CASE NO CR IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS. GEORGE WILLIS LAWRENCE, Appellant

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1 CASE NO CR IN THE COURT OF APPEALS 5th Court of Appeals FILED: 12/16/11 14:00 Lisa Matz, Clerk FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS GEORGE WILLIS LAWRENCE, Appellant v. THE STATE OF TEXAS, Appellee APPEAL IN CAUSE NO FROM THE 59TH JUDICIAL DISTRICT COURT OF GRAYSON COUNTY, TEXAS APPELLANT S BRIEF GARLAND D. CARDWELL STATE BAR NO S. TRAVIS STREET SHERMAN, TEXAS (903) / (903) (FAX) COURT-APPOINTED ATTORNEY FOR APPELLANT ORAL ARGUMENT NOT REQUESTED December 15, 2011

2 IDENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties to the Trial Court's Judgement and the names and addresses of all trial and appellate counsel: THE STATE OF TEXAS/Appellee - Mr. Joe Brown, District Attorney Grayson County Justice Center 200 S. Crockett Street Sherman, Texas Ms. Bobbie Cate, Trial Counsel Assistant District Attorney 120 S. Crockett Street Sherman, Texas Ms. Karla Hackett, Appellate Counsel Assistant District Attorney Grayson County Justice Center 200 S. Crockett Street Sherman, Texas GEORGE WILLIS LAWRENCE/ - Mr. G. Talmadge Nix, Trial Counsel Appellant Attorney at Law 112 N. Travis Street Sherman, Texas Ms. Pamela A. McGraw Initial Appellate Counsel Attorney at Law 200 N. Travis Street, Ste. 402 Sherman, Texas Mr. Garland D. Cardwell Substitute Appellate Counsel Munson, Munson, Cardwell & Tillett 123 S. Travis Street Sherman, Texas i

3 STATEMENT REGARDING ORAL ARGUMENT Pursuant to Rule 39.7 and 39.8 of the Texas Rules of Appellate Procedure, Appellant waives oral argument in this case unless this Court determines that oral argument is necessary. Appellant submits that oral argument herein would not significantly aid the Court in determining the legal and factual issues being presented in this appeal. ii

4 TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL... i STATEMENT REGARDING ORAL ARGUMENT ii TABLE OF CONTENTS... iii INDEX OF AUTHORITIES... iv-vi PRELIMINARY STATEMENT OF THE CASE...2 STATEMENT OF JURISDICTION...4 STATEMENT OF FACTS...4 APPELLANT'S POINTS OF ERROR...4 POINT OF ERROR I. THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED BURGLARY OF A BUILDING AS ALLEGED IN THE INDICTMENT. (R.R. VOL. 3, P , 33, 44-45, 49-52, 56-58, 61-66, 71-72, 74-76, 80-81, 84-85, 95-96, , 109, , 115, 118, 127, , ; VOL. 5, SX 32)... 4, 5 POINT OF ERROR II. APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. (R.R. VOL. 3, P. 117, 123; VOL. 5, SX 32)....4, 13 STATEMENT OF PERTINENT FACTS, ARGUMENT AND AUTHORITIES CONCLUSION AND PRAYER...18 CERTIFICATE OF SERVICE...18 iii

5 INDEX OF AUTHORITIES Page CONSTITUTIONS TEX. CONST. art. I U.S. CONST. amend. VI...13 U.S. CONST. amend. XIV...13 STATUTES TEX. CODE CRIM. PROC. ANN. art (Vernon 1981) TEX. CODE CRIM. PROC. ANN. art (Vernon 1981) TEX. PENAL CODE ANN (Vernon 1974) TEX. PENAL CODE ANN (a) (Vernon 2001) , 9 TEX. PENAL CODE ANN (a)(1) (Vernon 2001) TEX. PENAL CODE ANN (a)(2) (Vernon 2001) TEX. PENAL CODE ANN (b) (Vernon 2001) TEX. PENAL CODE. ANN (Vernon 2001) TEX. R. APP. P TEX. R. APP. P. 38.1(f)...4 TEX. R. APP. P ii TEX. R. APP. P ii TEX. R. EVID iv

