                                                                           ACCEPTED
                                                                      01-14-00895-CR
                                                            FIRST COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                 3/13/2015 4:16:25 PM
                                                                  CHRISTOPHER PRINE
                                                                               CLERK
                         No. 01-14-00895-CR

                     IN THE COURT OF APPEALS
                          FIRST DISTRICT              FILED IN
                                               1st COURT OF APPEALS
                         HOUSTON, TEXAS            HOUSTON, TEXAS
                                               3/13/2015 4:16:25 PM
                                               CHRISTOPHER A. PRINE
                    LAMAR MARCELL HUNTER,              Clerk

                           Appellant

                                Vs.

                      THE STATE OF TEXAS,
                            Appellee



              ON APPEAL FROM CAUSE NO. 12-CR-1921
            th
          10 DISTRICT COURT, GALVESTON COUNTY, TEXAS
           HONORABLE KERRY L. NEVES JUDGE PRESIDING

                    BRIEF FOR THE APPELLANT



Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
Counsel for Appellant
TBN: 240429432
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071
Email: kyle@verretlaw.com

ATTORNEY FOR APPELLANT            ORAL ARGUMENT REQUESTED
DATE: March 13, 2015
                               No. 01-14-00895-CR

                             IN THE COURT OF APPEALS
                                  FIRST DISTRICT
                                 HOUSTON, TEXAS


                          LAMAR MARCELL HUNTER,
                                 Appellant

                                        Vs.

                             THE STATE OF TEXAS,
                                   Appellee


                          BRIEF FOR THE APPELLANT



TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

LAMAR MARCELL HUNTER, the Defendant in Cause 12-CR-1921 in the

DISTRICT COURT, Galveston County, Texas, respectfully submits this brief, and

would respectfully show the Court the following:




                                          i
                             TABLE OF CONTENTS

Parties to the Case…………………………………………………………………….iv

List of Authorities…………………………………………………………………….vi

Statement of the Case……………………………………………………………….viii

Statement Regarding Oral Argument………………………………………………..viii

Issues Presented……………………………………………………………………….ix

Summary of the Argument……………………………………………………….…….1

Appellant’s First Point of Error…………………………………………………….....10

   The trial court’s certificate of defendant’s right to appeal erroneously limits
   Appellant’s appeal in this matter to error in the punishment hearing. Appellee
   agrees that the trial court’s certificate improperly limits Appellant’s right to
   appeal.

    Standard of Review and Applicable Law……………………………………..10

    Relevant Facts………………………………………………………………...10

    Analysis……………………………………………………………………..…11

Appellant’s Second Point of Error…………………………………………………....12

   The trial court abused its discretion by denying Appellant’s motion for new
   trial on the basis of ineffective assistance of counsel. Viewing the evidence in
   a light most favorable to the trial court’s ruling, there is no reasonable view
   of the record to support the finding that trial counsel did not render
   ineffective assistance of counsel sufficient to undermine confidence in the
   outcome of the proceedings. Trial counsel was ignorant of a point of law
   fundamental to Appellant’s case that resulted in his failure to adequately
   advise Appellant. On account of trial counsel’s errors, Appellant’s plea was
   entered neither knowingly nor voluntarily.

    Standard of Review and Applicable Law………………………………………12

    Analysis………………………………………………………………………...14
                                          ii
     Deficient Performance………………………………………………………...15

     Trial counsel’s ignorance of the law applicable to Appellant’s case
     was unreasonable performance for defense counsel; his deficient
     performance was compounded by advising Appellant to plead guilty
     and seek deferred adjudication from the trial court

     Harm…..………………………………………………………….…………...19

    There is a reasonable probability, sufficient to undermine confidence
    in the outcome of the case, that but for counsel’s errors, the outcome
    of the proceedings against Appellant would have been different.

Conclusion and Prayer……………………………………………………………......24

Certificate of Service……………………………………………................................25

Certificate of Word Count…………………………………...……………….……….25

Appendix……………………………………………………………………….……..26




                                        iii
                               PARTIES TO THE CASE

APPELLANT:                LAMAR MARCELL HUNTER
Attorney for Appellant at Trial:

             Name:         Anthony Hernandez
             SBN:          09515550
             Address:      917 Franklin, Suite 320
                           Houston, Texas 77002
             Phone:        (713) 227-9200
             Fax:          (713) 227-9206

Attorney for Appellant at Motion for New Trial:

             Name:         Joel Bennett
             SBN:          00787069
             Address:      1100 Nasa Parkway, Suite 302
                           Houston, Texas 77058
             Phone:        (281) 389-2118
             Fax:          (866) 817-5155

Attorney for Appellant on Appeal:
             Name:       Joseph Kyle Verret
             SBN:        24042932
             Address:    The Law Office of Kyle Verret, PLLC
                         11200 Broadway, Suite 2743
                         Pearland, Texas 77584
             Phone:      (281) 764-7071
             Fax:        (281) 764-7071
             Email:      kyle@verretlaw.com

APPELLEE:                  THE STATE OF TEXAS

Attorney’s for the State at Trial:

             Name:         Xochitl Vandiver-Gaskin
             SBN:          2402939
             Address:      600 59th Street, Suite 100
                           Galveston, Texas 77550
             Phone:        (409) 766-2355
             Fax:          (409) 766-2290

                                            iv
Attorney for the State on Appeal:

            Name:        Virginia Rebecca Klaren
            SBN:         24046225
            Address:     Galveston County Criminal District Attorney’s Office
                         600 59th Street, Suite 100
                         Galveston, Texas 77551
            Phone:       (409) 766-2355
            Fax:         (409) 766-2290




                                         v
                           LIST OF AUTHORITIES
Constitutional Provision
U.S. CONST. AMEND. V…………………………………………………………….21
U.S. CONST. AMEND. VI……………………………………………………………12
U.S. CONST. AMEND. XIV……………………………………………………….…21
TEX. CONST. ART. I, § 10……………………………………………………..…….12
Statutes
Tex. Code Crim. Proc. Ann. Art. 44.02 (West Supp. 2013)………………………….10
Tex. Code. Crim. Proc. Ann. Art. 42.12 § 5(a) (Vernon Supp. 2003)………….…….13
Tex. Code Crim. Proc. ann. 42.12 § 4 (Vernon Supp. 2003)………………………....21
Rules
Tex. R.App. P. 25.2(a)(2)…………………………………………………………….10
Appellate Decision
Anthony v. State, No. 07-13-00890-CR, 2015 Tex. App. Lexis 1484 (Tex. App-
Amarillo, February 12, 2015)……………………………………………………..16,19
Ex parte Battle, 817 S.W. 2d. 81 (Tex. Crim. App. 1991)……………………..….14,16
Ex parte Mable, 443 S.W. 3d 129, (Tex. Crim. App. 2014)………………………….14
Ex parte Moody, 991 S.W. 2d 856 (Tex Crim. App. 1999)…………………………..14
Ex parte Moussazadeh, 361 S.W. 3d 684…………………………………………....16
Hernandez v. State, 726 S.W. 2d 53 (Tex. Crim. App. 1986)…………….……….....12
Hinton v. Alabama, 134 S. Ct. 1081, 188 L. Ed. 2d 1 (U.S. 2014)……….………13,16
Hornell v. State, No. 14-98-01082-CR, 2000 Tex. App. Lexis 4771 (Tex. App. Houston
    [14th Dist.] July 20, 2000, pet. ref’d) (mem. op., not designated for
    publication)……………………………………………………………………....21
Lewis v. State, No. 05-94-01137-CR, 1996 Tex. App. Lexis 463 (Tex. App. -- Dallas
    Jan. 17, 1996, pet. ref’d)(mem. op., not designated for publication)……………21
Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App. 2013)………………………12,24



                                        vi
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)……………………………………………………………....12,13,14,16,23,24
Wert v. State, 383 S.W. 3d. 747 (Tex. App. – Houston -14th Dist.] 2012, no
pet.)…………………………………………………………………….………….13,19
United States v. Grammas, 376 F. 3d 433, 436 (5th Cir. Tex. 2004)……….…...16,17,23




                                       vii
                             STATEMENT OF THE CASE

          Appellant was charged by indictment with the offense of Aggravated Sexual

Assault of a Child, a first degree felony. (C.R. at 5). Defendant entered a plea of

guilty to the charged offense without an agreed recommendation for punishment on

March 5, 2014. (C.R. at 25). Defendant waived his right to a trial by jury and elected

to have the trial court assess punishment. (2 R.R. at 5). After a hearing on the issue of

punishment, Appellant was sentenced to twenty years confinement in the Institutional

Division of the Texas Department of Criminal Justice. (C.R. at 36).

