                                                                 ACCEPTED
                                                             12-15-00032-CR
                                                TWELFTH COURT OF APPEALS
                                                              TYLER, TEXAS
                                                        5/20/2015 4:20:40 PM
                                                               CATHY LUSK
                                                                      CLERK

         NO. 12-15-00031 CR
         NO. 12-15-00032 CR
                                             FILED IN
                IN THE                12th COURT OF APPEALS
                                           TYLER, TEXAS
                                      5/20/2015 4:20:40 PM
   TWELFTH COURT OF APPEALS                CATHY S. LUSK
                                               Clerk
     SITTING AT TYLER, TEXAS

  ___________________________


        MITZI GAIL ALLGOR,
            Appellant,

                   v.

       THE STATE OF TEXAS,
             Appellee.

 Appealed from the County Court at Law of
        Nacogdoches County, Texas
Trial Court Nos. CF1302373 and CF1302374

        APPELLANT’S BRIEF

                 Noel D. Cooper
                 Texas Bar No. 00796397
                 LAW OFFICES OF NOEL D. COOPER
                 117 North St., Suite 2
                 Nacogdoches, Texas 75961
                 Telephone: (936) 564-9000
                 Telecopier: (936) 715-6022
                 Email: noelcooper@noelcooper.com
                 ATTORNEY FOR APPELLANT,
                 MITZI GAIL ALLGOR

                 ORAL ARGUMENT REQUESTED
                          NO. 12-15-00031 CR
                          NO. 12-15-00032 CR

                         MITZI GAIL ALLGOR,
                             Appellant,

                                      v.

                        THE STATE OF TEXAS,
                              Appellee.


                   IDENTITY OF PARTIES & COUNSEL

     Appellant certifies that the following is a complete list of the parties,

attorneys, and any other person who has any interest in the outcome of this

lawsuit:

Noel D. Cooper
Texas Bar No. 00796397
LAW OFFICES OF NOEL D. COOPER
117 North St., Suite 2
Nacogdoches, Texas 75961
Telephone: (936) 564-9000
Telecopier: (936) 715-6022
Email: noelcooper@noelcooper.com
ATTORNEY FOR APPELLANT,
MITZI GAIL ALLGOR

Stephanie Stephens
State Bar No. 19160055
NACOGDOCHES COUNTY ATTORNEY
101 W. Main, Suite 233
Nacogdoches, Texas 75961
Telephone: (936) 560-7789
Fax: (936) 560-7809
Email: sstephens@co.nacogdoches.tx.us
ATTORNEY FOR APPELLEE


                                      -2-
MITZI GAIL ALLGOR
APPELLANT




                    -3-
                                    TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL .......................................................... 2

TABLE OF CONTENTS ................................................................................. 4

INDEX OF AUTHORITIES ........................................................................... 5
STATEMENT OF THE CASE ........................................................................ 7

ISSUES PRESENTED ................................................................................... 8

STATEMENT OF FACTS ............................................................................... 8
SUMMARY OF THE ARGUMENT...............................................................13

ARGUMENT AND AUTHORITIES ..............................................................13
        Issue 1:         Was Appellant’s trial counsel ineffective in his
                         representation of the Appellant? .....................................13

CONCLUSION ............................................................................................. 18

PRAYER .......................................................................................................19
CERTIFICATE OF COMPLIANCE ...............................................................19
CERTIFICATE OF SERVICE ....................................................................... 20




                                                      -4-
                                 INDEX OF AUTHORITIES

Case Law

Bell v. Cone, 535 U.S. 685, 152 L Ed 2d 914
      (2002) ................................................................................................. 15

Brooks v. State, 957 S.W.2d 30
     (Tex. Crim. App. 1997) ........................................................................ 17

Bryant v. State, 187 S.W.3d 397
     (Tex. Crim. App. 1995) ........................................................................ 15

Hernandez v. State, 988 S.W.2d 770
    (Tex. Crim. App. 1996) ........................................................................14

Hudson v. State, 145 S.W.3d 323
    (Tex. App.—Fort Worth 2004, pet. ref’d) ........................................... 17

Sanchez v. State, 222 S.W.3d 85
     (Tex. Crim. App. 2006) .......................................................................14

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
      (1984) ............................................................................................ 13, 14

United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657
     (1984) .................................................................................................. 15

United States v. Williamson, 53 F.3d 1500
     (10th Cir. 1995) ................................................................................... 15

Statutes

TEX. CODE CRIM. PROC.
      Article 42.12 .................................................................................. 16, 17

TEX. HEALTH & SAFETY CODE
      Section 481.121 ................................................................................ 7, 16




                                                      -5-
TEX. PENAL CODE
      Section 12.43 ....................................................................................... 17
      Section 38.03 .............................................................................7, 16, 17




                                                     -6-
                         NO. 12-15-00031 CR
                         NO. 12-15-00032 CR

                        MITZI GAIL ALLGOR,
                            Appellant,

                                    v.

