Williams, Dennis Anthony ( 2018 )

PD-0268-18 PD-0268-18
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/9/2018 3:39 PM
Accepted 3/9/2018 4:14 PM
DEANA WILLIAMSON
PD NO. ________ CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
FILED
COURT OF CRIMINAL APPEALS
AT AUSTIN 3/9/2018
DEANA WILLIAMSON, CLERK
………………………………………………………………………………………
NO. 14-16-00843-CR
IN THE COURT OF APPEALS FOR THE
FOURTEENTH DISTRICT OF TEXAS
AT HOUSTON
………………………………………………………………………………………
TRIAL COURT NO. 1462169
IN THE 248TH DISTRICT COURT
OF HARRIS COUNTY, TEXAS
………………………………………………………………………………………
DENNIS ANTHONY WILLIAMS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
………………………………………………………………………………………
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
………………………………………………………………………………………
NICOLE DEBORDE
Attorney for Appellant
TBA No. 00787344
712 Main St, Suite 2400
Houston, Texas 77002
Telephone: (713) 526-6300
Fax: (713) 228-0034
Email: Nicole@debordelawfirm.com
i
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. R. 68.4(a), the following is a list of all parties to
the trial court’s judgment as well as the names and addresses of trial and appellate
counsel.
Appellant: Dennis Anthony Williams
TDCJ Number 02095920
Huntsville Unit
815 12th Street
Huntsville, TX 77348
Presiding Judge: Hon. Regan Clark
248th Judicial District Court
Houston, TX 77002
Trial Prosecutor Mr. Patrick Stayton
Mrs. Katie Warren
Assistant District Attorneys
Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
Defense Counsel: Mr. George Tennant
Attorney at Law
723 Main Street
Houston, Texas 77002
State’s Appellate Counsel: Travis Dunlap
Harris County District Attorney
1201 Franklin
Houston, Texas 77002
Appellant’s Counsel: Nicole DeBorde
Bires, Schaffer and DeBorde
712 Main St., Suite 2400
Houston, Texas 77002
ii
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. PROC. 68.4(c), appellant does not request oral
argument.
iii
TABLE OF CONTENTS
Identity Of Parties And Counsel ............................................................................... ii
Statement Regarding Oral Argument ...................................................................... iii
Index Of Authorities ..................................................................................................v
Statement Of The Case ..............................................................................................1
Statement Of Procedural History ...............................................................................5
Question For Review Number One: ..........................................................................6
If A Lawyer In Advance Of A Punishment Hearing Fails
To Contact Any Witnesses, Fails To Provide Any
Information To The Court And, Besides Making A
Obviously False Argument, Provides No Other Form Of
Advocacy, Is The Deficient Representation
“Presumptively Unreliable”?.................................................................6
Argument....................................................................................................................6
Prayer For Relief ........................................................................................................8
Certificate Of Compliance .......................................................................................10
Certificate Of Service...............................................................................................10
Appendix ..................................................................................................................11
iv
INDEX OF AUTHORITIES
Cases
Florida v. Nixon,
542 U.S. 175 (2004) ..........................................................................................7
Head v. State,
299 S.W.3d 414 (Tex.App.—Houston [14th Dist.] 2009, pet. ref’d) ...............8
Hernandez v. State,
726 S.W.2d 53 (Tex. Crim. App. 1986). .........................................................7
Medina v. State,
2017 WL 4410269 (Tex. Crim. App. 2017)..................................................8, 9
Powell v. Alabama,
287 U.S. 45 (1932) ...........................................................................................6
State v. Frias,
511 S.W.3d 797 (Tex.App—El Paso 2016, pet. ref’d) .....................................8
Strickland v. Washington,
446 U.S. 668 (1984) ......................................................................................5, 7
United States v. Cronic,
466 U.S. 648 (1984).........................................................................................7
Statutes
TEX. CONST. ART. I, §10 .................................................................................6
TEX. R. APP. PROC. 66.3(c) ..............................................................................9
TEX. R. APP. PROC. 68.4(c) ............................................................................ iii
TEX. R. APP. PROC. 78.1(d ...............................................................................9
TEX. R. APP. R. 68.4(a ...................................................................................... ii
U.S. CONST. amends. VI and XIV.......................................................................6
v
TO THE COURT OF CRIMINAL APPEALS:
STATEMENT OF THE CASE
Appellant was charged and ultimately convicted of penetrating his step-
daughter’s sexual organ with his finger. (C.R. 10). After setting his case for trial
and after wavering while a jury was in the hallway, Appellant agreed to plead
guilty to the court in exchange for a pre-sentence investigation with an open
punishment range capped at twenty-five years. (C.R. 221; R.R. Vol. 1 at 114-15).