6 TEX. R. EVID. 105(a)...15 TEX. R. EVID TEX. R. EVID TEX. R. EVID. 404(b)...15 CASES Albert v. State, 579 S.W.2d 925, 926 (Tex. Crim. App. 1979) Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005) Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984),cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L. Ed.2d 153 (1985) Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) Buchanan v. State, 708 S.W.2d 467, (Tex. App. Dallas 1989, pet ref d) Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986) Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App. 1989) Callahan v. State, 502 S.W.2d 3, 6 (Tex. Crim. App. 1973) , 11 Clewis v. State, 922 S.W. 2d 126 (Tex. Crim. App. 1996) Dove v. State, 402 S.W.2d 913, 915 (Tex. Crim. App. 1966) Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App. 1984) Grinage v. State, 634 S.W. 2d 863, 866 (Tex. App. San Antonio 1982, pet ref.) Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) v

7 Huff v. State, 492 S.W.2d 532, 533 (Tex. Crim. App. 1973) st Hutchinson v. State, 663 S.W.2d 610 (Tex. App. Houston [1 Dist.] 1983, pet ref d)...15, 16 Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) Jayroe v. State, 707 S.W.2d 652, 654 (Tex. App. Texarkana 1986, pet ref.) Johnson v. State, 664 S.W.2d 420, 422 (Tex. App. - Amarillo 1983, pet ref d) Jones v. State, 587 S.W.2d 115 (Tex. Crim. App. 1979) st McLemore v. State, 638 S.W.2d 211, 214 (Tex. App. Houston [1 Dist.] 1982, no pet.)...10 Poncia v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006) Roberts v. State, 672 S.W.2d 570, 580 (Tex. App. Fort Worth 1984, no pet) Strickland v. Washington, 466 U.S. 668 (1984) , 14, 17 Thommen v. State, 505 S.W.2d 900, (Tex. Crim. App. 1974) Vela v. State, 771 S.W.2d 659, (Tex. App. Corpus Christi 1989, pet ref d )...11 Wiggons v. Smith, 539 U.S. 510 (2003)...14 Willis v. State, 55 S.W. 829, 829 (Tex. Crim. App. 1900) vi

8 CASE NO CR IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS GEORGE WILLIS LAWRENCE, Appellant v. THE STATE OF TEXAS, Appellee APPEAL IN CAUSE NO FROM THE 59TH JUDICIAL DISTRICT COURT OF GRAYSON COUNTY, TEXAS APPELLANT S BRIEF TO THE HONORABLE JUDGES OF THE COURT OF APPEALS: COMES NOW, GEORGE WILLIS LAWRENCE, hereinafter referred to as Appellant, and submits this Brief pursuant to the provisions of Rule 38 of the Texas Rules of Appellate Procedure, respectfully requesting that this Honorable Court reverse the jury's 1

9 verdict and the sentence in this cause before this Court, and herein render judgment acquitting Appellant and dismissing said cause. In support thereof, Appellant would respectfully show the Court as follows: PRELIMINARY STATEMENT OF THE CASE Appellant, George Willis Lawrence, was charged herein by Indictment with the state jail felony offense of Burglary of a Building - Enhanced, filed for record on June 3, 2009, with the District Clerk of Grayson County, Texas. The Indictment alleged that on or about June 15, 2008, in Grayson County, Texas, Appellant did then and there, with intent to commit theft, enter a building or a portion of a building not then open to the public, without the effective consent of Edward Flowers, the owner thereof, against the peace and dignity of the State. (C.R., P. 2; R.R. Vol. 3, P.14-17). Any reference in this Brief to the Clerk s Record hereinafter shall be cited C.R., P., and the Reporter s Record hereinafter shall be cited R.R. Vol., P.. To such charge, Appellant entered his plea of not guilty and the charge proceeded to trial before a jury on October 26, 2009, through October 28, (R.R. Vol. 2-3). In the Indictment, Appellee included its notice of enhancement of Appellant s punishment range to a second degree felony based upon his prior final convictions for the felony offenses as alleged in such enhancement paragraphs. (C.R., P. 2). Appellant elected not to testify to the Jury during the guilt/innocence phase of the trial. At the close of the evidence and arguments of counsel during the guilt or innocence phase of the trial, the jury duly returned its verdict finding Appellant guilty of Burglary of 2