          Appellant filed a motion for new trial on September 26, 2014. (C.R. at 45).

The court heard the motion for new trial on November 4, 2014. (3 R.R). The trial

court denied the motion for new trial on November 4, 2014. (C.R. at 52). Notice of

appeal was filed by Appellant on November 4, 2014. (C.R. at 56).

         An agreed motion to abate this appeal to the trial court was filed on April 3,

2015. See Appendix A. The motion has not been ruled on at the time of filing of this

brief.

                  STATEMENT REGARDING ORAL ARGUMENT

         Appellant requests oral argument. Appellant avers that oral argument would be

appropriate to discuss the prejudice Appellant suffered on account of trial counsel’s

errors.




                                           viii
                                 ISSUES PRESENTED

Appellants First Point of Error:

The trial court’s certificate of defendant’s right to appeal erroneously limits

Appellant’s appeal in this matter to error in the punishment hearing. The Appellee

agrees that the trial court’s certificate improperly limits Appellant’s right to appeal.

Appellants Second Point of Error:

The trial court abused its discretion by denying Appellant’s motion for new trial on the

basis of ineffective assistance of counsel. Viewing the evidence in a light most

favorable to the trial court’s ruling, there is no reasonable view of the record to support

the finding that trial counsel did not render ineffective assistance of counsel sufficient

to undermine confidence in the outcome of the proceedings.              Trial counsel was

ignorant of a point of law fundamental to Appellant’s case that resulted in his failure to

adequately advise Appellant. On account of trial counsel’s errors, Appellant’s plea

was entered neither knowingly nor voluntarily.




                                             ix
                         SUMMARY OF THE ARGUMENT

      Appellant’s trial counsel rendered ineffective assistance of counsel causing

Appellant to waive his right to a trial by jury on guilt-innocence, enter a plea of guilty,

and elect for the trial judge to decide punishment. Trial counsel’s performance was

deficient where counsel was ignorant of an important point of law applicable to

sentencing in Appellant’s case: for a trial court to order a defendant to serve a term of

deferred adjudication for the offense of aggravated sexual assault of a child, the court

must make a factual finding that the order deferring adjudication is in the best interest

of the victim. Trial counsel’s ignorance of this important aspect of sentencing in

Appellant’s case resulted in counsel’s failure to advise Appellant of this provision.

Trial counsel’s ignorance of the law also resulted in trial counsel advising Appellant

that the best course of action was to plead guilty and request deferred adjudication

from the trial court.

      Appellant’s resulting guilty plea was neither knowing nor voluntary as it was

entered into with a flawed understanding of the law applicable to his case.

Had Appellant known that the best interests of the victim was a necessary

consideration by the trial court, Appellant would not have pled guilty to the trial court

and would not have submitted the issue of punishment to the trial court; instead,

Appellant would have demanded a jury trial on guilt-innocence and punishment.




                                            1
                              STATEMENT OF FACTS

The Charge and Plea

      Appellant was charged by indictment with the offense of aggravated sexual

assault of a child, against A.P., alleged to have occurred on or about the 19th day of

April 2012. (CR at 5). Appellant retained Mr. Anthony Hernandez as his trial counsel.

(C.R. at 14).

      Appellant pled guilty to the charge offense with no agreed recommendation and

asked the trial court to assess his punishment. (C.R. at 25-26). The guilty plea was

not transcribed by the court reporter and is not part of the record.

Punishment Trial Testimony

Detective Danielle Herman

      Detective Herman of La Marque Police Department testified that she

investigates primarily family violence, sexual assault and child abuse allegations. (2

R.R. at 8). She testified that the name Amy Peterson, A.P. , is a pseudonym used in the

investigation of this case to protect the child complainant.           (2 R.R. at 11-12).

Detective Herman became involved in this matter after Children’s Protective Services

had been contacted regarding an allegation of abuse. (2 R.R. at 12).        In conducting

her investigation, Detective Herman had the Child Advocacy Center interview A.P.

Herman interviewed A.P.’s mother, who she believed to be the outcry witness, and

other adults involved. (2 R.R. at 13). A.P. was 17 years old at the time of the




                                             2
investigation, and was believed to be ten years old at the time the alleged conducted

was to have occurred. (2 R.R. at 13).

       Detective Herman also interviewed Appellant.          (2 R.R. at 14).     Appellant

confirmed that A.P. had lived with him and corroborated some details about the

residence where he and A.P. had lived together. (2. R.R. at 15).

       There was no physical evidence collected due to “the difference in when the

offenses occurred and they were reported and investigated.” (2 R.R. at 16).

Amy Peterson (A.P.)

       The complainant, A.P., testified under her true name at trial. (2 R.R. at 21). She

testified that she was studying Nursing at the College of the Mainland. (2 R.R. at 21).

She grew up and graduated from high school in La Marque. (2 R.R. at 22). The

Appellant is A.P.’s cousin, the nephew of her father. (2 R.R. at 23). When A.P. was

nine years old she lived with Appellant at his father’s house. (2 R.R. at 24). She

testified that she lived in Appellant’s father’s house with her parents during the

summer before she started fourth grade.          (2 R.R. at 26-27).    A.P. testified that

Appellant was living in the same home and by then he was a married adult. (2 R.R. at

32).

       A.P. testified that while she was living there, Appellant raped her. (2 R.R. at

27). A.P. testified that this happened at least five times, during the day. (2 R.R. at 30).

       A.P. testified that she did not want to tell anyone because she didn’t want to get

in trouble. (2 R.R. at 31). She testified that after she and her parents moved out, she

                                             3
“thought it wasn't really a big deal anymore until it started affecting [her].” (2 R.R. at

32). She testified that something she saw on television, combined with Appellant’s

presence in her life, caused her to finally tell her mother what had happened. (2 R.R.

at 34-35).

       A.P. testified that her disclosure broke the Hunter family apart. (2 R.R. at 36-

37). A.P. testified that her father “became torn between his nephew and his daughter.”

(2 R.R. at 37). She feels that her family has turned on her since her outcry. (2 R.R. at

28).   A.P. testified that she is afraid because she doesn’t know whether Appellant

would harm her. (2 R.R. at 40).

Jennifer Hunter

       Jennifer Hunter is A.P.’s mother and Appellant’s aunt. (2 R.R. at 44). She

testified that A.P. was nine years old when they lived for a summer in the same house

with Appellant. (2 R.R. at 44-46). Jennifer Hunter testified that Appellant was in his

twenties when they were in the home. (2 R.R. at 46).

       Jennifer Hunter testified that one day they were watching television and a scene

played in which “little girl was laying in bed and someone came in and sat next to her

and start stroking her,” then A.P. put her hands over her ears and looked horrified. (2

R.R. at 47). Jennifer Hunter testified that A.P. ran from the room, and eventually told

Jennifer that the Appellant had raped her. (2 R.R. at 47).