                        THE STATE OF TEXAS,
                              Appellee.

                         APPELLANT’S BRIEF

     COMES NOW, Noel D. Cooper, court-appointed counsel for

Appellant, MITZI GAIL ALLGOR, in the above numbered cause, and files

this Appellant’s Brief and would show this Honorable Court as follows:

                     STATEMENT OF THE CASE

     Nature of the Case. Appellant was charged by information with

Resisting Arrest under TEX. PENAL CODE §38.03, a Class A misdemeanor.

The case was filed in the Nacogdoches County Court at law under Cause

Number CF1302373. Appellant was charged by information in a companion

case CF1302374 with Possession of Marijuana of an amount under two

ounces under TEX. HEALTH & SAFETY CODE §481.121, a Class B

misdemeanor.

     Course of Proceedings. On October 13, 2014, a jury was selected, and

evidence was opened and closed on November 20, 2014. The punishment

hearing was held on January 8, 2015.


                                    -7-
     Trial Court Disposition. The jury found Appellant guilty of Resisting

Arrest and Possession of Marijuana. The trial court assessed punishment at

240 days and 120 days, respectively, to run concurrently.

                          ISSUES PRESENTED

     Issue 1:      Was Appellant’s trial counsel was ineffective in his

representation of the Appellant during the jury trial?

                        STATEMENT OF FACTS

     Jury Selection.

     Appellant’s trial counsel made no objections during the voir dire. RRS

passim.

     Opening Statements

     Appellant’s trial counsel did not make any objections to the State’s

opening statement. RR 1:passim. During his opening statement,

Appellant’s trial counsel was into his fourth sentence, 41 words, when the

State’s objection to the argumentative nature of the opening was sustained.

RR 1:14. After the objection was sustained, Appellant’s trial counsel said

three more sentences, 17 words, and ceased. RR 1:15.

     Brett Ayers

     The state’s first witness was Brett Ayers, a police officer for the City of

Nacogdoches. RR 1:15. Officers with the Nacogdoches Police Department



                                      -8-
are allowed to work extra duty jobs and wear their uniform. RR 1:18. On

October 8, 2013, Officer Ayers was working as a security guard at Eastwood

Terrace Apartments in the City of Nacogdoches. RR 1:19-20. Mr. Ayers

identified Ms. Allgor. RR 1:20-21. Mr. Ayers noticed a vehicle operating at a

high rate of speed. RR 1:21. He pursued it in his private vehicle, and while

doing so observed the other vehicle drive through parking spaces to avoid

speed bumps. RR 1:22-23. When the vehicle stopped he pulled in behind

and determined that it was operated by Ms. Allgor. RR 1:23.

     There was one other person with Ms. Allgor who he allowed to go, but

he said Ms. Allgor was not free to go. RR 1:24. While talking to Ms. Allgor,

she became very excited. RR 1:25. She told Mr. Ayers that she believed she

had a warrant for her arrest. RR 1:26. Ms. Allgor began yelling at a female

person to come and get her purse. RR 1:27. Mr. Ayers told her that the

other person could not come and get her purse. RR 1:27. After the other

person who was identified as Ms. Allgor’s teenage daughter complied with

Mr. Ayers, Ms. Allgor began dropping the contents of her purse on the

floorboard of her vehicle and began reaching down to the contents. RR

1:27-28. Mr. Ayers told her to show her hands, but she pressed something

against her leg. RR 1:29. He told her to show what was in her hands and she

wouldn’t comply. RR 1:30. Ms. Allgor took her left hand and tried to roll up



                                     -9-
the car window, and Mr. Ayers stopped her. RR 1:31. Ms. Ayers then threw

the object in her right hand out the passenger window. RR 1:31. Mr. Ayers

illuminated the ground with his flashlight and observed a clear plastic bag

that contained what he thought was marijuana. RR 1:31-32.

