                                                                             ACCEPTED
                                                                         01-15-00238-CR
                                                              FIRST COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                   11/30/2015 1:27:49 PM
                                                                   CHRISTOPHER PRINE
                                                                                  CLERK

                NO. 01-15-00238-CR

            IN THE COURT OF APPEALS                     FILED IN
         FOR THE FIRST DISTRICT OF TEXAS         1st COURT OF APPEALS
                                                     HOUSTON, TEXAS
                                                 11/30/2015 1:27:49 PM
                                                 CHRISTOPHER A. PRINE
                DANG DUY TRUONG                           Clerk
                    Appellant

                          v.

                THE STATE OF TEXAS
                       Appellee


      On Appeal from Cause Number 1410374
 From the 262nd District Court of Harris County, Texas



             BRIEF FOR THE APPELLANT




                               TONYA ROLLAND MCLAUGHLIN
                               TBN 24054176
                               815 Walker St., Suite 1047
                               Houston, Texas 77002
                               Phone: (713) 529-8500
                               Fax: (713) 456-2203

                               Counsel for Appellant




ORAL ARGUMENT RESPECTFULLY REQUESTED
                IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                             Dang Duy Truong
                                       TDC# 01984623
                                       4250 Highway 202
                                       Beeville, Texas 78102

TRIAL PROSECUTORS:                     Erin Epley
                                       Donna Logan
                                       Assistant District Attorneys
                                       Harris County, Texas
                                       1201 Franklin Avenue
                                       Houston, Texas 77002

DEFENSE COUNSEL AT HEARING:            Thomas Radosevich
                                       1821 Houston Avenue
                                       Houston, Texas 77007


COUNSEL ON APPEAL FOR APPELLANT:       Tonya Rolland McLaughlin
                                       815 Walker St., Suite 1047
                                       Houston, Texas 77002


PRESIDING JUDGES:                      Hon. Denise Bradley
                                       Hon. Wayne Mallia
                                       262nd District Court
                                       Harris County, Texas
                                       1201 Franklin Avenue
                                       Houston, Texas 77002




                               2
                                                      TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL .................................................................... 2

TABLE OF CONTENTS ....................................................................................................... 3

INDEX OF AUTHORITIES ................................................................................................ 4

STATEMENT OF THE CASE ............................................................................................. 5

STATEMENT REGARDING ORAL ARGUMENT ...................................................... 6

ISSUE PRESENTED .............................................................................................................. 7

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

SUMMARY OF THE ARGUMENT .................................................................................12

ARGUMENT ..........................................................................................................................12

          TRIAL COUNSEL WAS INEFFECTIVE DURING THE PUNISHMENT PHASE BY
          FAILING TO INVESTIGATE APPELLANT’S BACKGROUND OR PRESENT
          MITIGATION EVIDENCE.

          STANDARD OF REVIEW. ........................................................................................... 12

          ANALYSIS. ................................................................................................................... 13

          CONCLUSION. ............................................................................................................ 16


PRAYER...................................................................................................................................17

CERTIFICATE OF SERVICE ............................................................................................17

CERTIFICATE OF COMPLIANCE .................................................................................18




                                                                         3
                                                 INDEX OF AUTHORITIES
Cases

Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004)............................................................ 13

Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990).. ...................................................... 13

Lopez v. State, 462 S.W.3d 180 (Tex. App. -- Houston [1st Dist.] 2015). ...................................... 13

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

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) ......................................12, 13, 15

Wiggins v. State, 539 U.S. 510 (2003) ................................................................................................ 14

Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986) ....................................................... 12



Constitutional Provisions, Statutes and Rules	  

U.S. Const. ............................................................................................................................... 12

TEXAS CONST. .......................................................................................................................... 12

TEX. CODE CRIM. PROC. ANN. ART. 44.29(B) (2013) ............................................................. 17

TEX. R. APP. PROC. 38.1(E) .........................................................................................................6




                                                                      4
                                           STATEMENT OF THE CASE

           Appellant was charged in cause number 1410374 with Aggravated Robbery

alleged to have occurred on or about September 28, 2013. (1 CR at 6).1 On February

25, 2015, a jury found Appellant guilty and sentenced him to forty (40) years in the

Institutional Division of the Texas Department of Corrections. (1 CR at 128).