       She testified that A.P. was approximately fifteen at the time of the outcry. (2

R.R. at 47). She testified that A.P. asked her not to tell anyone, so she did not. (2 R.R.

                                            4
at 48). The outcry was eventually disclosed during a visit to A.P.’s doctor. (2 R.R. at

50).

       Jennifer Hunter testified that since the outcry became public, she and A.P. have

experienced hardship. She testified that A.P. has been scared since she shared her

outcry. (2 R.R. at 52). On one occasion, someone blocked their driveway and chased

A.P. “down the highway.” (2 R.R. at 51). Jennifer separated from her husband

because he was not supporting A.P. (2 R.R. at 51). Jennifer testified that A.P. is

getting no support from extended family. (2 R.R. at 52).

Nicole Hunter

       Ms. Nicole Hunter, the wife of Appellant for nine years, testified. (2 R.R. at

57). She has known Appellant since the sixth grade. (2 R.R. at 57). She testified that

he is a good father and that she has no concerns of him spending time with their

children. (2 R.R. at 56-64).

Geoffrey Hunter

       Geoffrey Hunter, who is A.P.’s father and Appellant’s uncle, testified. (2 R.R. at

64). He is a pastor. (2 R.R. at 65). He testified that “by punishing [Appellant] to the

highest degree, will not -- it's going to just make everything much worse between both

families. I don't want to see him away from his family.” (2 R.R. at 67).

Appellant




                                            5
         Appellant testified in his defense.   (2 R.R. at 70). He completed high school

and some college. (2 R.R. at 70). He worked as a union boilermaker. (2 R.R. at 71).

He is a father of two. (2 R.R at 71).

         He testified that he was twenty-five at the time of the alleged offense, and is

now thirty-five. (2 R.R. at 72). He testified that he has changed since the time of the

offense; at the time, he did not realize the severity or consequences of what he was

doing. (2 R.R. at 72).

         After the hearing, the trial court sentenced Appellant to twenty years

confinement. (C.R. at 36-39).

Motion for New Trial

         Appellant retained Mr. Joel Bennett as counsel for Appellant’s motion for new

trial.    (C.R. at 45-51).     Appellant’s motion alleged that trial counsel rendered

ineffective assistance of counsel by failing to properly advise Appellant of the special

factual finding regarding the best interest of the victim. (C.R. 49-51). The motion

further alleged that, on account of trial counsel’s deficient performance, Appellant’s

plea of guilty and waiver of his right to a jury trial were not made knowingly and

voluntarily. (C.R. at 48, 50-51).

Anthony Hernandez

         Trial counsel, Mr. Anthony Hernandez, testified during the motion for new trial

hearing.      (3 R.R. at 6).     Trial counsel testified that he met with Appellant

approximately a dozen times over the course of their attorney-client relationship. (3

                                               6
R.R. at 7).   Appellant’s wife, Nicole Hunter, was present during some of these

conversations. (3 R.R. at 9)

      Trial counsel testified that he advised Appellant of the possible outcomes of his

case. (3 R.R. at 8). He testified that he advised Appellant that probation was available

for the charged offense, but not guaranteed. (3 R.R. at 8-9). Appellant and trial

counsel agreed that their goal was to have Appellant receive community supervision.

(3 R.R. at 9). Trial counsel testified that he knew that since the offense supposedly

occurred in 2004, that the Appellant would have been eligible for non-deferred

community supervision from a jury, but not from the judge. (3 R.R. at 10). Trial

counsel testified that there had been multiple conversations between himself and the

prosecutor, with Appellant present, that while Appellant was eligible for deferred

adjudication, that the State was opposed to probation. (3 R.R. at 19). Trial counsel

testified that the court also explained the availability of deferred adjudication and the

penalty range. (3 R.R at 19).

      Trial counsel advised Appellant that he would be eligible for probation from

either the judge or a jury. (3 R.R. at 8). After numerous discussions with Appellant,

trial counsel advised Appellant that he should plead guilty, request a presentence

investigation, and have the judge assess punishment. (3 R.R. at 9). Trial counsel

advised Appellant that he believed he was “a good candidate for… deferred.” (3 R.R.

at 21). Trial counsel admitted that he never discussed the requisite finding regarding

the best interest of the victim with Appellant prior to his plea. (3 R.R. at 11). Trial

                                           7
counsel was not aware of the required finding until new trial counsel contacted him.

(3 R.R. at 22).

      In response to the question of what types of facts the trial court might consider

in making its determination regarding the victim’s best interest, trial counsel

responded:

      I understand it was a bad thing, but it was a family involved. And I
      explained to Mr. Hunter that going the route that we wanted to go
      would be in his best interest and his wife's best interest and his
      family's best interest; but maybe more importantly so, the victim's
      best interest and her family's best interest. We did discuss things like
      that and that's why we wanted –
      (3 R.R. at 12).

      Trial counsel’s explanation of how Appellant being granted deferred would be in

A.P.’s best interest was: “So that she would not be subjected of having to go through a

full-blown trial that would be quite traumatic on a young lady that’s been involved in

something like this.” (3 R.R. at 13). Trial counsel stated that he called a witness,

A.P.’s father, to establish whether the “family could possibly get back together again,”

but trial counsel never asked him whether probation for Appellant would be in A.P.’s

best interest. (3 R.R. at 14-15). Trial counsel testified that he believed that there was

testimony before the court which could have led the court to find that a deferred

adjudication for Appellant was in A.P.’s best interest. (3 R.R. at 19-20).

      Trial counsel testified that the attorney for the State informed him that the family

did not want Appellant to be on probation; instead, A.P.’s family wanted Appellant

“thrown under the jail.” (3 R.R. at 16).

                                            8
Nicole Hunter

      Appellant’s wife testified at the motion for new trial hearing. (3 R.R. at 24).

She testified that she was present during conversations between Appellant and his

attorney. (3 R.R. at 24). Nicole testified that the agreed goal for Appellant’s case was

for Appellant to get probation. (3 R.R. at 25). Trial counsel told Appellant that “he

thought it would be best for Lamar to pled [sic] guilty and go in front of the Judge and

have the -- the Judge would have mercy on him.” (3 R.R. at 25).

      Nicole testified that there was never any mention in their conversations of the

necessary factual findings. (3 R.R. at 25).

Appellant

      Appellant testified that he probably met with his trial counsel over a dozen

times. (3 R.R. at 30). He testified that trial counsel advised him that a jury trial would

not be in his best interest. (3 R.R. at 30). Appellant understood that probation was an

option, but also understood that he could be punished for up to life in prison and fined

up to $10,000. (3 R.R. at 31).

      Appellant and trial counsel discussed the difference between deferred

adjudication and regular community supervision. (3 R.R. at 32). Appellant understood

the result of successfully completing deferred adjudication. (3 R.R. at 32).

      Trial counsel never advised Appellant that the trial could not order Appellant to

deferred adjudication unless the trial court made a finding that doing so was in the best

interest of the victim. (3 R.R. at 33, 35). Appellant knew that A.P. wanted him to be in

                                              9
prison. (3 R.R. at 34). He knew that A.P.’s family was opposed to him getting

probation. (3 R.R. at 34-35).

      Appellant testified that had he known that the trial court had to find that deferred

adjudication was in A.P.’s best interest, Appellant would not have pled guilty. (3 R.R.

at 36). Instead, he would have “put it in the hands of the jury.” (3 R.R. at 33).

                     APPELLANT’S FIRST POINT OF ERROR

      The trial court’s certificate of defendant’s right to appeal erroneously limits

Appellant’s appeal in this matter to error in the punishment hearing. Appellee agrees

that the trial court’s certificate improperly limits Appellant’s right to appeal.

