES                                                           PAGE

Bone v. State, 77 S.W.3d 828 (Tx. Cr. App. 2002) ………………………        10

Goodspeed v. State, 187 S.W.3d 390 (Tx. Cr. App. 2005) ……………      11

Jackson v State, 590 S.W. 2d 514 (Tx. Cr. App. 1979) ………………..     12

Mallett v. State, 65 S.W.3d 59 (Tx. Cr. App. 2001) …………………….    13-15

Ex Parte Miller, 330 S.W.3d 610 (Tx. Cr. App. 2009) …………………       10

Moon v. State, 572 S.W.2d 681 (Tx. Cr. App. 1978) ……………………        16

Settles v. State, No. 08-05-00133-CR, ……………………………………….. 14-15
       2006 Tex. App. LEXIS 9397, (Tx. App. El Paso 8th
       Dist. 2006 no pet.), not designated for publication.

State v. Morales, 253 S.W.3d 686 (Tx. Cr. App. 2008) …………………      10

Strickland v. Washington, 466 U.S. 668 (1982) ………………………….         10

Sullivan v. State, 573 S.W. 2d 1 (Tx. Cr. App. 1978) ……………………     16

Thompson v. State, 9 S.W. 3d 808 (Tx. Cr. App. 1999) ………………..     10


OTHER

Texas Penal Code

     Section 22.04(a)(1) ………………………………………………………..                  12




                                  3
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Tyler David Ebanks, was charged by indictment

with the offense of injury to a child with serious bodily injury. The

indictment alleged that he intentionally and knowingly caused serious

bodily injury to A.J., a child 14 years of age or younger, by striking him.

(CR-4).

      The Appellant waived his right to a jury trial and entered a plea of

guilty. (CR-30; RR2-8). He judicially confessed to the offense as charged

in the indictment. (CR-35; RR2-8, 9). There was no plea bargain with

the State. (CR-30; RR2-5). The trial court found the evidence sufficient

to support a finding of guilty, ordered a presentence investigation, and

recessed the hearing. (RR2-10).

      At the subsequent punishment hearing, after receiving evidence

from both the State and the Appellant, the trial court assessed

punishment at 30 years in the Texas Department of Criminal Justice

Institutional Division. (CR-50; RR3-100).




                                    4
      The Appellant gave timely notice of appeal (CR-54, 64) and the

trial court certified his right to do so. (CR-65). No motion for new trial

was filed.

STATEMENT OF FACTS

      Stephanie Jones left her 3 year old son, A.J., with the Appellant, his

step-father, while she went shopping. A short time later she received a

call from the Appellant telling her to “get home”. (RR3-6, 7). When she

arrived she found the Appellant holding her son. He was unresponsive

and she called 911. (RR3-7). The Appellant told her that A.J. had fallen

from his crib, which was actually a type of play pen that sat low to the

floor. (RR3-7, 19).

      In the ambulance A.J. stopped breathing and he was airlifted to

the McLane Children’s Hospital in Temple, Texas. (RR3-8).           At the

hospital Ms. Jones was advised the her son’s injuries did not match up to

the Appellant’s version of what had occurred and Child Protective

Services was called. (RR3-8).

      Three year old A.J. had suffered 2 skull fractures and was bleeding

in his brain and behind his eyes. His right ear was broken. (RR3-8). He

was kept in the intensive care unit of the hospital in a medically induced



                                     5
coma for 7 or 8 days, and then transferred to a children’s hospital in

Dallas, where he remained for 2 ½ weeks. (RR3-10, 11).

       As a result of his injuries the child suffered brain damage that

caused learning disabilities. He could no longer sit up by himself, walk,

or hold a spoon. Extensive physical and speech therapy was necessary

and continued at time of trial. His prognosis remained uncertain. (RR3-

8, 9, 10).

       The Appellant eventually recanted his original claim that the child

had fallen from the playpen crib and admitted to authorities that he

struck the child. (RR3-8).

       The Appellant entered a plea of guilty before Judge John Gauntt.