Appellant filed a timely notice of appeal on that day. (1 CR at 131). Appellant filed

and presented a Motion for New Trial on March 25, 2015. (1 CR at 138). The trial

court denied the motion on April 29, 2015. (1 CR at 135).




1   CR is for the Clerk’s Record. RR is for the supplemental reporter’s record.

                                                              5
                    STATEMENT REGARDING ORAL ARGUMENT

      Oral argument should be permitted because this appeal is not frivolous and the

facts and legal arguments are adequately presented. TEX. R. APP. PROC. 38.1(e).

Appellant requests oral argument because the Court of Appeal’s decision, whether the

trial counsel was ineffective, would be significantly aided by oral argument.




                                           6
                                  ISSUE PRESENTED

      ISSUE ONE: TRIAL COUNSEL WAS INEFFECTIVE DURING THE PUNISHMENT
      PHASE BY FAILING TO INVESTIGATE APPELLANT’S BACKGROUND OR
      PRESENT MITIGATION EVIDENCE.

                                STATEMENT OF FACTS

      Appellant, Dang Truong, was 22 years old at the time he was charged with

Aggravated Robbery. (CR at 6). Defense counsel, Thomas Radosevich, was appointed

to represent him six months before trial. (CR at 17). The original plea offer from the

State was twenty five years. (CR at 18). On February 24, 2015, Judge Bradley

conducted voir dire and the following day visiting Judge Wayne Mallia presided over

the remainder of the trial. (3 RR at 4, 122). The guilt and innocence phase through the

end of the punishment phase lasted only one day.

      Mr. Radosevich plead not guilty on behalf of Appellant at trial. (4 RR at 23). He

waived opening argument. (5 RR at 92). The State introduced a video, through

Detective Jeffrey Miller, of Appellant with a gun and appearing to rob a business. (4

RR at 30). Mr. Radosevich did not cross examine Det. Miller. (5 RR at 75). Next,

complainant, Hoan Pham, testified Appellant entered the business and shot him in the

arm and tried to shoot him in the face, but the gun did not fire. (5 RR at 81-84). Mr.

Radosevich did not cross examine Mr. Pham, although; Appellant denied shooting the

complainant or aiming a gun at his face. (4 RR at 91, 93-94). After the State rested,

Mr. Radosevich requested a short recess to talk to Appellant and then called him to



                                           7
the stand. (4 RR at 92-93). Mr. Radosevich did not prep Appellant to testify; he

decided, at that moment, Appellant would testify. (7 RR at 99).

       Appellant took the stand and admitted he gave in to peer pressure and

committed the armed robbery while intoxicated. (4 RR at 94-95). Appellant’s name

and age were the only personal questions Mr. Radosevich asked him on the stand. (4

RR 93-94). Mr. Radosevich did not object during the State’s cross of Appellant and

did not redirect. (4 RR at 114). Mr. Radosevich concluded the guilt innocence phase

of trial by waiving closing argument. (4 RR at 117). The State’s close acknowledged

“it’s been a fast trial.” (Id.). The jury found him guilty. (4 RR at 20).

       During the punishment phase, Mr. Radosevich again called Appellant to the

stand to briefly question him about his knowledge of probation and did not offer any

mitigation evidence. (5 RR at 5 8). He did not redirect after the State’s cross of

Appellant or call any additional witnesses to testify. (5 RR 10). Mr. Radosevich began

his closing punishment argument by pointing out to the jury they “didn’t hear from

defendant’s family and you can infer he doesn’t have any or doesn’t like him” and

they “didn’t see any friends.” (5 RR at 15). The State’s close equated this case to a

capital murder without objection from Mr. Radosevich. (5 RR at 13). The State

commented that Appellant’s demeanor on the stand is nice, sweet and modest but

calls him a liar and then asks the jury to sentence him to a minimum of forty years. (5

RR at 18, 24). The jury sentenced him to forty years. (5 RR at 27).