Standard of Review and Applicable Law

     A defendant appealing a judgment from a criminal cause may only have his right

to appeal limited in plea bargain cases. Tex. R.App. P. 25.2(a)(2); Tex. Code Crim.

Proc. Ann. Art. 44.02 (West Supp. 2013).

Relevant Facts

     The trial court’s certificate of defendant’s right of appeal limits his right of appeal

to “punishment only”. (C.R. at 41). There was no consideration given for Appellant’s

plea of guilty. The court’s admonishment’s to the Appellant show that he plead with

no agreement as to punishment or a limiting of the penalty range. (C.R. at 25-26).

The parties to this appeal filed an agreed motion to abate this appeal to correct the trial

court’s certificate of defendant’s right to appeal. See Agreed Motion to Abate Appeal,

filed with this Court on April 3, 2015 and attached as Appendix A

                                             10
Analysis

      The trial court’s Certificate of Defendant’s Right to Appeal was defective as it

erroneously limited Appellant’s right to appeal issues arising only from the

punishment hearing. A defendant appealing a judgment from a criminal cause may

only have his right to appeal limited in plea bargain cases. Tex. R.App. P. 25.2(a)(2);

Tex. Code Crim. Proc. Ann. Art. 44.02 (West Supp. 2013).

      The trial court amended the certificate of defendant’s right to appeal by adding

the language “punishment only,” after certifying that this matter “is not a plea-bargain

case”. (C.R. at 41). Appellant’s plea was not bargained for and no consideration was

given on the part of the State in exchange for Appellant’s plea. His plea was an open

plea to the court. (C.R. at 25-26).   The State of Texas, Appellee, agrees that the

Certificate of Defendant’s Right to Appeal erroneously limited Appellant’s right to

appeal to punishment only. In order to attempt to correct the trial court’s error, the

Appellant and Appellee filed an agreed motion to abate this appeal to the trial court

based on the defective certificate. See Agreed Motion to Abate Appeal filed with this

Court on April 3, 2015.

      Appellant prays that this Court find that the trial court erred by limiting

Appellant’s right to appeal to punishment only, and consider Appellant’s arguments in

the following points of error as to both the plea and punishment proceedings.




                                          11
                    APPELLANT’S SECOND POINT OF ERROR

      The trial court abused its discretion by denying Appellant’s motion for new trial

on the basis of ineffective assistance of counsel. Viewing the evidence in a light most

favorable to the trial court’s ruling, there is no reasonable view of the record to

support the finding that trial counsel did not render ineffective assistance of counsel

sufficient to undermine confidence in the outcome of the proceedings. Trial counsel

was ignorant of a point of law fundamental to Appellant’s case that resulted in his

failure to adequately advise Appellant.         On account of trial counsel’s errors,

Appellant’s plea was entered neither knowingly nor voluntarily.

Standard of Review and Applicable Law

      A trial court’s denial of a motion for new trial is reviewed for an abuse of

discretion. Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). An abuse

of discretion may be found where no reasonable view of the record could support [the

trial court’s] ruling.” Id. The reviewing court reviews the evidence in a light most

favorable to the court’s ruling. Id.

      The Sixth Amendment to the United States Constitution and Article I, Section

10 of the Texas Constitution provide that an accused in a criminal trial has the right to

counsel. U.S. CONST. AMEND. VI; TEX. CONST. ART. I, § 10. The right to counsel

includes the right to effective counsel. Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2D 674 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.

Crim. App. 1986).

                                           12
      Claims of ineffective assistance of counsel are reviewed under the Strickland v.

Washington standard. Strickland, 466 U.S. 668. To be successful on a claim of

ineffective assistance of counsel, an appellant must prove that “trial counsel's

representation was deficient and that the deficient performance was so serious that it

deprived appellant of a fair trial.” Wert v. State, 383 S.W. 3d. 747, 752 (Tex. App. –

Houston -14th Dist.] 2012, no pet.), citing Strickland, 466 U.S. at 687.

      First, an appellant must show “that counsel's performance fell below an

objective standard of reasonableness.” Id. at 752, citing Strickland, 466 U.S. at 688.

A criminal defense attorney has a duty to understand the law applicable to his client’s

case. Trial counsel’s “ignorance of a point of law that is fundamental to his case

combined with his failure to perform basic research on that point is a quintessential

example of unreasonable performance under Strickland.” Hinton v. Alabama, 134 S.

Ct. 1081, 1089, 188 L. Ed. 2d 1, 9 (U.S. 2014).

      A point of law fundamental to Appellant’s case is that a judge may place a

defendant who has pled guilty or nolo contendere to the offense of Aggravated Sexual

Assault of a Child on deferred adjudication only if the trial court finds that it is in “the

best interest of the victim” for the defendant to be on deferred adjudication community

supervision. Tex. Code Crim. Proc. Ann. Art. 42.12 § 5(a) (Vernon Supp. 2003).

      Second, an appellant must show “a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.” Wert,

383 S.W.3d at 752, citing Strickland, 466 U.S. at 694. A “reasonable probability”

                                            13
under Strickland is a probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694.

      A defendant’s election to plead guilty “when based upon erroneous advice of

counsel is not done voluntarily and knowingly.” Ex parte Battle, 817 S.W.2d 81, 83

(Tex. Crim. App. 1991). In the context of determining whether a defendant’s waiver

of his numerous constitutionally protected rights and entry of a guilty plea is

involuntary, the second prong of Strickland is met where “there is a reasonable

probability that, but for counsel's errors, he would not have pleaded guilty and would

have insisted on going to trial." Ex parte Moody, 991 S.W.2d 856, 857-858 (Tex. Crim.

App. 1999).

      The Court of Criminal Appeals has found that “because a guilty plea is an

admission of all the elements of a formal criminal charge, it cannot be truly voluntary

unless the defendant possesses an understanding of the law in relation to the facts." Ex

parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014). The court found that this

requires the accused to have “sufficient awareness of the relevant circumstances.” Id.

The court stated that the standard is “whether the plea is a voluntary and intelligent

choice among the alternative courses of action open to the defendant.” Id.

Analysis

      The trial court abused its discretion by denying Appellant’s motion for new trial.

The performance of Appellant’s trial counsel fell below an objective standard of

reasonableness where trial counsel did not fully understand that law applicable to

                                          14
Appellant’s case. On account of his ignorance of the applicable law, trial counsel gave

Appellant specific advice to plead guilty and seek deferred adjudication from the trial

court. The record is clear that trial counsel was ignorant of “the best interest of the

victim” factual finding required for the trial court to impose a deferred adjudication

order in Appellant’s case. (3 R.R. at 22). The record is clear that on account of trial

counsel’s ignorance of the law applicable to Appellant’s case, he advised Appellant to

plead guilty and proceed to the trial court on punishment. (3 R.R. at 9, 21). Relying

on his counsel’s professional advice, Appellant entered a plea of guilty, and elected to

have the trial judge assess punishment. Had Appellant known of the best interest of

the victim finding required of the trial court, he would have demanded a jury trial

instead of entering a plea of guilty and electing for the court to assess punishment. (3

R.R. at 33, 35-36).

Trial counsel’s ignorance of the law applicable to Appellant’s case was unreasonable

performance for defense counsel; his deficient performance was compounded by

advising Appellant to plead guilty and seek deferred adjudication from the trial court

      Trial counsel’s performance fell below an objective standard of reasonableness

where, during the course of his representation of Appellant, trial counsel was unaware

of a point of law that was fundamental to Appellant’s case: the requirement that the

trial court make a finding regarding the best interest of the victim. (3 R.R. at 22).