The court carefully admonished him pursuant to Article 26.13 of the

Texas Code of Criminal Procedure. (RR2-4-7). The court then went over

with the Appellant the specific allegations in the indictment and the

Appellant stated that his plea to those allegations was “guilty”. (RR2-7,

8). The Appellant confirmed that his plea was freely and voluntarily

entered and was not the result of any force or threats but that he was

pleading guilty “…soley because you are guilty, and for no other reason.”

(RR3-8).




                                    6
      The Appellant signed a judicial confession that affirmed that he

had read the indictment and was guilty of the offense as alleged and

stated to the court that he signed it fully understand it’s effect. (CR-35;

RR2-7, 8). That judicial confession was admitted as State’s Exhibit 1

without objection. (RR2-9). The trial court found the evidence sufficient

to find the Appellant guilty but withheld a finding and recessed the

hearing for the preparation of a presentence report. (RR2-10).

      At the punishment hearing the State called Stephanie Jones to

testify and then rested. The Appellant then presented testimony from

Dr. William Lee Carter, a psychologist who had examined him, and his

mother, Tammy Jennings. Dr. Carter stated that the Appellant had been

physically and emotionally abused as a child (RR3-32) and that children

who are abused tend to have difficulties with their own impulse control

and anger. (RR3-35).      He stated that the Appellant displayed the

characteristics of narcissism and compulsive conduct. (RR3-36). Ms.

Jennings confirmed that the Appellant was abused as a child by his

father. (RR3-45).

      The Appellant testified and admitted that he struck the 3 year old

child on the side of the face, causing him to fall hitting the mattress and

box springs of the bed. (RR3-66). He claimed that he did so to get the


                                     7
child’s attention, rather than to hurt him. (RR3-66, 67). The Appellant

said that the child would not get in the bed in spite of the rules of the

household that 2:00 to 4:00 p.m. was nap time. Nevertheless, the 3 year

old child shook his head “no”. At that point the Appellant said that he

stuck him on the face because “he knows the rules of the house.” (RR3-

65).

        On cross examination he admitted lying to his wife and to the

police about what had happened. (RR3-80, 81). He acknowledged that

he had told Dr. Carter that he just didn’t think a kid should run the

house. (RR3-82, 83).

SUMMARY OF STATE’S ARGUMENT

       The Appellant unequivocally entered a plea of guilty and judicially

confessed to the elements of the offense as charged in the indictment

and the trial court took the case under advisement. At the subsequent

punishment phase he attempted to mitigate punishment and denied

that he had intended to hurt the child. He has failed to fulfill his burden

to show that his counsel’s failure to request to withdraw his plea of

guilty, if his testimony can be construed as a claim of innocence, was not

part of a reasonable trial strategy and, thus fell below an objective



                                    8
standard of reasonableness.      His trial counsel has been given no

opportunity to explain his decision not to do so. Counsel is entitled to

the presumption that his performance was constitutionally adequate.

      The Appellant has also failed in his burden to show that but for his

counsel’s alleged deficiency there is a reasonable probability that the

results of the proceedings would have been different.

ARGUMENT AND AUTHORITIES

Issue on Appeal

      Did the Appellant receive ineffective assistance of counsel because

his trial counsel did not move to withdraw his otherwise voluntary plea

of guilty when he testified at the punishment phase that he did not

intend to hurt the child?

Standard of Review

      In order to establish ineffective assistance of counsel, the

Appellant must prove by a preponderance of the evidence: (1) that his

trial counsel’s performance was deficient in that it fell below an

objective standard of reasonableness; and (2) that the deficient

performance prejudiced him to such a degree as to deprive him of a fair

trial. Such prejudice is demonstrated when the defendant shows a



                                    9
reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceedings would have been different. A reasonable

probability is one sufficient to undermine confidence in the outcome of

the proceeding. Strickland v. Washington, 466 U.S. 668, 687 (1982);

Thompson v. State, 9 S.W.3d 808, 813-14 (Tx.Cr.App. 1999).

      The Appellate Court does not view trial counsel’s performance by

hindsight, but rather upon the facts of the particular case as they were

at the time of counsel’s conduct. Thompson at 813. The Appellate Court

must be highly deferential to the judgment of counsel and must

presume that counsel’s actions fell within a range of reasonable and

professional assistance. Bone v. State, 77 S.W.3d 828, 836 (Tx.Cr.App.