                                              8
        Counsel on appeal presented a motion for new trial alleging ineffective

assistance of counsel during the punishment phase. (CR at 135). Judge Bradley heard

arguments for the motion for new trial. (6 RR at 1). Appellate counsel offered into

evidence affidavits from Mr. Radosevich, Lott Brooks, Lucy Thai, Kim Ho and

Christine Nguyen. (6 RR at 5 6; 7 RR at 99-106).

        Appellant’s adoptive mother, Lucy Thai, was never contacted by Mr.

Radosevich. (7 RR at 103). Ms. Thai’s statement, through a Vietnamese interpreter,

was that had she would have told the jury about her son’s history. (Id.). He was born

to her single, mentally ill, fifteen year old sister in Vietnam. Appellant went to live in a

Vietnamese orphanage at five years old when his birth mother died. (Id.). Thai later

adopted him and they came to the United States as refugees when he was eight years

old. (Id.).

        Appellant’s ex-girlfriend, Kim Ho, was willing to testify on Appellant’s behalf.

(7 RR at 105). She remained friends with him even after ending their dating

relationship three years prior and believes him to be a sweet person and remorseful of

the situation. (Id.). According to Ms. Ho, Mr. Radosevich would never get back to her

about arranging a meeting and did not tell her about trial. (Id.).

        Appellant’s childhood friend, Christine Nguyen, swears she tried to meet up

with Mr. Radosevich multiple times and he would not return her texts or calls for

days. (7 RR at 106). Ms. Nguyen was not asked by Mr. Radosevich to testify, but

would have told the jury she met Appellant in Sunday school at the Incarnate Word
                                             9
when they were twelve years old. (Id.). He is like a little brother to her and she was

surprised by this arrest. (Id.). He did not have much growing up, but was always

willing to help others. (Id.).

         Mr. Radosevich acknowledged in an affidavit on April 7, 2015, that he did not

subpoena witnesses, although he knew some were available, and “it is critical for the

defense to present witnesses in mitigation of punishment, to humanize the defendant

in the eyes of the jury and show them that family and friends cared deeply.” (7 RR at

99). Mr. Radosevich states he was not advised Appellant had any relatives and

submitted a form he uses to help prepare witnesses. (7 RR at 99, 101). He states Ms.

Nguyen and Ms. Ho believed attorney, Lott Brooks, would be hired to handle the

case and that his inability to persuaded them to help Appellant hurt him at

punishment. Mr. Brooks was not retained for this case and only spoke to family the

week before trial. (7 RR at 102).

         On April 27, 2015, Mr. Radosevich signed an affidavit for the prosecution

restating that he had been in contact with Ms. Nguyen and Ms. Ho leading up to trial,

they believed Mr. Brooks would be retained and he was not aware Appellant had

family. (7 RR at 98). Mr. Radosevich claimed to have sent Appellant nine letters and

memorandums explaining what was needed from family and friends to defend him.

(Id.).

         The State argued to the trial court, during the motion for new trial hearing, that

because Appellant took the stand during his trial, he offered “the sum total of the
                                             10
mitigation evidence” that would have been available. (6 RR at 11). The State misstated

the record and told the trial court Appellant testified at trial that he could not

remember the names of his childhood friends or their parents, when in fact; this

testimony was only regarding his co-defendants. (6 RR at 14). Additionally, the State

urged that Appellant testified at trial “he had no family, that his family was dead, that

he was alone.” (6 RR at 12). This is nowhere in the reporter’s record.