Trial counsel’s “ignorance of a point of law that is fundamental to his case combined

with his failure to perform basic research on that point is a quintessential example of

                                          15
unreasonable performance under Strickland.” Hinton, 134 S. Ct. at 1089.               The

principles applicable to punishment are fundamental to the defense of a criminal

charge. For example, counsel is deficient for failure to understand punishment range,

United States v. Grammas, 376 F.3d 433, 436 (5th Cir. Tex. 2004); probation

eligibility, Battle, 817 S.W.2d at 83; deferred adjudication eligibility, Anthony v. State,

No. 07-13-00890-CR, at *5, 2015 Tex. App. LEXIS 1484 (Tex. App. – Amarillo,

February 12, 2015) (mem. op., not designated for publication).; and parole eligibility,

Ex parte Moussazadeh, 361 S.W.3d 684, 691-92 (Tex. Crim. App. 2012).

      Trial counsel admitted that, until he was contacted by new trial counsel, he did

not know that for the trial court to order the Appellant to deferred adjudication that the

court was required to make a finding that doing so was in the best interest of the

victim. (3 R.R. at 22).

      Furthermore, it is evident from a review of the record from the punishment

hearing that trial counsel did not know about the required best interest of the victim

finding. Trial counsel did not present any evidence at trial or make any argument to

support the premise that deferred adjudication for Appellant would be in A.P’s best

interest. He did not ask one question on cross-examination or direct-examination

regarding A.P.’s best interest, nor did he once argue the point in his closing.

      The State may argue that trial counsel testified that he did present evidence that

deferred would be in A.P.’s best interest by way of the testimony of A.P.’s father. Trial

counsel testified that he called Geoffrey Hunter, A.P.’s father, to establish “if this

                                            16
family could possibly get back together again.” (3 R.R. at 14-15). Mr. Geoffrey

Hunter did not testify that Appellant being granted deferred adjudication or being

released on probation would be in A.P.’s best interest. He did not testify that the

family staying together would be in A.P.’s best interest. He testified that he had

forgiven Appellant. (2 R.R. at 65). He testified that “a punishment to the highest

degree” would “make everything much worse between both families.” (2 R.R. at 67).

He testified that he did not want to see Appellant away from his family. (2 R.R. at 67).

Nowhere in his testimony did he mention how Appellant being released on probation

would be in A.P.’s interest.

      Trial counsel’s closing argument focused on Appellant’s interests. (2 R.R. at 88-

90). The only mention of A.P. was counsel’s opinion that she had, contrary to the

evidence presented by the State, “gone on with her life.” (2 R.R. at 89).

      Trial counsel’s ignorance of the law applicable to Appellant’s case resulted in

trial counsel understating the dangers of electing to have the trial court assess

punishment on a guilty plea. “By grossly underestimating” the dangers of pursuing a

course of action, an attorney “breaches his duty as a defense lawyer in a criminal case

to advise his client fully on whether a particular plea to a charge appears desirable.”

Grammas, 376 F.3d at 437. In light of the desires of the victim and her family,

counsel’s advice to Appellant that the best course of action for his case was to plead

guilty and request deferred adjudication from the court grossly underestimated the risk

Appellant faced by entering a plea of guilty. (3 R.R. at 9, 31). He advised Appellant

                                           17
that a jury trial would not be in his best interest. (3 R.R. at 33). This deficiency was

further aggravated by counsel’s advice that Appellant was “a good candidate for…

deferred.” (3 R.R. at 21).

      The evidence in the record does not support trial counsel’s contention that

Appellant would be a “good candidate” for deferred adjudication under the law

applicable to this case. Trial counsel knew that A.P. and her family wanted Appellant

to go to prison; they wanted him “thrown under the jail.” (3 R.R. at 16). A.P. was

scared of Appellant. (2 R.R. at 36-37, 51-52). Since A.P.’s outcry, their family has

been hewn apart. (2 R.R. at 37). There is no interpretation of these facts, which were,

or reasonably should have been, within defense counsel’s knowledge, that equate

Appellant being on deferred adjudication to the best interest of the victim.

      Counsel’s advice that Appellant plead guilty and seek community supervision

from the trial court because he was a “good candidate” for deferred adjudication was

deficient performance below any objective standard of performance for criminal

defense counsel.

      The record is clear that trial counsel was ignorant of the best interest of the

victim factual finding in Article 42.12. He did not adduce evidence to support the

finding and did not argue that the trial court should make the finding.           Most

importantly, he admitted at the motion for new trial hearing that he did not learn about

the requirement for the factual finding until after Appellant’s punishment hearing was

over. (3 R.R. at 22). Appellant demonstrated at the motion for new trial that trial

                                           18
counsel’s performance was deficient and “fell below an objective standard of

reasonableness.” Wert, 383 S.W.3d at 752.

There is a reasonable probability, sufficient to undermine confidence in the outcome of

the case, that but for counsel’s errors, the outcome of the proceedings against

Appellant would have been different.

      The deficiencies in the representation and professional advice provided to

Appellant by trial counsel resulted in sufficient harm to the Appellant to undermine

confidence in the outcome of this case. The “proper functioning of our adjudicatory

process and public confidence in the integrity of such proceedings” are undermined

where a person’s “relinquishment of important legal rights” are made following the

unsound advice of their legal counsel. Anthony, No. 07-13-00890-CR, at *8. A

criminal defendant, in “his attempt to understand the law and make an intelligent

choice as to whether to plead guilty and forego a jury trial… should [be] able to

confidently rely on the advice of his legal counsel.” Id. at *7.

      In the present matter, on account of Appellant’s trial counsel’s ignorance of the

law, Appellant was deprived of the information he needed to be capable of knowingly

and voluntarily waiving his right to a jury trial and entering a guilty plea.       As

Appellant’s plea was based on trial counsel’s erroneous advice, his plea was not made

knowingly and voluntarily. Had Appellant known that the trial court was required find

that it was in the best interest of the victim for him be ordered to community

supervision, he would not have proceeded as he did. He would not have pled guilty

                                            19
and would have proceeded to a jury trial. (3. R.R. at 33, 36).

      Appellant testified that had he fully understood the law applicable to his case he

would not have pled guilty to pursue deferred adjudication from the trial court. (3

R.R. at 35-36). Appellant testified that had he known that the trial court had to make a

specific finding that it was in the best interest of the victim for him to be ordered to

community supervision, he would not have waived his right to a jury trial and would

not have pled guilty. (3 R.R. at 33,36). He said that knowing of the factual finding

requirement was significant to him, because “if that was the case, knowing that I

wouldn’t – if they wouldn’t – if I wasn’t going to get probation, I would have put it in

the hands of the jury.” (3 R.R. at 33). Appellant testified that had known the law

applicable to his case, he would have taken a chance with the jury to try to get

probation from the jury: “Because of the fact that going a route where I didn't know I

have any chances for probation would have changed my mind so I could take the

chances to have probation so I could be with my family.” (3 R.R. at 33).

      While he did not explicitly state so on the record, it can be inferred from his

testimony that Appellant knew that the trial court would be unlikely to find that it was

in A.P.’s best interest for him to be given deferred adjudication community

supervision. Trial counsel and Appellant knew that A.P., the alleged victim, and her

family did not want Appellant to be sentenced to any type of community supervision.

(3 R.R. at 16, 34). In fact, trial counsel knew that A.P.’s family was “extremely

opposed” to probation and wanted Appellant “thrown under the jail.” (3 R.R. at 16).

                                           20
Furthermore, since A.P.’s family learned of her outcry, her family has been torn apart.

(2 R.R. at 36-37). A.P.’s parents separated because of her father’s decision not to

support A.P. (2 R.R. at 51). A.P. is also scared to go outside and is afraid of

Appellant. (2 R.R. at 40, 51-52). Appellant provided no financial assistance and no

other economic support to A.P. (3 R.R. at 34). He knew that A.P. and her family

wanted him in prison and had rejected the idea that he be sentenced to probation. (3

R.R. at 34-35).