2002). Thus, unless there is a record sufficient to demonstrate that

counsel’s conduct was not the product of a strategic or tactical decision,

a reviewing court should presume that trial counsel’s performance was

constitutionally adequate unless that conduct was so outrageous that no

competent attorney would engage in it. State v. Morales, 253 S.W.3d

686, 696 (Tx.Cr.App. 2008). The fact that another attorney may have

pursued a different tactic at trial is insufficient to prove a claim of

ineffective assistance. Ex Parte Miller, 330 S.W.3d 610, 616 (Tx.Cr.App.

2009).


                                   10
      Trial counsel should ordinarily be given an opportunity to explain

his or her actions before being denounced as ineffective. Absent such an

opportunity the appellate court should not find deficient performance

unless the challenged conduct was so outrageous that no competent

attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390,

392 (Tx.Cr.App. 2005).

Application and Analysis

      The Appellant alleges that his counsel rendered ineffective

assistance on the sole ground that he did not move to withdraw his plea

of guilty when he testified at the punishment phase of the trial that he

did not intend to hurt the child when he struck him. (RR3-66, 68). This,

he contends, rendered his otherwise voluntary plea of guilty

involuntary.   He has failed to fulfill his burden of proof to show

ineffectiveness on the part of trial counsel and, therefore, the Court

must presume that counsel was effective.

      The trial court carefully admonished the Appellant and he

confirmed that his plea of guilty was freely and voluntarily entered

because he was guilty as charged in the indictment. (RR2-6-8). The

court admitted his judicial confession admitting that he had read the

indictment and that he committed each and every element of the offense

                                   11
charged therein. The indictment alleged that he had intentionally and

knowingly caused serious bodily injury to A.J., a child 14 years of age or

younger, by striking him. (CR-4). The indictment included all of the

elements of the offense of injury to a child as provided in Section

22.04(a)(1) of the Texas Penal Code. The Appellant does not challenge

the sufficiency of the evidence to support his plea. His plea of guilty was

unequivocal. The trial court found the evidence sufficient to support a

finding of guilt and the Appellant did not contest that finding. (RR2-10).

The court then took the case under advisement and ordered the

preparation of a presentence report. 1

      Some 2 months later when the case was reconvened counsel for

the Appellant presented his case in mitigation of punishment, including

the testimony of the psychologist and the Appellant’s mother. He then

called the Appellant. In his testimony he admitted striking the 3 year

old child on the face, knocking him down and lying about what

happened to his wife and the authorities, however, he stated that he did


1
  After the trial court has admonished the defendant, received his plea
and evidence, and passed the case for a presentence investigation it has
taken the case under advisement and the plea may no longer be
withdrawn as a matter of right. Jackson v. State, 590 S.W.2d 514, 515
(Tx. Cr. App. 1979).


                                    12
not intend to hurt the child but only to get his attention because he (the

child) knew the rules of the house. (RR3-65, 66, 68). He told the

psychologist that he just didn’t think a kid should run the house. (RR3-

82, 83).

      The Appellant now contends that his trial counsel should have

moved to withdraw the plea when he said that he did not intend to hurt

the child and failure to do so rendered the plea involuntary. He has

cited nothing in the record to explain why counsel chose not to do so

nor did he file a motion for new trial on that ground. The Appellant has

failed in his burden to show that his counsel’s failure to request that he

be allowed to withdraw his plea was not part of counsel’s reasonable

trial strategy.

      The Appellant dismisses this failure by repeatedly stating, without

citation of authority, that a plea of guilty while testifying to innocence

cannot be freely, voluntarily, and intelligently entered.       First, this

assumes that his testimony was in fact a protestation of innocence,

rather than an attempt at mitigation of punishment by minimizing his

culpability. But even if that is the case, the courts have held that there

are all sorts of considerations that may motivate a guilty plea. Mallett v.

State, 65 S.W.3d 59, 64 (Tx. Cr. App. 2001).        The record does not


                                    13
remotely indicate that the Appellant even wanted to withdraw his plea

except by hindsight.     There may have been many reasons why he

wanted to continue with that plea even while trying to mitigate by

minimizing his culpability.