10 a Building, as charged in the Indictment. (C.R., P ; R.R. Vol. 3, P. 176). Thereafter, as elected by Appellant, his case proceeded to a punishment hearing before the Judge on October 26, 2009, and at the beginning of such hearing, Appellant entered a plea of True to the prior final felony convictions set forth in the enhancement paragraphs alleged in the Indictment. (C.R., P. 41; R.R. Vol. 4, P. 4-5). After hearing the evidence and arguments, the Judge assessed Appellant s punishment at twelve (12) years confinement in the Texas Department of Criminal Justice - Institutional Division, with no fine being imposed. ( C.R., P ; R.R. Vol. 4, P. 20). Appellant was immediately sentenced in open court and remanded to the custody of the Sheriff of Grayson County. (R.R. Vol. 4, P. 20). The Trial Court entered and filed written Judgment and Sentence on October 30, (C.R., P ). Appellant filed his timely Motion for New Trial on November 25, 2009, which Motion was overruled by operation of law without a hearing being held. (C.R., P ). Notice of Appeal to this Court was originally filed on January 27, 2010, by previous appellate counsel, Pamela McGraw. (C.R., P. 68). However, on October 21, 2010, this Court entered a Memorandum Opinion and Judgment dismissing the original appeal in Case No CR for want of jurisdiction due to previous appellate counsel s failure to timely file the Notice of Appeal. (C.R., P ). Thereafter, pursuant to an Application for Writ of Habeas Corpus filed on Appellant s behalf seeking an out-of-time appeal, the Texas Court of Criminal Appeals 3

11 rendered an Opinion dated June 22, 2011, finding that Appellant was entitled to file an outof-time appeal. (C.R., P ). As a result of this Opinion, the undersigned was appointed by the Trial Court to pursue this appeal on June 28, (C.R., P. 91). The Mandate of the Texas Court of Criminal Appeals was issued July 18, (C.R., P. 93). Thereafter, as ordered in the Opinion of the Texas Court of Criminal Appeals, Notice of Appeal to this Court was timely filed on August 8, (C.R., P. 92). STATEMENT OF JURISDICTION This Honorable Court has jurisdiction to hear this appeal pursuant to Article 4.03 of the Texas Code of Criminal Procedure. STATEMENT OF FACTS A statement of pertinent facts will be set forth with each point of error along with appropriate argument and authorities to support each point of error as contemplated by Rule 38.1(f) of the Texas Rules of Appellate Procedure. APPELLANT'S POINTS OF ERROR POINT OF ERROR I. THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED BURGLARY OF A BUILDING AS ALLEGED IN THE INDICTMENT. (R.R. VOL. 3, P , 33, 44-45, 49-52, 56-58, 61-66, 71-72, 74-76, 80-81, 84-85, 95-96, , 109, , 115, 118, 127, , ; VOL. 5, SX 32). POINT OF ERROR II. APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. (R.R. VOL. 3, P. 117, 123; VOL. 5, SX 32). 4