                                            11
                            SUMMARY OF THE ARGUMENT

      Appellant complains trial counsel was ineffective during the punishment phase

of his trial. Trial counsel did not call witnesses for punishment, who he knew were

willing to testify, or inquire into the background or family of the Appellant. Trial

counsel was clearly unprepared for trial and did not present any defensive theory.

                                      ARGUMENT

      ISSUE: TRIAL COUNSEL WAS INEFFECTIVE DURING THE PUNISHMENT
      PHASE BY FAILING TO INVESTIGATE APPELLANT’S BACKGROUND OR
      PRESENT ANY MITIGATION EVIDENCE.

      S TAN DARD     OF   R EV IEW

      Appellant was entitled to effective assistance of counsel at every stage of his

trial under the United States Constitution and the Texas Constitution. Wilkerson v.

State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). To prevail on his claim of

ineffective assistance of counsel, Appellant must show that (1) his counsel’s

performance was deficient and (2) a reasonable probability exists that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To

show deficiency, Appellant must prove by a preponderance of the evidence that

counsel’s representation objectively fell below the professional norms. Id. This Court

looks to the totality of the representation to determine effectiveness of counsel. Id. at

688-689. Because Appellant raised his ineffective assistance claim in a motion for new



                                            12
trial, the Court will review under an abuse of discretion standard. Charles v. State, 146

S.W.3d 204, 208 (Tex. Crim. App. 2004).



         A NALYSIS

         At only 23 years old, Appellant faced a potential life sentence at trial. Counsel is

expected, at a minimum, to use his professional judgment to prepare for trial and

advise his client. Strickland, 466 U.S. at 680-681; 104 S. Ct. at 2060-61. Mr. Radosevich

admittedly did not subpoena or call punishment witnesses to testify on behalf of the

Appellant, although he knew some were available. (7 RR at 99). His performance fell

below an objective standard of reasonableness; therefore, the first prong of Strickland

was met in support of Appellant’s motion for new trial. Id. The professional and

ethical responsibility of a criminal defense attorney includes the duty to locate,

interview, and call potential witnesses. The failure to do so constitutes ineffective

assistance of counsel. Ex parte Welborn, 785 S.W.2d 391, 394-395 (Tex. Crim. App.

1990).

         Mr. Radosevich attached a form letter to his first affidavit as an example of

how he prepares witnesses. (7 RR at 101). However, this is just that, a form letter. Mr.

Radosevich does not claim, nor provide proof, that a similar letter went to any

potential witnesses. Furthermore, this Court, has held that issuing a form letter to

delegate the task of developing character witnesses for punishment is not enough.

Lopez v. State, 462 S.W.3d 180, 187 (Tex. App. –Houston [1st Dist.] 2015). Trial
                                              13
counsel has a professional obligation to conduct reasonable investigation into the

defendant’s background and into his character. Id. The failure to interview and call

witnesses who are available to testify at the punishment stage and whose testimony

would have been beneficial to the defendant cannot be labeled as “sound trial

strategy.” Milburn v. State, 15 S.W.3d 267, 270 (Tex. App. – Houston [14th Dist.] 2000,

pet. ref’d).

       Mr. Radosevich put Appellant on the stand during both guilt innocence and the

punishment stage, but did not elicit any meaningful testimony from him. The jury was

left without any idea of where Appellant came from, where he lived, where he

worked, where he went to school, or if he was remorseful. The Supreme Court has

recognized that a failure to uncover and present mitigating evidence cannot be

justified as a tactical decision when defense counsel has not conducted a thorough

search of the defendant’s background. Wiggins v. State, 539 U.S. 510, 534 (2003).

       Not only did Mr. Radosevich not call character witnesses on behalf of

Appellant during the punishment stage, he began his closing punishment argument by

telling the jury “you didn’t hear from any of Mr. Truong’s family, and you can infer

that he doesn’t have any family, or you can infer that his family doesn’t like him.” (5

RR at 15). What reasonable, advocate would ever begin a punishment argument for a

violent offense by insinuating not even the defendant’s own family likes him? Mr.