      In Mallett the defendant entered a plea of guilty to aggravated

assault on a police officer. After entering his plea of guilty he testified

that he did not intentionally try to run over the officer. He claimed his

counsel was ineffective for not moving to be allowed to withdraw his

plea. The Court of Criminal Appeals pointed out that the record, as in

this case, did not indicate why counsel did not move to withdraw the

defendant’s plea of guilty and noted that counsel might well have felt

that he could not rebut the recitations in the record showing that his

plea was freely and voluntarily entered. The Court of Criminal Appeals

said that, in any event, such speculation as to a reasonable trial strategy

was immaterial because the defendant had failed to satisfy his burden to

show ineffective assistance absent anything in the record as to counsel’s

reasons for failing to object. Mallett at 64, 65. See also Settles v. State,

No. 08-05-00133-CR, 2006 Tex. App. LEXIS 9397 (Tx. App. El Paso 8th

Dist. 2006 no pet.), not designated for publication. (Where record shows

the defendant pled guilty freely and voluntarily to the offense alleged in


                                    14
the indictment and was properly admonished a prima facie case that the

plea was knowing and voluntary is established; and where the record is

silent as to why the counsel did not request to withdraw the plea the

defendant has failed to fulfill her burden of proof to show

ineffectiveness.).

      In this case the record is very clear that the Appellant entered his

plea of guilty to the exact offense charged in the indictment freely,

voluntarily and intelligently and a prima facie case that the plea was so

entered has been clearly established. There has been no showing as to

what the trial strategy of counsel was in not requesting to withdraw his

plea. Absent such evidence in the record counsel’s assistance must be

presumed to have been constitutionally adequate and counsel should

not be branded ineffective without being accorded an opportunity to

explain his actions.

      Although it is not necessary to speculate as to what counsel’s trial

strategy might have been in this regard where the Appellant has failed

to fulfill his burden to show ineffectiveness, nevertheless it is probable,

as in Mallett and Settles, that he reasonably concluded that he could not

rebut his unequivocal plea of guilty and judicial confession. Further, in

light of the evidence of such severe injuries to the child that


                                    15
contradicted his claim that he struck a single blow and did not intend to

hurt the child, might well have been a reasonable strategy to continue

with his plea of guilty.

      The Appellant has also failed in his burden to show that, but for

counsel’s alleged error in failing to request to withdraw his plea of

guilty, the result of his trial would have been different. Whether or not

to allow him to withdraw his plea at the punishment stage of the trial

after the case had been taken under advisement was entirely within the

trial court’s discretion. The trial court was under no duty to sua sponte

withdraw the plea due to the Appellant’s testimony attempting to

mitigate punishment by minimizing his intent to hurt the child. The trial

court was under no duty to do so because it had withheld its finding of

guilt pending the preparation of the presentence report. The court had

the option, after considering all of the evidence, to find the Appellant not

guilty should it believe the facts required it without withdrawing the

plea. Sullivan v. State, 573 S.W.2d 1, 4 (Tx. Cr. App. 1978), op. on

rehearing, citing Moon v. State, 572 S.W.2d 681 (Tx. Cr. App. 1978).

      The court heard Appellant’s testimony at punishment and could

have found him not guilty based upon his denial of intent but did not do




                                    16
so. There is no reason to believe that the court would have granted his

request had it been made or that he would have been found not guilty.

      Great difference must be given to the judgment of trial counsel

and he must be presumed to have rendered reasonable and professional

assistance. Absent anything in the record to show that his conduct was

not the product of strategic or tactical decisions counsel is also entitled

to the presumption that he rendered constitutionally adequate

assistance unless the record establishes conduct so outrageous that no

competent attorney would engage in it.         There has been no such

showing in this case and no opportunity was even afforded counsel to

answer the accusations against him. The Appellant has failed in his

burden and the judgment of conviction must be affirmed.




                                    17
                                PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000


     CERTIFICATE OF COMPLIANCE WITH RULE 9

      This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 2,701words.




                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney



                                     18
                    CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of this brief has been

served upon, Richard E. Wetzel, Counsel for Appellant, by electronic

transfer via Email, addressed to him at: wetzel_law@1411west.com, on

this 21st day of July, 2015.




                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney




                                     19