12 STATEMENT OF PERTINENT FACTS, ARGUMENT AND AUTHORITIES POINT OF ERROR I. THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED BURGLARY OF A BUILDING AS ALLEGED IN THE INDICTMENT. (R.R. VOL. 3, P , 33, 44-45, 49-52, 56-58, 61-66, 71-72, 74-76, 80-81, 84-85, 95-96, , 109, , 115, 118, 127, , ; VOL. 5, SX 32). Statement of Pertinent Facts: This case arises out of the arrest, conviction and twelve-year commitment of confinement of George Willis Lawrence, Appellant, for the offense of Burglary of a Building. However, there was absolutely no physical evidence or witness statements offered into evidence at trial to prove that Appellant ever entered the building in question. On June 15, 2008, Ed Flowers contacted the Sherman Police Department after he discovered his lawn mower and some other items were stolen from his former electrical business, Ed Flowers Electric Motor Service, which at this time merely served as a storage building, and garage where Flowers would occasionally go to work after his retirement. (R.R. Vol. 3, P , 61-63). According to Flowers, it had been some time since he had last been to this building, possibly as far back as the preceding April. (R.R. Vol. 3, P. 84). He noticed that a window had been removed and the door had been left unlocked after being opened from the inside. (R.R. Vol. 3, P , 33, 65-66). He also noticed some of his tools and other items from the building were scattered in the grass and the area around the outside of the building. (R.R. Vol. 3, P , 37-38, 64). 5

13 After reporting the burglary, Flowers repaired the window, then did not return to the building again until June 21, (R.R. Vol. 3, P , 84-85). At this time he noticed another window had been busted out and again he noticed other items had been taken. (R.R. Vol. 3, P , 71-72, 80-81). Specifically, some electrical wire that was kept on spools. (R.R. Vol. 3, P , 71-72). While Flowers could not be certain some of the wire had not been taken during the earlier break in, he noticed this wire was missing for the first time after the second break in. (R.R. Vol. 3, P , 75-76, 80-81). Again, Flowers found his tools, some spools of electrical wire and other items outside of the building. (R.R. Vol. 3, P , 56, 74-76). Detective Emmons of the Sherman Police Department found that the lawn mower identified as stolen by Flowers on June15th had been pawned at EZ-Pawn Shop by a gentleman identified by the detective as Appellant. (R.R. Vol. 3, P , 102). He also found that Appellant had sold the same pawn shop some tools that Flowers had identified as being the same tools stolen from his building. (R.R. Vol. 3, P. 95). Detective Emmons further found that wire fitting the description provided by Flowers was sold to Sherman Recycling & Supply by Appellant on June 5, 2008, June 7, 2008, June 12, 2008, and twice on June 13, (R.R. Vol. 3, P ). The wire that Detective Emmons claimed was sold by Appellant constituted only a small amount of the total wire that was claimed to have been stolen. (R.R. Vol. 3, P ). There was no wire found in Lawrence s possession or at his place of residence. (R.R. Vol. 3, P ). 6

14 On June 24, 2008, following a voluntary search of the residence where Appellant was staying (R.R. Vol. 3, P. 109), he was brought into the Sherman Police Department for a video recorded interrogation which was introduced to the jury in this case without objection. (R.R. Vol. 3, P. 118). None of the items reported as stolen by Flowers were located at Appellant s residence. (R.R. Vol. 3, P. 109). During this interview Appellant claimed to have found the wire in a back pack near a dumpster further down the highway from where Flowers building was located. (R.R. Vol. 3, P ; Vol. 5, SX 32). Appellant admitted to being a dumpster diver in this interview. (R.R. Vol. 5, SX 32). Appellant is a sixty-eight year old man with limited income. Id. Appellant also acknowledged walking around this building looking for cans. (R.R. Vol. 3, P. 113; Vol. 5, SX 32). Detective Emmons references Appellant s extensive past criminal history quite a bit during his questioning of Appellant. (R.R. Vol. 5, SX 32). Detective Emmons made it clear that Appellant had been previously convicted of burglary by stating that this has happened before. (R.R. Vol. 5, P. 32). Appellant even acknowledged during this interrogation that he had committed a robbery in the past. (R.R. Vol. 5, SX 32). The full extent and specific nature of Appellant s criminal history, however, was not presented to the jury. (R.R. Vol. 3, P ). There was absolutely no physical evidence or witness testimony offered at trial that proved that Appellant was the person who entered this building. (R.R. Vol. 3, P , 60). There certainly were no fingerprints found that were matched to Appellant. (R.R. Vol. 3, P. 7