Radosevich’s representation of the Appellant is truly baffling.



                                           14
       Based on the second prong in Strickland, it is reasonably probable that, but for

Mr. Radosevich’s unprofessional errors, the result of Appellant’s punishment stage

would have been different. For instance, consider the totality of the representation.

During guilt innocence, Mr. Radosevich plead not guilty for Appellant, waived open,

failed to cross examine State’s witnesses, last minute threw Appellant on the stand,

and waived close. He then proceeded to the punishment stage by failing to call any

character witnesses or offering meaningful mitigating evidence. Mr. Radosevich

continued in close to try and minimize the Appellant’s responsibility when the jury

had already convicted him. He also mentions in both affidavits that he believed

attorney Lott Brooks would be hired, thus implying he did not adequately prepare for

trial because he thought Mr. Brooks would be substituting in for Appellant. (7 RR at

97, 99).

       In contrast, a reasonable probability exists that Appellant’s sentence would

have been less severe had the jury balanced the aggravating and mitigating

circumstances. Mr. Radosevich could have plead guilty on behalf of Appellant at the

beginning of trial and gave an opening statement preparing the jury for what the

evidence was about to show. This would have allowed the jury to proceed to the

punishment stage already digesting that Appellant was accepting responsibility for the

offense and felt remorse. Had the jury been given the opportunity to hear Ms. Thai’s

testimony, they would have been able to weigh the facts that Appellant was in the

United States as a legal refugee and what he had faced as a young orphan in Vietnam.
                                           15
(7 RR at 103). The jury could have simply known, despite Mr. Radosevich’s close, that

Appellant had family that cared. Ms. Nguyen and Ms. Ho’s character testimony would

have humanized Appellant for the jury and shown a softer side of him to contrast

against the violent offender painted by the State. Mr. Radosevich should have

objected when the State misstated the law and the evidence and proclaimed to the jury

during punishment close “for the grace of God this is a capital murder.” (5 RR at 13).

Then the jury may not have returned a sentence typical of a murder conviction.



       C ONCLUSION

       The State argued at the end of the punishment phase that it is trial counsel’s job

to “protect his client and… beg for leniency because he is a young kid.” (5 RR at 21).

Agreed. This trial would have ended differently had Mr. Radosevich provided that

simple defense. Defense counsel is the voice of the defendant and what the defense

says or fails to say reflects on the defendant. Mr. Radosevich had six months to

prepare for the most important day in Appellant’s life. When that day came, he failed

his client, failed to be a zealous advocate and ultimately failed to be effective.




                                            16
                                       PRAYER

      Appellant prays this Court to reverse the trial court’s order denying Appellant’s

motion for new trial and remand the cause for a new punishment hearing pursuant to

article 44.29(b) of the Texas Code of Criminal Procedure.




                                               Respectfully submitted,




                                               _s/Tonya Rolland McLaughlin
                                               Tonya Rolland McLaughlin
                                               815 Walker St., Suite 1047
                                               Houston Texas 77002
                                               Phone: (713) 529-8500
                                               Fax: (713) 453-2203
                                               TBN 24054176


                              CERTIFICATE OF SERVICE

       This is to certify that a copy of the foregoing instrument has been delivered via
e-service to the following:

      curry_alan@dao.hctx.net
      Chief Prosecutor, Appellate Division
      Harris County District Attorney’s Office
      1201 Franklin Suite 600
      Houston, Texas 77002-1923

                                               _s/Tonya Rolland McLaughlin
                                               Tonya Rolland McLaughlin



                                          17
                         CERTIFICATE OF COMPLIANCE

       I certify that this computer-generated document has a word count of 3,015
words, based upon the representation provided by the word processing program used
to create the document.


                                            _s/Tonya Rolland McLaughlin
                                            Tonya Rolland McLaughlin




                                       18