Almost immediately after entering his plea, Appellant regretted his decision. He
told the PSI writer he was not guilty and wanted to withdraw his plea. (State Ex.
2). He also filed a pro se motion to withdraw his plea and remove his attorney,
George Tennant, from the case. (R.R. Vol. 1 at 154-5; C.R. 208-12).
Tennant likewise moved to withdraw himself from the case just prior to
beginning Appellant’s punishment hearing, claiming it was “virtually impossible”
to continue to represent Appellant. (State Ex. 3 at 6). Tennant’s co-counsel, Dana
Bradberry, concurred telling the court, “. . .it’s in no one’s best interest for us to
continue on this case.” (State Ex. 3 at 6-7).
During the same hearing, however, Appellant stated he no longer wished to
withdraw his plea and instead wanted to continue his punishment hearing with
Tennant and Bradberry as his attorneys. (State Ex. 3 at 10). As a result, the trial
court summarily denied both Appellant’s and Tennant’s motions to withdraw from
1
the case as well as Appellant’s motion to withdraw his guilty plea. (State Ex. 3 at
11).
Proceeding immediately into Appellant’s punishment hearing, neither side
presented any witnesses or offered any evidence besides the PSI report. (State Ex.
3 at 13). Tennant then requested and made a “brief argument.” (State Ex. 3 at 13).
In this argument Tennant suggested Appellant deserved a sentence where he could
work in the community, even though community supervision was not a part of the
punishment range. (State Ex. 3 at 15). Further, Tennant strangely asserted
Appellant deserved a lenient sentence because, despite Appellant’s motion to
withdraw his guilty plea, despite Appellant’s claim of innocence in the PSI report,
and despite there being no indication in the record of an acceptance of
responsibility, Appellant had “owned up” and “taken ownership” of the crime.
(State Ex. 3 at 14). Further undermining any acceptance of responsibility was
Tennant’s additional argument that Appellant’s actions were really the result of the
child complainant who “manipulated” Appellant into “petting and foreplay.” (State
Ex. 3 at 14-16). After skeptical questioning from the court, Tennant explained
Appellant, a fifty year old man, “should have been warned about the potential
powder keg he was walking into by the (complainant’s) family” because Appellant
“wasn’t equipped to deal” with a 10-12 year old girl’s sexual advances. (State Ex.
3 at 16). The trial court responded flatly that it “doesn’t sound like. . . he’s taken
2
any responsibility whatsoever for his actions.” (State Ex. 3 at 16). The trial court
then sentenced Appellant to the maximum sentence of 25 years and explained,
“what I read in this Presentence Investigation Report is a man that still has a very
defiant attitude, which belies the argument from counsel that he has some remorse
for what he did.” (State Ex. 3 at 20).
Appellant timely gave notice of intent to appeal and filed a Motion for New
Trial. In Appellant’s hearing on the Motion for New Trial, several witnesses
testified to Appellant’s good character and claimed that, if they had only been
informed, they would have appeared to testify at Appellant’s punishment hearing.
(R.R. Vol. 1 at 11-91). These witnesses included Appellant’s sisters, his brother-
in-law, his ex-wife, and his former step-daughter.
Tennant also testified at Appellant’s hearing on his Motion for New Trial
and acknowledged several fundamental failures. He acknowledged he failed to
contact any of Appellant’s potential punishment witnesses. (R.R. Vol. 1 at 109).