15 127). The only affirmative link between Appellant and the burglary of Flowers building is the fact that the lawn mower and some of the tools that had been removed from the building were pawned by Appellant, and that he had sold some of the wire to a salvage yard on more than one occasion. (R.R. Vol. 3, P. 115). There was no evidence introduced that indicated Appellant ever entered that building. Additionally, no evidence was introduced that contradicted Appellant s claim to have located the items outside of the building. (R.R. Vol. 3). Argument and Authorities: Appellant was charged by Indictment with Burglary of a Building by entering a building with the intent to commit a theft, when such building was not then open to the public, without the effective consent of Ed Flowers, the owner thereof. (C.R., P. 2). A person may commit a burglary in one of three manners. TEX. PENAL CODE ANN (a) (Vernon 2001); Albert v. State, 579 S.W.2d 925, 926 (Tex. Crim. App. 1979): 1. By entering a habitation or building or any portion of a building not then open to the public, without the effective consent of the owner, with an intent to commit a felony or theft; 2. By remaining concealed in a habitation or building, without the effective consent of the owner, with an intent to commit a felony or theft; or 3. By entering a habitation or building, without the effective consent of the owner, and committing or attempting to commit a felony of theft. If a defendant is charged with burglary under either of the first two methods listed above, TEX. PENAL CODE ANN (a)(1) or (a)(2), the state is required to prove that 8

16 defendant s intent was to commit a felony or theft at the time the defendant entered or remained concealed in a habitation or building. The defendant need not break into a habitation or building to commit the offense of burglary. TEX. PENAL CODE. ANN For example, a person may make an unlawful entry by walking through an open door when the entry is without the owner s consent. Johnson v. State, 664 S.W.2d 420, 422 (Tex. App. - Amarillo 1983, pet ref d). The central elements of the offense of burglary are basically entry and concealment. Jones v. State, 587 S.W.2d 115 (Tex. Crim. App. 1979); see also TEX. PENAL CODE ANN (a) (Vernon 2001). A person may enter a building by intruding any part of the body or any physical object connected with the body into the building. TEX. PENAL CODE ANN (b) (Vernon 2001). Moreover, the state may convict a defendant of burglary without showing an entry if the state can prove the defendant concealed himself or herself in a building with an intent to commit a felony or theft. Thommen v. State, 505 S.W.2d 900, (Tex. Crim. App. 1974). For example, the failure to leave a business after it closes makes the original entry nonconsensual. Grinage v. State, 634 S.W. 2d 863, 866 (Tex. App. San Antonio 1982, pet ref.). The intent to commit theft may be inferred due to a defendant s unexplained possession of property recently stolen in a burglary - such possession permits an inference that the defendant is the one who committed the burglary. Poncia v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006) (evidence sufficient to support burglary conviction when 9

17 defendant pawned property taken in close temporal and spatial proximity to the burglarized building); Willis v. State, 55 S.W. 829, 829 (Tex. Crim. App. 1900) (unexplained possession of recently stolen property sufficient to connect defendant with property from burglarized house and therefore sufficient to connect defendant with burglary); see also Dove v. State, 402 S.W.2d 913, 915 (Tex. Crim. App. 1966). However, to warrant an inference of guilt from the circumstances of possession alone, the state must show that the possession was personal, recent and unexplained. Id. (Emphasis Added). The personal, recent possession of the stolen property must be unexplained for the inference of guilt to operate. Thus, if the defendant offers a reasonable explanation for possessing the property, the state must disprove the explanation or no inference arises. Huff v. State, 492 S.W.2d 532, 533 (Tex. Crim. App. 1973); McLemore v. State, 638 S.W.2d 211, st 214 (Tex. App. Houston [1 Dist.] 1982, no pet.) (evidence was insufficient to uphold a conviction when the appellant who had been stopped while driving an automobile containing stolen property explained that he had borrowed the car from a friend whose name and telephone number he gave to police, but no police officer tried to reach the friend or to prove that the burglary occurred after the appellant acquired the automobile from the friend). Whether the explanation is reasonable is a question of fact. As a result, the finder of fact is not bound to accept the defendant s explanation. However, the need for evidence disproving an explanation is greater when the explanation is made at the time when the defendant s possession of the property is first challenged. Callahan v. State, 502 S.W.2d 3, 10