      Had Appellant known of the requisite best interest of the child finding, he would

have “put it in the hands of the jury.” (3 R.R. at 33). Had the Appellant taken the case

to a jury trial, he would have had the opportunity to exercise his right to present a

defense, silence, confrontation and cross-examination of witnesses, the presumption of

innocence, and the right to have a jury of his peers determine whether the State had

proven their case beyond a reasonable doubt. U.S. CONST. AMEND. V, VI, XIV; TEX.

CONST. ART. I, § 10. Furthermore, under the law applicable to the case, if a jury had

convicted Appellant, the jury could have recommended to the trial court that the

Appellant be sentenced to a term of community supervision. Tex. Code Crim. Proc.

Ann 42.12 § 4 (Vernon Supp. 2003).1 (2 R.R. at 5-6).          Appellant filed a sworn

application for probation stating that he had never before been convicted of a felony,

1
 The law applicable to probation eligibility is “a substantive rather than a procedural
matter” determined based on the date of the alleged offense. Lewis v. State, No. 05-
94-01137-CR at *37, 1996 Tex. App. LEXIS 463 (Tex. App. -- Dallas Jan. 17, 1996,
pet. ref’d) (mem. op., not designated for publication).; Hornell v. State, No. 14-98-
01082-CR at *2, 2000 Tex. App. LEXIS 4771 (Tex. App. Houston [14th Dist.] July 20,
2000, pet. ref’d) (mem. op., not designated for publication).
                                          21
so he would have been eligible, if convicted, for jury recommended community

supervision. (C.R. at 32).

      In other words, Appellant was prejudiced because he did not know about an

important consideration required of the trial court to grant him deferred adjudication

community supervision.       Furthermore, contrary to the facts of the case within

counsel’s knowledge, Appellant’s trial counsel told him he would be a “good

candidate” for deferred adjudication. Any reasonable criminal defense counsel would

have informed the Appellant of the existence of the best interest of the victim finding

and would have discussed how the facts of Appellant’s case would apply to that

consideration. Knowing the feelings of the victim and her family regarding Appellant

being released on probation, and knowing the stressed state of their mutual family, it

can be reasonably inferred that had Appellant been appropriately advised, he would

have concluded that the trial judge would not find that it was in the “best interest of

the victim” for him to be given probation. This inference is supported by Appellant’s

testimony that had he known about the required finding he would have elected a jury

trial over the course of action recommended by his attorney. At the very least, had

Appellant known about the required best interest of the victim finding, he could have

had a frank discussion with his attorney regarding counsel’s opinion of the likelihood

of Appellant being granted deferred adjudication. On account of counsel’s deficient

performance, Appellant was deprived of the opportunity to meaningful consider the

risks inherent in his guilty plea. Appellant’s decision to forgo a jury trial and pursue

                                          22
deferred adjudication from the trial court was not “a voluntary and intelligent choice

among the alternative courses of action open to the defendant.” Mable, 443 S.W.3d at

131.

       The Fifth Circuit has found that where a “defendant lacks a full understanding

of the risks of going to trial, he is unable to make an intelligent choice of whether to

accept a plea or take his chances in court.” Grammas, 376 F.3d at 436. In this present

matter, Appellant lacked “a full understanding of the risks” of entering his guilty plea

and electing for the trial court to assess punishment. His lack of “a full understanding”

of law pertaining to the factual finding required of the trial court in order to obtain his

objective of community supervision resulted in Appellant’s plea and waiver of rights

being made without the constitutionally required volition and knowledge.

       In the context of a guilty plea, the second prong of Strickland is met where, but

for counsel’s errors, the defendant would have chose not to plead guilty and would

have instead chose to go to trial. Moussazadeh, 361 S.W.3d at 691. At the motion for

new trial, Appellant demonstrated that but for his trial counsel’s errors, he would have

chose to go to trial instead of entering a guilty plea. In his words, he would have “put

it in the hands of the jury.” (3 R.R. at 33). The confidence in the outcome of the

proceedings against Appellant was undermined where Appellant’s plea of guilty and

waiver of rights was based on trial counsel’s deficient performance.

             Viewing the evidence presented in a light most favorable to the trial

court’s decision, this Court should find that the trial court abused its discretion by

                                            23
finding that Appellant was not prejudiced by trial counsel’s errors. A trial court abuses

its discretion where “no reasonable view of the record could support [the trial court’s]

ruling.” Okonkwo, 398 S.W.3d at 694. Trial counsel’s performance was unreasonably

deficient. The evidence presented at the motion for new trial clearly shows that had

Appellant known the law applicable to his case, he would not have pled guilty and

would have proceeded to a jury trial. On account of trial counsel’s error’s Appellant’s

plea was not entered knowingly and voluntarily. This court should find that there is no

reasonable view of the record that supports the trial court’s denial of Appellant’s

motion for new trial.

                         CONCLUSION AND PRAYER

      There is no reasonable view of the record that supports the trial court’s decision

to deny Appellant’s motion for new trial. The trial court abused its discretion by

finding that trial counsel did not provide deficient representation to Appellant and that

Appellant was not prejudiced by the deficient representation. Furthermore, the trial

court abused its discretion by finding that Appellant knowingly and voluntarily

entered his guilty plea and waiver of his constitutional rights.

      Wherefore, Appellant prays that this Court find that the trial court abused its

discretion in denying Appellant’s motion for new trial. Appellant prays that this trial

court overturn Appellant’s conviction and return Appellant to his position prior to

entering his guilty plea.    Appellant prays for any and all other relief to which

Appellant may be entitled and that this Court may find is just and right.

                                            24
Respectfully submitted,

/s/ Joseph Kyle Verret
Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
Counsel for Appellant
TBN: 240429432 47
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071
Email: kyle@verretlaw.com

                            CERTIFICATE OF SERVICE

      I do hereby certify that a true and correct copy of this Appellant’s Brief has been

served on counsel for the Appellee, Rebecca Klaren, Assistant Criminal District

Attorney of Galveston County, Texas by service through electronic filing on this 13th

day of March, 2015.

/s/Joseph Kyle Verret
Joseph Kyle Verret
TBN: 2402932

                          CERTIFICATE OF WORD COUNT

      I do hereby certify that the total word count for this document is 6,342

excluding those parts specifically excluded in Texas Rule of Appellate Procedure

9.4(i)(1) which is less than 15,000 words allowed per Texas Rule of Appellate

Procedure 9.4.


/s/Joseph Kyle Verret
Joseph Kyle Verret
TBN: 2402932

                                           25
APPENDIX




   26
APPENDIX A




    27
                                                                                    ACCEPTED
                                                                               01-14-00895-CR
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           2/3/2015 6:17:02 PM
                                                                          CHRISTOPHER PRINE
                                                                                        CLERK

                             No. 01-14-00895-CR

                     In the First Court of Appeals,            FILED IN
                                                        1st COURT OF APPEALS
                            Houston, Texas                  HOUSTON, TEXAS
                                                        2/3/2015 6:17:02 PM
                                                        CHRISTOPHER A. PRINE
                                                                Clerk




                    LAMAR MARCELL HUNTER
                           Appellant

                                     v.

                       THE STATE OF TEXAS
                             Appellee




        Appellant’s Agreed Motion to Abate Appeal to Correct

       Trial Court’s Certification of Defendant’s Right to Appeal



Respectfully Submitted by:

Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
Counsel for Appellant
TBN: 240429432
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071                   Submitted:
Email: kyle@verretlaw.com           February 3, 2015
                            No. 01-14-00895-CR

                       In the First Court of Appeals,
                              Houston, Texas

                      LAMAR MARCELL HUNTER
                             Appellant

                                       v.