     Ms. Allgor began to “struggle” to stay in the vehicle. RR 1:32. While

trying to get her out, she threw out her purse, too. RR 1:32. Mr. Ayers

grabbed her left arm to try to pull her out, and she starting twisting and

turning, and she kicked him in his legs. RR 1:33. Mr. Ayers was able to cuff

Ms. Allgor’s hands behind her back while she was standing. RR 1:34.

During this time, Ms. Allgor was calling on the young man and woman on

the passenger’s side of her vehicle to “get it.” RR 1:35. Mr. Ayers pulled Ms.

Allgor around to the passenger side of her vehicle and discovered two

baggies. RR 1:36-37. Ms. Allgor then put her foot on one of the baggies and

started grinding it into the ground, destroying one of the two baggies. RR

1:37-38. After putting Ms. Allgor on the ground, he was required to

threaten the young male with pepper spray to back off. RR 1:38-39.

     After Ms. Ayers’s backup arrived, he searched Ms. Allgor’s vehicle and

discovered a cigar filled with a green leafy substance which he believed to

be marijuana in the closed, front middle console. RR 1:40-41. Inside State’s

Exhibit 2 was a green leafy substance that he believed was marijuana. RR



                                     -10-
1:42. State’s Exhibit 3 appeared to be a hand rolled cigarette or cigar. RR

1:44. Mr. Ayers testified that both State’s Exhibits 2 and 3 were a usable

quantity of marijuana. RR 1:45.

      Mr. Ayers testified that Eastwood Terrace was in the City of

Nacogdoches. RR 1:72.

      Christy Bruton

      The state’s next witness was Christy Bruton, an officer with the

Nacogdoches Police Department who handles evidence. RR 1:62.

Misdemeanor amounts of marijuana are not sent to the DPS crime lab for

analysis but instead stored in the evidence drug room. RR 1:63-64. State’s

Exhibits 1, 2, and 3 were logged in and stored by Ms. Bruton. RR 1:64. Once

this matter was set for trial, Ms. Bruton transported State’s Exhibits 1, 2,

and 3 to the DPS crime lab in Tyler. RR 1:64-65.

      Caroline Allen

      Caroline Allen was a forensic scientist employed by the DPS crime lab

in Tyler, Texas. RR 1:66. She testified as to the chain of custody of Exhibits

1, 2, and 3. RR 1:66-68. Exhibit 2 weighed 8.2 grams. RR 1:69. After

weighing Exhibit 2, she confirmed that it contained marijuana. RR 1:70.

Exhibit 3 contained 1.28 grams of marijuana. RR 1:70.

      Mitzi Gail Allgor



                                     -11-
     During the punishment hearing, Ms. Allgor took the stand. RR 2:8.

She testified that she was living with her three children and a grandchild.

RR 2:8. She testified that her two oldest children have schizophrenia and a

heart condition, respectively. RR 2:8-9. Ms. Allgor was responsible for the

wellbeing of four minor children. RR 2:11. There were no other adults who

could help her take care of her children. RR 2:12. Ms. Allgor testified that

she had been to prison and had some misdemeanor trouble, but she had

mostly stayed out of trouble. RR 2:13-14. Ms. Allgor’s son with

schizophrenia required constant watching. RR 2:16.

     On cross examination, Ms. Allgor conceded that she had been

arrested and convicted on several occasions between 1993 and 2014. RR

2:17-22. She would not concede that she was guilty of the offenses in this

appeal. RR 2:22-23. Ms. Allgor said that she was sorry. RR 2:26.

     Closing Argument

     During his closing argument, Ms. Allgor’s trial counsel, Lee

Westmoreland, told that trial court that punishment was warranted , and

he requested that she be sentenced to 30 days in jail. RR 2:28. During a

discussion with the trial court judge, the following exchange took place:

     THE COURT: . . .All right. Your client, based on the argument is to go
     to jail today, is that what you're saying?
     MR. WESTMORELAND: Obviously.


                                    -12-
      THE COURT: You say go to jail for 30 days and she is saying 300
      days, or whatever. Doesn't matter how long, she is going to jail.
      MR. WESTMORELAND: She is not eligible for probation.
RR 2:32 (emphasis added).

      After a recess, the trial court came back on the record for his ruling

and stated on the record that “the law doesn’t allow you any probation. And

I believe resisting arrest with priors is a minimum of 90 days. It can’t be 30

days.” RR 2:34. There was no objection by Mr. Westmoreland to the trial

court’s comments on the law. RR 2:34.

                   SUMMARY OF THE ARGUMENT

      Appellant’s sole issue is that Appellant’s trial counsel was ineffective.