18 6 (Tex. Crim. App. 1973); Buchanan v. State, 708 S.W.2d 467, (Tex. App. Dallas 1989, pet ref d). Importantly, the record must show that the explanation is either false or unreasonable in order to support a conviction that is based on the inference of guilt. Vela v. State, 771 S.W.2d 659, (Tex. App. Corpus Christi 1989, pet ref d ). The falsity of an explanation may be shown in circumstantial evidence and determined by the fact finder in light of all of the facts. Callahan v. State, 502 S.W.2d 3, 7 (Tex. Crim. App. 1973); Vela v. State, 771 S.W.2d at 662 (jury was entitled to disbelieve the defendant s explanation of how he came to be carrying a microwave oven in the middle of the night, when he told the officer that he had received it from a friend in payment of a debt, but when asked for the name of the friend, dropped the microwave oven and ran away). An explanation may also be disproved if the defendant later gave another explanation that contradicted the first explanation without explaining the reason for the contradiction. Jayroe v. State, 707 S.W.2d 652, 654 (Tex. App. Texarkana 1986, pet ref.). Inference is an evidentiary one that is used by the appellate court in reviewing the sufficiency of the evidence. Roberts v. State, 672 S.W.2d 570, 580 (Tex. App. Fort Worth 1984, no pet). In the instant case there was no direct evidence that would indicate that Appellant entered the building. Consequently, the jury was required to infer guilt from the evidence presented that Appellant pawned the lawn mower and tools and sold some of the wire to a salvage yard on more than one occasion. However, Appellant offered a reasonable explanation when originally questioned by police about this burglary in that he admitted he 11

19 had been around this building looking for scraps and that he had found a backpack full of wire near a dumpster located in the general proximity of the building. (R.R. Vol. 5, SX 32). The State, however, offered no evidence that would tend to disprove Appellant s explanation. Nor did the State offer any evidence that would explain why the officers did not find Appellant to have ever been in possession of the vast majority of the wire and tools that were reported as stolen. (R.R. Vol. 3, P ). The evidence presented was so weak as to be legally insufficient to support a conviction for Burglary of a Building. The law in Texas requires that all accused persons are presumed innocent, and that the burden in any criminal prosecution is upon the State to prove each element of the offense charged beyond a reasonable doubt. TEX. CODE CRIM. PROC. ANN. art (Vernon 1981); TEX. PENAL CODE ANN (Vernon 1974). Appellant admits that in reviewing the legal sufficiency of the evidence, the evidence is viewed in the light most favorable to the verdict, and after so viewing it, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App. 1989); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L. Ed.2d 153 (1985); Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App. 1984). Recently, the Texas Court of Criminal Appeals has held that this Jackson legal-sufficiency standard is now the only standard courts should apply to determine if the evidence in a case is sufficient to prove each 12