                         THE STATE OF TEXAS
                               Appellee

         Appellant’s Agreed Motion to Abate Appeal to Correct

       Trial Court’s Certification of Defendant’s Right to Appeal

Comes now, Appellant, by and through his undersigned counsel, in the

above styled cause and moves this Honorable Court to abate this appeal to

the trial court so that the defective trial court’s certification of defendant’s

right to appeal may be corrected. In support of this motion, Appellant would

show the following:

   1. The trial court in this cause prepared a certification of defendant’s

      right to appeal, which is included in the clerk’s record on appeal in

      this cause at page 41 and is appended to this motion.

   2. The trial court erroneously certified that Appellant’s right to appeal

      was limited to punishment only.

   3. The Appellant entered a plea of guilty in this matter and waived his

      right to a trial by jury without any consideration in exchange from the
      State for his waiver. See Clerk’s Record page 25-26.

   4. The record is devoid of any evidence that Appellant may have waived

      his right to appeal in exchange for some consideration from the State.

      Furthermore, the State agrees there was no bargain in exchange for the

      Appellant’s guilty plea.

   5. An appellant from a criminal cause may only have his right to appeal

      limited in plea bargain cases, or in limited other circumstances, which

      do not apply to this matter. TEX. R. APP. PROC. 25.2(a)(2).

   6. The proper remedy for a defective certification of right to appeal is

      abatement to the trial court for correction of the certification by the

      court and signature by the Appellant. Harris v. State, 137 S.W.3d 829

      (Tex. App. Waco 2004); Menjivar v. State, 2008 Tex. App. LEXIS

      437 (Tex. App. -- Houston [1st Dist.] Jan. 17, 2008); TEX. R. APP.

      PROC. 25.2(d).

                         PRAYER FOR RELIEF

      For the reasons set forth above, Appellant requests that this Court

grant this Agreed Motion to Abate Appeal to Correct Trial Court’s

Certification of Defendant’s Right to Appeal and abate this appeal to the

trial court to correct the defect in the certification of defendant’s right to

appeal and secure the signature of the Appellant / Defendant.
Respectfully submitted,

/s/ Joseph Kyle Verret
Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
Counsel for Appellant
TBN: 240429432
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone / Fax: 281-764-7071
Email: kyle@verretlaw.com
                           Certificate of Service

     I certify that a true and correct copy of the foregoing Appellant’s

Agreed Motion to Abate Appeal to Correct Trial Court’s Certification of

Defendant’s Right to Appeal was served on this 3rd day of February, 2015

on the Counsel for the Appellee, Rebecca Klaren, at the Galveston County

Criminal District Attorney’s Office by e-service through electronic filing.


/s/ Joseph Kyle Verret
Joseph Kyle Verret
TBN: 2402932

                         Certificate of Conference

      I certify that I have conferred with the attorney for the State on this

appeal, Rebecca Klaren, Assistant District Attorney of Galveston County. I

further certify that the State of Texas, the Appellee, AGREES with this

motion.


/s/ Joseph Kyle Verret
Joseph Kyle Verret
TBN: 2402932
Appendix
                                                  Electronically Filed
                                                            CAUSE NO.12CR1921

THE HATE OF TEXA£                                                                                          il'! THE DISTRICT COURT OF

           vs.                                                                                             GALVESTON COUNTY, TEXAS
                                                                        28 PM 3: 56
LAMAR MARCELL HUNTER                                            §                                          10TH JUDICIAL DISTRICT

                       TRIAL COURT'S CERTIFI                                      E                        's RIGHT OF APPEAL
I, Judge of the trial court, certil'y this criminal cast!! t, \ < ,',   ' ., :'   '! 'r.   T,   f, .', ,


             not a plea-bargain case, and the defendant has the right of appeab-ferl                       pu-ntshrn eto.::J.             OP t';j
[ ]       1S a plea-bargam case, but matters were raised by wntten mohon hied and ruled on before tnal and not
          wi!hdrawn or waived, and the defendant has the nght of appeal. [or)

[ ]       is a plea-bargain case, but the trial court has given pennission to appeal, and the defendant has the right
           of appeal. [or]

[1        is • pl •• bargain Gase, and the defeRdaHt has WO right ef appeal. [er]




                                                                           Date Signed

I have received a copy of this Certification, I have also been informed of my rights concerning any appeal of this
criminal case, including any right to me a pro se petition for discretionary review pursuant to Rule 68 of the Texas
RnIes of Appellate Procedure, I have been admonished that my attorney must mail a copy of the court of appeal's
judgment and opinion to my last known address and that I have only thirty (30) days in which to fIle a pro se petition
rot diSCI tlibaslY ] e\'itn in the COOl t of climinal appeals. TEX. R. APP,P. 68.1. I acknowledge that, if I wish to appeal
this case and ifI anI entitled to do so, it is,.., dnty to inwlDl nly appellate atlOlne" by 'lIitlen comnlDnication, ofany
change in the address at which I am currently living or any change in my current prison unit. I understand that,
because of appellate deadlines, if I fail to timely inform my appellate attorney of any change in my address, I may lose
the opportunity to me a pro se petition for discretionary review,



              •• 4           tiJ-                                          Deant                    0       e                           0
                                                                           State Bar No.             ()/f J:p                       D

Mallmg Addiess:

  Dr          I , &. /AAl¥qlA
                             '1/7 ']6kp\
                                          I f 17'5&€,                      H:;;:o:                                                                            3R.
Telephone Number:                 35 L/ -,'3 I                             TelephoneNumbe;(a                            d;?7,
F,,"x Wumbor (ifan)'): (      )                                            Fax !'>lumber                                ,,;2




                                                                                                                12- CR -1Q21
                                                                                                                DelRe
                                                                                                                Trial          CeFtiliGalioA and [lefen8slll's Righ
                                                                                                                Q14543

Effective October 18, 2011

                                                                                                                I111 "'"'"'"11111" I111111111111 " III41
            -                                                        Electronically Filed
                                                  WRIIIEN          EA                                                     AIIQNS
                                                          OFFENSES COMMllTED ON OR AFTER 09f()111997
                                                                10TH JUDICIAL DISTRICT COURT
                                                                  GALVESTON COUNTY, TEXAS
                                                                                                                                                     I,!t.
                                                                                                                                                           r..tl? ,
No.12CR1921                                                                                                                           Date: :J3,2014                  S 4-
      LAMAR HUNTER, Defendant
                                                                                                                                                                              )ye;.
To:
                                                                                                                                                              'ts \                   -
Punuant to Art. 26.13 c.c.P., you are hereby admonished by the Court in writing as follows:
                                                                                                                                                             ..                       I
1.         You are charged with the felony offense of:
           AGGRAVATED SEXUAL ASSAULT OF A CHILD                                                                                                                         l'r.ro'lo
           If convicted, you face the following range of punishment:                                                                                                            "
           FIRST DEGREE FELONY: A tenn of life or anytenn of not more than 99 years or less than 5 years in the Institutional Division of the Texas Department
           01 CnmlOa[ Justice ano 10 addition, a posslEile hne not to exceed $IO,uuu.OO
( )        SECOND DEGREE FELONY. A tclm oeMl illtlle than 29 )e"ats (')1 less than 2 yealS iii the lrutiMienai Di.hien 6ftheTexas DeJ:l8rtment efCfiminal
           Justice and in addition, a possible fine not to exceed $10,000.00
( )        THIRD DEGREE FELONY: A tenn of not more than 10 years or less than 2 years in the Institutional Division of the Texas Department of Criminal
           Justice; and in addition, a possible fine not to exceed $ 10,000.00. Range of punishment increased to 25- life with two (2) enhancements.
( )        STATE JAIL FELONY: A tenn of not more than 2 years or less than 180 days in a state jail and in addition, a possible fine not to exceed $ 10,000.00.
( )