Assuming that trial counsel’s failure to contest the State’s case in chief

during the guilt/innocence stage of the trial, Appellant’s trial counsel was

ineffective by not understanding the law, making an erroneous judicial

admission, and failing to correct errors of the trial court regarding

Appellant’s probation eligibility.

                   ARGUMENT AND AUTHORITIES

     Issue 1: Appellant’s trial counsel was ineffective in his
representation of the Appellant during the jury trial.
                           Argument & Authorities

      The adequacy of counsel’s representation is evaluated using the two-

part standard articulated by Strickland v. Washington, 466 U.S. 668, 694,


                                     -13-
104 S.Ct. 2052, 2068 (1984) and adopted by Hernandez v. State, 988

S.W.2d 770, 772 (Tex. Crim. App. 1996). Sanchez v. State, 222 S.W.3d 85,

90 (Tex. Crim. App. 2006). The test is: 1) whether the attorney’s

performance fell below an objective standard of reasonableness under

prevailing professional norms, and 2) whether there is a reasonable

probability that, but for counsel’s unprofessional errors, the results of the

proceedings could have been different. Id. Reasonable probability is a

probability sufficient to undermine confidence in the outcome. Hernandez

v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986).

      The reviewing court begins with the presumption that counsel’s

actions and decisions were reasonably professional and motivated by sound

trial strategy. Sanchez, 222 S.W.3d at 90. The party challenging counsel’s

effectiveness has the burden to rebut the presumption by presenting

evidence. Id. at 90.

      Appellant’s trial counsel was ineffective.

      In the present case, the record shows that trial counsel’s performance

affected the outcome of the case as required by the Strickland test. See

Strickland v. Washington, 466 U.S. 668, 694-95, 104 S.Ct. 2052, 2068

(1984). Strickland requires that, to show ineffective assistance of counsel,

an appellant must prove that his attorney’s representation fell below an



                                     -14-
objective standard of reasonableness under the prevailing professional

norms and that there is a reasonable probability that, but for those

unprofessional errors, the result of the proceeding would have been

different. Id. at 694-95.

      The United States Supreme Court recognized a limited exception to

Strickland, holding that “if counsel entirely fails to subject the

prosecution's case to meaningful adversarial testing, then there has been a

denial of Sixth Amendment rights that makes the adversary process itself

presumptively unreliable.” United States v. Cronic, 466 U.S. 648, 658-59,

104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). For Cronic to apply, however, the

attorney's failure to test the prosecutor's case "must be complete." Bell v.

Cone, 535 U.S. 685, 696-97, 152 L Ed 2d 914 (2002). Courts have

sometimes found this complete failure where counsel abandons his client in

closing argument by conceding his guilt. See United States v. Williamson,

53 F.3d 1500, 1511 (10th Cir. 1995) (collecting cases in which closing

statements admitting guilt on the only disputed fact issues was Cronic

error).

      “A defendant in a criminal case may stipulate to evidence against him.

If the defendant elects to do this, his stipulation is a kind of judicial

admission.” Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 1995).



                                    -15-
“Judicial admissions are not evidence at all. Rather, they are formal

concessions in the pleadings in the case or stipulations by a party or counsel

that have the effect of withdrawing a fact from issue and dispensing wholly

with the need for proof of the fact.” Id. (citing 2 JOHN W. STRONG,      ET AL.,

MCCORMICK ON EVIDENCE § 255 (5th ed.1999)).

      An express waiver, made in court or prepatory to trial, by the party or
      his attorney, conceding for the purposes of the trial the truth of some
      alleged fact, has the effect of a confessory pleading, in that the fact is
      thereafter to be taken for granted; so that the one party need offer no
      evidence to prove it, and the other is not allowed to disprove it. This is
      what is commonly termed a solemn — i.e., ceremonial or formal — or
      judicial admission, or stipulation. It is, in truth, a substitute for
      evidence, in that it does away with the need for evidence.
Id. (citing 9 WIGMORE      ON   EVIDENCE § 2591 (3d ed.1940) (emphasis

deleted)).

      Irrespective of trial counsel’s performance or lack thereof during the

guilt-innocence stage of the trial, it was during the punishment hearing that

the ineffectiveness became readily apparent. As discussed above, Ms.

Allgor’s trial counsel told the trial court that she was not eligible for

probation from the judge. RR 2:32. This is a complete misstatement of the

law. Resisting Arrest is a Class A misdemeanor. TEX. PENAL CODE §38.03(c).

