James Joseph Watts v. State ( 2015 )

ACCEPTED
06-15-00072 CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
8/4/2015 2:38:31 PM
DEBBIE AUTREY
CLERK
IN THE
COURT OF APPEALS
SIXTH DISTRICT OF TEXAS AT TEXARKANA
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
NO. 06-15-00072-CR 8/4/2015 2:38:31 PM
DEBBIE AUTREY
Clerk
JAMES JOSEPH WATTS, Appellant
VS.
THE STATE OF TEXAS, Appellee
On Appeal from 354th District Court
Hunt County, Texas
Trial Court Cause Nos CR-22,781
APPELLANT'S BRIEF
APPELLANT REQUESTS ORAL ARGUMENTS
TOBY C. WILKINSON
2815 Wesley Street
P.O. Box 324
Greenville, Texas 75403-0324
(903) 454-6096
(903) 454-0446 Fax
S.B.A. #21497300
Attorney for Appellant
1
TABLE OF CONTENT
SECTION PAGE
TABLE OF CONTENTS……………………………………………………………………………………………………………… 2
NAMES OF ALL PARTIES……………………………………………………………………………………………………… 3
INDEX OF AUTHORITIES……………………………………………………………………………………………………… 4
STATEMENT OF THE CASE…………………………………………………………………………………………………… 5
ISSUES PRESENTED………………………………………………………………………………………………………………… 6
Number One (In Summary: The trial attorney
rendered ineffective assistance to Appellant.)
FACTS……………………………………………………………………………………………………………………………………………… 6
LAW…………………………………………………………………………………………………………………………………………………… 7
SUMMARY OF ARGUMENT………………………………………………………………………………………………………… 8
ARGUMENT……………………………………………………………………………………………………………………………………… 9
CONCLUSION………………………………………………………………………………………………………………………………… 10
REQUEST FOR ORAL ARGUMENTS……………………………………………………………………………………… 10
PRAYER…………………………………………………………………………………………………………………………………………… 11
CERTIFICATE OF SERVICE………………………………………………………………………………………………… 11
2
NAMES OF ALL PARTIES AND ATTORNEYS
So the members of the Court can determine disqualification
and recusal under Texas Rules of Appellate Procedure 15 and 15a,
Appellant certifies that the following is a complete list of the
parties, attorneys, the trial court judge, and any other person
who has an interest in the outcome of this case:
Appellant: James Joseph Watts
1385 FM 3328
ID 1985038
Palestine, Tx
75803
Appellant's trial counsel: Jerry W. Card
4503 CR 1033
Celeste, TX 75423
Appellant's counsel on Appeal: Toby C. Wilkinson
P.O. Box 324
Greenville, Texas
75403-0324
Appellee: The State of Texas
Appellee's trial counsel: Lauren Hudgeons
2507 Lee Street,
Fourth Floor
Greenville, Tx
75401
Appellee's counsel on appeal: Noble D. Walker
2507 Lee Street,
Fourth Floor
Greenville, Tx
75401
Trial Judge: Richard A. Beacom, Jr
2507 Lee Street,
Third Floor
Greenville, Tx
75401
3
INDEX OF AUTHORITIES
Page:
Cases:
KNIGHT a/k/a Genary Lois Bailey, v. Texas 91 S.W. 3rd 418…………… 8
(Tex. App. Waco.2002)
Lockhart v. Fretwell, 506 U.S. 364 …………………………………………………………………… 8
Constitution:
U.S. Constitution, Amendment VI …………………………………………………………………………… 7
4
STATEMENT OF THE CASE
Nature of the Case
This is a criminal case wherein the Appellant was on 10
years Deferred Adjudication Probation for the offence of
Aggravated Sexual Assault of a Child Younger than 14 year of
age. The State filled a Motion to Revoke Deferred Adjudication
Community Supervision and Request for Finale Adjudication.