3.         PLEA BARGAINS: If no plea 6argam exiSts, die recommenuatlOn 01 tlie prosecutmg attorney IS not 6100mg on ille Court. II a plea 6argam (loes exist, tne
           Court will illfUilil jva .. llcthCl it .. ill follow the agreement ill open eourt and befOle all) finding on )6tlI plea. Should the e6tut rejeet the agreement )f.ltt
           will be entitled to withdraw your plea.
4.         PERMISSION TO APPEAL: Where your plea of gUilty or nolo contendere (no contest) is voluntarily and understandingly entered with a plea bargain
           agreement and the punishment assessed does not exceed the agreement between you and the prosecutor, the court must give pennission before you can
           appeal on any matter in the case except for those matters raised by written motion tiled and ruled on prior to trial. Where your plea of guilty or nolo
           contendere is voluntarUy and understandingly entered without a plea bargain agreement., the plea waives or forfeits the right to appeal a claim of
           error pertaining to guilt only when the judgment of guilt was rendered independent of, and is not supported by, the error.
5.         CITIZENSHIP: If you are not a United States CitIzen, a plea of guilty or nolo contenuere may result In ueportatlOn, exclUSIOn from aumlsslon to me
           COUlillj, 01 denial ofnatwalization under fcdcldlla ...
6.         DEFERRED ADJUDICATION: If the Court deters adjudicating your guilt and places you on community supervision, a violation of any condition of
           community supervision may result in proceedings being initiated whereby you are arrested and detained, as provided by law, for a hearing by the Court
           limited to a determination of whether to proceed with an adjudication of guilt on the original charge. No appeal may be taken from this detennination. After
           adjudication of guilt, all proceedings including pronouncement of sentence, granting of community supervision and your right to appeal continue as if
           adiudication of i!Uilt had not been deferred, In addition, after adjudication of guilt the pwtislunent assessed may be any tenn within the range for the offense
           and is not limited to the tenn of community
7.         SEX OFFENDER REGISTRATION PROGRAM: If convicted of or placed of deferred adjudication tor an offense for which you arc subject to registration
           under the Sex Offender Registration Program (Chapter 62 Texas Code of Criminal Procedure), you will bc required to meet those registration requirements.


Comes now the Defendant,joined by my counsel, and states that I understand the foregoing admonishments from the Court and am aware ofthe consequences of
my plea. I further slate that I am mentally competent, that my plea is freely and voluntarily made. If counsel is apIX>inted, I waive any time provided me by law
to prepare Jor tnal unaer Art. 1,05 I C.C.P. I am totally sahsbe<l wlUl Uie representatIOn provlded by my attorney wllo provided fully effective lInd competent
representation. Under Art. i .14 c.c.I'. I give up allliglits given to tIle by law, whct\!el of fUllt!, substance 01 plOcedwe, including anj time limitations imposed unda
the U.S. Constitution or Chapter 32 c.c.P. Joined by my attorney, I give up aU right to a jury in this case under Art 1.13 c.c.p., and I give up my right to
appearance, confrontation and cross examination of witnesses as to guilt under Art. 1.15 C.c.P., and" t p aisliIlicut. I consent to oral and written
stipulations of evidence in this case. I have read and my attorney has explained to me the indictment or infonnation filed against me in this cause. I voluntarily
waive reading of the indictment or infonnation ( and acknowledge timely service of a copy of same) and voluntarily waive the arraignment period pursuant to Art.
2603CCF I also                   the right 1:0 be acclIsed b)' indictment            proceeding b:t infonnation QUrsuant to Art. 1.141 C.C.P. I also give UQ my right to
contidentialit)': pll[SmlRt t,!} Art. 42.l2(9)(j} C.C.P. if a pre-sentence              is filed. I freely and voluntarily waive my right to have a court reporter make a record ofthe
court proceedings in my case. I also waive and give up the 30 days provided in which to file a Motion for New Trial, Motion for Arrest of Judgment and Notice of
Appeal. I completely understand all of the written waivers, stipulations and motions herein stated in connection with the plea, and each was done freely,
voluntarily, and intelligently.                   OiiIAIiII tmllly 1et!I"IIIDllend to the EoaH den                ill          "'1:: !I!!!!e!l!lm lit.


                                                                                            txw\!
                                                                                                                                     12-CR-1921
                                                                                                                                     DCADWS
                                                                                                                                     Admonishment - Waiver - Stipulation to Evic
                                                                                                                                     813469
                                                                                                                                    111111                        I I IIII
                                                                                                                                     I1I1                              1I1I
                                                                                                                                            I   I I I
                                                                                                                                                                       25
                                                                           Electronically Filed
( )8001 CAMP                  ( ) l ears In the mstltuuonal DIVISion of I DCJ wuh the recommendatIon 01 State Boot Camp. provIded, however. mat should me
Defendant be declauxl ineligible COl sam prugIam 01 failro successfully cOlllplete said plOgJaIll, [01 ally leason, die Defendant shall seive said penilentiafy seiilence
pursuant to law.




                                                                               Defendant


                        : unuerswnumg anu agreemg LO all 01 lIIe auove, IlreelY anu vOlunLarilY p eau 'LJUILI                 J   anu eOIlless my   UUILI lO   naving COnurullOO eacn ana
every element of the offense alleged in the indictment or information by which I have been charged in this cause and I agree and stipulate that the facts contained in the
indictment or infonnation are true and correct and constitute the evidence in this case. Where the State is proceeding on a lesser included offense arising out of said
indictment or infonnatioll; I plead GUILTY and confess my GUILT to having committed each and every element of the lesser included offense only.
( ) I plead true to the enhancements plead in this cause and not abandoned by the State.


                                                                                                               ;u:.            7

( ) NOLO CONTENDERE PLEA: Understanding and agreeing to all of the above, I freely and voluntarily plead NOLO CONTENDERE (NO CONTESn to the
indictment or infonnation by which I have been charged in this cause and agree and stipulate that the elements ofthe offense and the facts alleged therein constitute the
          in this case Where the State is pro"eeding on " lesser incl.,ded OffenSe arising ont of said indictment or ;nfnonation I plead NOI 0 CONTENDERE (NO
CONTFST) to the elements orthe lesser in!'h,ded offense and agree and stipulate that the elements Qfthe lesser included offense and the facts of said offense as alleged
constimte the evidence in this case. ( ) I plead true to the enhancements plead in this cause and not abandoned by the State.



                                                                               Defendant

Sworn kt and subsccibed kt before me by the Defendant on this date

JOHN D. KINARD, DISTRICT CLERK
GALATON COUNTY, TEXAS



             Deputy

We jeiR in fmc! IIfIJ'lft'J. e the J'liea agreement, all wai'/efS afId stipuiatiflR5        abg'   @:   by this Ddmdant including the Defmdant's waiver of          by JUT), We also agree
that the Defendant is legally competent to stand trial. We also agree that all statements of the Defendant were freely and voluntarily made and that the Defendant's plea
was freely and voiuntanly entered and he understands the Court's Admomtlons given to him                                    with Art 2613 C C P. and that he is aware ofthe
consequences of his plea The Court duly arraIgned the Defendant III                                               6C

                       __
      '\ V\        I                                                                                                                       ...........
                                                                                       ..




                                                                  STATE'S EXHIBIT NO. I

                                                                                                                                                                                 Rev. 11/07




                                                                                                                                                                            26