He acknowledged he did not attend, and had no explanation for not attending,
Appellant’s PSI interview in which Appellant denied committing the charged
offense. (R.R. Vol. 1 at 107). Tennant acknowledged not making any contribution
to the PSI report—other than, curiously, “the defendant’s mindset.” (R.R. Vol. 1 at
146, 152). The only information Tennant could claim credit for “preparing for the
court” was that Appellant was a productive member of society with no criminal
3
history who was ready to take responsibility for his actions. (R.R. Vol. 1 at 107).
Tennant claimed to have “prepared” this information by raising it through closing
argument, though Tennant also agreed that Appellant himself had submitted all of
this same information directly to the PSI writer. (R.R. Vol. 1 at 107, 110).
Tennant conceded that, at most, he had visited Appellant in jail one time between
Appellant’s plea and sentencing—though Tennant had no specific recollection of
visiting Appellant at all. (R.R. Vol. 1 at 109-110). And Tennant was unsure
whether he read the PSI report before arriving to court on the day of Appellant’s
punishment hearing. (R.R. Vol. 1 at 111).
Tennant explained he had no legal strategy for most of these failures and did
not seem to understand his failures rendered his representation deficient. The only
semblance of a strategy Tennant could claim pertained to Tennant’s failure to
contact any witnesses on Appellant’s behalf. On this point Tennant claimed
Appellant instructed him not to contact any family members because Appellant
believed they had “suffered enough.” (R.R. Vol. 1 at 110). This claim, however,
could not be verified through any documentation in Tennant’s trial file and
Tennant refused to produce his file—despite Appellant’s repeated requests. (R.R.
Vol. 1 at 92-102).
The trial court, after hearing from all the witnesses in the hearing on
Appellant’s Motion for New Trial, seemed to assume Tennant’s representation was
4
below the objective standard set forth in Strickland v. Washington. But the trial
court did not make a specific finding that Tennant was objectively deficient in his
performance. (R.R. Vol. 1 at 188-89). Rather, the court found Appellant’s
outcome was not affected by Tennant’s failures and that the court would still have
sentenced Appellant to 25 years in prison regardless of any purported
ineffectiveness. (R.R. Vol. 1 at 189).
STATEMENT OF PROCEDURAL HISTORY
On March 24, 2015, a warrant for Aggravated Sexual Assault of Child was
issued for Appellant alleging he penetrated the complainant with his finger on
December 18, 2014. (C.R. 10). On August 15, 2016, Appellant entered a plea of
guilty with a sentencing cap of twenty-five years. (C.R. 189-90). On October 14,
2016, the trial court conducted a pre-sentence investigation hearing and sentenced
Appellant to twenty-five years in prison. (C.R. 221). Appellant timely filed a
motion for new trial on November 11, 2016. (C.R. 246). In the motion, Appellant
alleged he received ineffective assistance of counsel during both the
guilt/innocence phase and punishment phase of trial. (C.R. 246-70). The trial
court held a hearing and overruled this motion on December 21, 2016. (R.R. Vol.
11). In that hearing, Appellant opted not to pursue any allegations regarding his
1
The reporter’s record contains two different volumes entitled “Volume 1”. One is the plea
colloquy, the other is the motion for new trial hearing. In this brief, “Volume 1” will refer
exclusively to the record of Appellant’s motion for new trial hearing held on December 21, 2016.
5
trial counsel’s guilt/innocence ineffectiveness. (R.R. Vol. 1 at 8). Instead,
Appellant sought to exclusively raise his trial counsel’s ineffectiveness during the
punishment phase of trial. (R.R. Vol. 1 at 8). The trial court denied Appellant’s
motion for new trial. (R.R. Vol. 1 at 190). Appellant gave timely notice of his
intent to appeal and the trial court’s certification of Appellant’s right of appeal
certifies Appellant has received the trial court’s permission to appeal even though
Appellant received a plea bargain. (C.R. 224, 226).
On February 8, 2018, the Fourteenth Court of Appeals affirmed the trial
court’s sentence. Appellant now timely brings this petition for discretionary
review.
QUESTION FOR REVIEW NUMBER ONE:
If A Lawyer in Advance of a Punishment Hearing Fails
to Contact Any Witnesses, Fails to Provide Any
Information to the Court and, Besides Making a
Obviously False Argument, Provides No Other Form of
Advocacy, is the Deficient Representation
“Presumptively Unreliable”?