Course of the Proceedings
On or about April 1, 2005 Appellant was indicted for the
offence of Aggravated Sexual Assault of a Child Younger than 14
years of age. (Clerk’s Record CD 1 page 6 hereinafter referred
to as C.R. p.). On August 5, 2005 Appellant was placed on 10
years Deferred Adjudication Community Supervision with
conditions of Probation (C.R. pp 44-54). On or about December 4,
2014 the State filled a Fourth Motion to Revoke Deferred
Adjudication Community Supervision and Request for Finale
Adjudication (C.R. pp 110-114). On or about December 18, 2014
Jerry Card, Esq. was appointed to represent Appellant C.R. p
117). On February 18, 2015 a hearing was held in the 354th
Judicial District Court Hunt County Texas and Appellant’s
Community Supervision was revoked; Appellant was found guilty.
The Judge sentenced Appellant to 20 years and 0 months and 0
days in the Institutional Division, TDCJ (C.R. pp 122-126). On
5
February 25, 2015 a Notice of Appel was filled (C.R. p 134). On
March 17, 2015 a Motion for New Trial and Motion in Arrest of
Judgment was filled and presented to the Court (C.R. pp 137-
139). On May 4, 2015 the Court held a hearing on the Motion for
New Trial (Court Reporter’s Record Volume 4 hereinafter referred
to as C.R.R. Vol. p.).
Trial Court’s Disposition
On February 18, 2015, the Trial Court entered a judgment
adjudicating Appellant’s guilt. The Court thereafter sentenced
Appellant to 20 years in the Institutional Division of Texas
Department of Criminal Justice. The Court granted the Appellant
credit for 429 days served.
Point of Error:
The Trial Attorney rendered ineffective assistance of
counsel to the Appellant by not calling necessary
witnesses.
Facts:
On February 16, 2015 a hearing was conducted in this
matter by the 354th Judicial District Court of Hunt County
Texas regarding the Motion to Revoke Appellant’s Community
Supervision (C.R.R. Vol. 3 pp.7-145). At the true/ not true
portion of the hearing the State called the following
witnesses Michael McAda, Scott Sleeman, Terri Baker, Krista
Stinnett, Steve Scott, and Samantha Manrique (C.R.R. Vol. 3
pp. 9-112). The Appellant’s attorney called the Appellant
6
(C.R.R. Vol. 3 pp. 112-132). At the Punishment phase the
State did not call any witnesses (C.R.R. Vol. 3 p. 137).
Appellant’s attorney requested a continuance for the
purpose of having other witnesses testify and the Judge
denied the request (C.R.R. Vol. 3 p. 137). Appellant’s
attorney called one witness at Punishment Diane Watkins
(C.R.R. Vol. 3 pp. 138-141). Appellant would further show
that he had requested his attorney call Dr. Anna Shursen,
Kayla Ashley, Edward Watts, Victor Harris (a neighbor),
Rhonda Wooten, and his mother-in-law [Cynthia Mauldin]
(C.R.R. Vol. 4 pp.7-8). Appellant’s attorney decided not to
call Dr. Shursen but did not discuss the decision with
Appellant (C.R.R. Vol. 4 p. 18). Appellant would show that
while his attorney did not request a continuance in the
true/not-true phase, he did seek a continuance in the
Punishment phase additionally Appellant’s attorney failed
to subpoena any of the witnesses (C.R.R. Vol. 4 p. 24).
Law:
The Sixth Amendment of the U.S. Constitution guarantees a
criminal defendant the right to the effective assistance of
counsel.
"In all criminal prosecutions, the accused shall . . . have
the assistance of counsel for his defense."
-U.S. Constitution, Amendment VI
7
A convicted defendant who claims that he was denied
his right to the effective assistance of counsel
must establish that (1) counsel’s performance was
constitutionally “deficient” and that (2) counsel’s
errors“prejudiced the defense.” Strickland v.
Washington,466 U.S. 668, 687 (1984). Such prejudice
requires a reasonable probability that counsel’s
performance affectedthe outcome. Ibid. Not all differences
in outcome, however,can constitute cognizable prejudice.
Because the touchstone of the inquiry is reliability and
fundamentalfairness, cognizable prejudice occurs only if
counsel’serror deprives the defendant of a “substantive or
procedural right to which the law entitles him” in his
defense. Lockhart v. Fretwell, 506 U.S. 364, at page 372
(1993).