Possession of Marijuana in an amount of two ounces or less is a Class B

misdemeanor. TEX. HEALTH & SAFETY CODE § 481.121(b)(1). Neither offense

is a “3g” offense. See TEX. CODE CRIM. PROC. art. 42.12 §3g. Accordingly, Ms.


                                      -16-
Allgor was eligible for probation from the trial court. See TEX. CODE CRIM.

PROC. art. 42.12 §3(a). However, the trial court took Mr. Westmoreland and

his word and told Ms. Allgor that she was not eligible for probation. RR

2:34.

        Further, the trial court misstated the law with regard to the minimum

sentence for resisting arrest. Specifically, the trial court stated, “I believe

resisting arrest with priors is a minimum of 90 days. It can’t be 30 days.”

RR 2:34. This is a misstatement of law. Nowhere in the statute dealing with

Resisting Arrest does it state that the minimum confinement for a

subsequent offense is 90 days in jail. TEX. PENAL CODE §38.03 passim. The

likely basis of this assertion is that, under certain circumstances, the

minimum confinement for a Class A misdemeanor can be increased to 90

days. TEX. PENAL CODE §12.43(a)(2). However, that minimum confinement

is not the only allowable punishment. TEX. PENAL CODE §12.43(a)(1),(3).

More importantly, the State did not provide Ms. Allgor or her trial counsel

with any notice that it was seeking to enhance the punishment under

Section 12.43. CR passim. Because she was not provided with any notice

that the State sought to enhance her punishment as to either charge, her

prior convictions did not operate to change the minimum punishments. See

Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997); Hudson v.



                                     -17-
State, 145 S.W.3d 323, 326 (Tex. App.—Fort Worth 2004, pet.

ref’d)(holding that notice given to defendant before punishment hearing

but after commencement of guilt-innocence was untimely). Ms. Allgor’s

trial counsel made no objections to the trial court’s statements about the

minimum confinements or probation eligibility when it could have changed

the outcome. RR 2:passim.

                              CONCLUSION

     By telling the trial court that Ms. Allgor was not eligible for probation,

he effectively took that issue out of contention, and failed to subject the

State’s case to adversarial testing. Ms. Allgor was already on probation in

another case. RR 2:31. Further, there was discussion back and forth

regarding what types of conditions could be placed on Ms. Allgor should

she receive probation on this matter. RR 2:31. However, based on Mr.

Westmoreland’s statements, the trial court told Ms. Allgor that she could

only go to jail. RR 2:32. It was clear from Ms. Allgor’s testimony that she

wanted probation, and it is inconceivable that a misstatement of law would

be trial strategy. As such, Ms. Allgor was undoubtedly harmed, and the

performance of her trial counsel unfortunately had a profound effect upon

the outcome of the case.




                                     -18-
                                   PRAYER

      Appellant prays that the Court reverse the judgment of the trial court

convicting her of Resisting Arrest and Possession of Marijuana and remand

this matter to trial court for a new trial. In the alternative, Appellant prays

that the Court reverse the judgment of the trial court and remand this

matter to the trial court for a new trial on punishment. Appellant prays for

any further relief to which she is entitled.

                                        Respectfully submitted,


                                        /s/Noel D. Cooper
                                        Noel D. Cooper
                                        Texas Bar No. 00796397
                                        LAW OFFICES OF NOEL D. COOPER
                                        117 North St., Suite 2
                                        Nacogdoches, Texas 75961
                                        Telephone: (936) 564-9000
                                        Telecopier: (936) 715-6022
                                        Email: noelcooper@noelcooper.com
                                        ATTORNEY FOR APPELLANT,
                                        MITZI GAIL ALLGOR


                    CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this document is

computer generated and contains 2,463 words based on a computer word

count.

                                        /s/Noel D. Cooper
                                        NOEL D. COOPER


                                      -19-
                     CERTIFICATE OF SERVICE

     I certify that I delivered a copy of this Appellant’s Brief to each

attorney of record or party in accordance with the Texas Rules of Appellate

Procedure on May 20, 2015, at the addresses and manners below.


Stephanie Stephens
State Bar No. 19160055
NACOGDOCHES COUNTY ATTORNEY
101 W. Main, Suite 233
Nacogdoches, Texas 75961
Telephone: (936) 560-7789
Fax: (936) 560-7809
Email: sstephens@co.nacogdoches.tx.us
Via Electronic Filing Manager




                                  /s/Noel D. Cooper
                                  Noel D. Cooper
                                  Attorney for Appellant




                                   -20-