ARGUMENT
A criminal defendant has the right to the effective assistance of counsel. U.S.
CONST. amends. VI and XIV; TEX. CONST. art. I, §10; Powell v. Alabama, 287 U.S. 45
(1932). Counsel's assistance is ineffective if it falls below an objective standard of
reasonableness and prejudices the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The United
6
States Supreme Court, in Strickland, provided a two-part test for ineffectiveness by
evaluating whether counsel’s performance: (I) was deficient and (2) c au s e d
prejudice. 466 U.S. 668, 687 (1984).
However, in Florida v. Nixon, the U.S. Supreme Court described a narrow
exception to Strickland's holding where the second prong requiring a showing of
prejudice can be presumed. 542 U.S. 175 (2004); (citing United States v. Cronic,
466 U.S. 648, 656-57 (1984); Strickland v. Washington, 466 U.S. 668, 686
(1984)). "[I]f 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 adversarial process itself presumptively
unreliable." Nixon, 466 U.S. at 659.
The Fourteenth Court of Appeals held that Appellant’s trial counsel did not
“entirely fail to subject the prosecution’s case to any meaningful adversarial
testing.” Williams v. State, page 14 (citing State v. Frias, 511 S.W.3d 797, 810
(Tex. App—El Paso 2016, pet. ref’d); Head v. State, 299 S.W.3d 414, 443 (Tex.
App.—Houston [14th Dist]. 2009, pet. ref’d)). The Court of Appeals concluded
trial counsel’s negotiation for a sentencing cap and pursuit of a dismissal of an
additional charge, along with the fact that counsel “advocated for appellant in his
argument to the trial court and objected to a portion of the State’s argument” was
sufficient to show counsel had not “entirely failed.” Williams v. State, page 14.
7
Appellant would note, however, the Court of Appeals opinion omits mention
of Medina v. State, which reversed for a new punishment hearing and held the
failure “to present any punishment phase case” deprived the accused “of his right
to a fair trial.” 2017 WL 4410269 (Tex. Crim. App. 2017). Appellant’s case, like
Medina, involves a defense counsel who totally failed to “present any punishment
phase case.” Id. As a result, Medina, and not Frias or Head, should be controlling.
This case is therefore appropriate for discretionary review because the Court
of Appeals has decided an important question of state and federal law in a way that
conflicts with the applicable decision of the Court of Criminal Appeals. TEX. R.
APP. PROC. 66.3(c).
PRAYER FOR RELIEF
Wherefore, appellant prays that this Honorable Court grant appellant’s
petition for discretionary review; that this cause be set for submission to the Court
of Criminal Appeals; and that, after submission, this Court reverse the judgment of
the Court of Appeals, and remand the case to the trial court for a new punishment
hearing. TEX. R. APP. PROC. 78.1(d).
8
Respectfully submitted,
/s/ Nicole DeBorde
TBA No. 00787344
712 Main St, Suite 2400
Houston, Texas 77002
Telephone: (713) 526-6300
Fax: (713) 228-0034
Email: Nicole@debordelawfirm.com
Counsel for Appellant,
DENNIS WILLIAMS
9
CERTIFICATE OF COMPLIANCE
The word count of the countable portions of this computer-generated
document specified by Rule of Appellate Procedure 9.4(i), as shown by the
representation provided by the word-processing program that was used to create
the document, is 2420 words. This document complies with the typeface
requirements of rule 9.4(e), as it is printed in a conventional 14-point typeface with
footnotes in 12-point typeface.
/s/ Nicole DeBorde
NICOLE DEBORDE
CERTIFICATE OF SERVICE
I hereby certify that a true copy of Appellant’s petition for discretionary
review was served via e-mail delivery through eFile.TXCourts.gov on March 9,
2018 to the following persons:
Kim Ogg
District Attorney
Appellate Division
Harris County District Attorney’s Office
1201 Franklin
Houston, Texas 77002
State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711
/s/ Nicole DeBorde
NICOLE DEBORDE
10
APPENDIX
Opinion of February 8, 2018.
11