In KNIGHT a/k/a Genary Lois Bailey, v. Texas 91 S.W. 3rd
418 (Tex. App. Waco.2002) at page 424 the court held
To prevail on an ineffective assistance claim, an
appellant must overcome the strong presumption that counsel
rendered reasonably professional assistance. See Thompson
v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App.1999).
Ordinarily, this presumption cannot be overcome without
evidence in the record of counsel's reasons for the acts or
omissions of which the appellant complains. See Johnson v.
State, 68 S.W.3d 644, 655 (Tex.Crim.App.2002); Thompson, 9
S.W.3d at 813-14; Murray v. State, 24 S.W.3d 881, 891
(Tex.App. — Waco 2000, pet. ref'd). However, we do note
that a single act or omission on counsel's part can be so
egregious as to constitute ineffective assistance. See
Thompson, 9 S.W.3d at 813; Scott v. State, 57 S.W.3d 476,
483 (Tex.App. — Waco 2001, pet. ref'd).
Summary of Argument:
Appellant contends his attorney failed to investigate
this matter because he failed to interview witnesses. The
attorney failed to call or subpoena witnesses to the
hearing. Appellant would show that this lack of assistance
by his trial attorney harmed him because he was not given a
8
fair and adequate hearing. This failure by his attorney
amounted to ineffective assistance of counsel.
Argument:
Appellant would show that he was facing a revocation
of his community supervision and if revoked the minimum
punishment was two years in prison and a maximum of ninety-
nine years, or life, in prison. Appellant’s attorney by his
own admission failed to talk to his counselor, Dr. Anna
Shursen. Additionally the attorney did not investigate this
matter by talking to his witnesses or other potential
witnesses, both fact and punishment. The attorney stated
that he had met with the Appellant on several occasions yet
he failed to call any witnesses. Additionally the trial
attorney claims that he did not know who two of the
witnesses were. Appellant would show that had his attorney
done a proper investigation he would have talked to all of
the witnesses who lived near the appellant. Appellant
contends he was harmed by the trial attorney’s failure to
investigate and defend him. Appellant contends that these
failures on the part of his trial attorney rendered the
attorney’s assistance ineffective denying him a fair
hearing.
9
Appellant would show that Dr. Shursen would testify
that he was still in the program and doing well. The other
witnesses would have refuted the state’s witnesses’
testimony that he had been around the children. Finally,
Appellant would show that the trial attorney knew it was
improper to have the witnesses at the hearing or he would
not have asked for a continuance. If the attorney had done
his job, these witnesses would have been subpoenaed and
would have been at the hearing.
Conclusion:
Appellant contends that the witnesses he requested
would have made a valuable contribution to his defense.
Appellant’s trial attorney failed and refused to subpoena
any of the witnesses that Appellant requested. Appellant’s
attorney did not provide the Court with any strategy that a
reasonable trial attorney would have employed in his
defense of the Appellant because of the attorneys
ineffective assistance Appellant was harmed and this Court
should order a new hearing in the matter.
Request for Oral Arguments:
Appellant’s attorney requests that he be allowed to
present oral arguments in this matter.
10
Prayer:
WHEREFORE, PREMISES CONSIDERED, Appellant prays that
this Court reverse the Trial Court. Appellant requests
this Court to grant him a new hearing in this matter.
Respectfully submitted this 3rd day of August 2015.
\S\Toby C. Wilkinson
Toby C. Wilkinson
CERTIFICATE OF SERVICE:
The undersigned Attorney hereby certifies that a true
and correct copy of this Appellant's Brief has been hand
delivered this date to HONORABLE Nobel D. Walker, Hunt
County District Attorney, Hunt County Courthouse,
Greenville, Texas, and that a true and correct Copy will be
delivered by certified mail return receipt request to
Appellant, James Joseph Watts, this the 4th day of August,
2015.
\S\Toby C. Wilkinson
Toby C. Wilkinson
11
CERTIFICATE OF COMPLIANCE OF WORD COUNT
In Accordance with Texas Rule of Appellate Procedure
9.4(i), the undersigned attorney of record certifies that
the Appellant’s Brief contains 1,730 words, excluding those
words identified as not being counted in Appellate Rule of
Procedure 9.4(i)(1), and was prepared on Microsoft Word
2010.
_ \S\ Toby C. Wilkinson
Toby C. Wilkinson,
12