20 element of an offense beyond a reasonable doubt, thereby overruling Clewis v. State, 922 S.W. 2d 126 (Tex. Crim. App. 1996), and all other cases to the contrary. Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). Appellant would submit that a close review of the record in this case shows that there was no evidence or clearly legally insufficient evidence to prove beyond a reasonable doubt that Appellant intentionally entered Mr. Flowers building with intent to commit theft. Based upon the above, Appellant would assert that the ends of justice warrant a reversal and dismissal of this charge. POINT OF ERROR II. APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. (R.R. VOL. 3, P. 117, 123; VOL. 5, SX 32). Appellant asserts that he received ineffective assistance of counsel because his trial counsel failed to object to the admission, through audio and videotape, of extraneous offenses and prior convictions of Appellant at the guilt or innocence phase of the trial, since Appellant did not testify at trial and such extraneous matters would not have been otherwise admissible. Statement of Pertinent Facts, Argument and Authorities: Appellant was entitled to effective assistance of counsel as a matter of federal constitutional law. U.S. CONST. amend. VI & XIV; Strickland v. Washington, 466 U.S. 668 (1984), and state constitutional law TEX. CONST. art. I 10, Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). The test to be applied in determining ineffectiveness 13

21 must be whether counsel so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result. Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986) (quoting Strickland, 466 U.S. 668 at 672). In order to determine whether an Appellant s trial counsel rendered ineffective assistance at trial, a reviewing court must first determine whether an Appellant has shown that counsel s representations fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel s errors. Wiggons v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). A reviewing court must indulge a strong presumption that counsel s conduct fell within the wide range of reasonable professional assistance; and Appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). These standards apply to allegations of ineffectiveness at both the guilt/innocence and the punishment phases of a trial. Hernandez, at 988 S.W.2d at 772. As stated above, there are two steps that are required to show a counsel s assistance is so defective as to require reversal of conviction. Strickland v. Washington, 466 U.S. at 687. First, the defendant must show the counsel s performance was deficient. Id. This requires a showing that counsel made errors so serious that counsel was not functioning as 14

22 the counsel guaranteed a defendant by the Sixth Amendment. Second, a defendant must show that the deficient performance prejudiced the defense. Id. This requires a showing that counsel s errors were so serious so as to deprive the defendant of a fair trial. When examining whether a counsel s assistance is effective, the reviewing court must examine whether counsel s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id at 686. Appellant contends his trial counsel was ineffective because he did not object, under Texas Rules of Evidence 404(b) or 403, nor obtaining a limiting instruction, under Texas Rules of Evidence or 105(a), to the admission of extrinsic bad acts or prior convictions. TEX. R. EVID. 105, 404, 403. The evidence of the extrinsic bad acts and prior convictions in question is contained in an audio portion of a videotaped recording of Appellant when he was interviewed at the police station on June 24, (R.R. Vol. 3, P. 123). The trial court admitted this testimony into evidence at the State s request, without any objection from the Appellant s trial counsel. (R.R. Vol. 3, P. 117). During the recording the detective refers quite often to Appellant s criminal past and specifically states this has happened before. (R.R. Vol. 5, SX 32). Appellant even concedes he has prior convictions for several theft related offenses included robbery. (R.R. Vol. 5, SX 32). st In Hutchinson v. State, 663 S.W.2d 610 (Tex. App. Houston [1 Dist.] 1983, pet ref d), the court held that counsel s not taking steps to exclude extraneous offenses is ineffective assistance of counsel. While recognizing that not objecting to every instance of 15

23 improper evidence or procedural mistake does not necessarily constitute ineffective assistance of counsel, the Court acknowledged several cases in which trial counsel s failure to object to inadmissible extraneous offenses sufficiently constituted ineffective assistance. Hutchinson, 663 S.W.2d at 614. In the instant case, trial counsel failed to effectively assist Appellant in the case brought against him for burglary. There is plain error, that is, an error apparent on the face of the trial record and that error clearly had an adverse impact upon the substantial rights of Appellant. Not only did his trial counsel not object to the admission of the audio portion of th his statement given to Detective Emmons on June 24, but trial counsel also failed to request that the court reporter transcribe the text of the audio played at trial to preserve the audio portion for review upon appeal. (The Uniform Manual for Texas Court Reporters, paragraph 16.16, directs court reporters to transcribes the text of audio and video recordings unless the trial court orders that no recording shall be made). The ineffectiveness of counsel resulted in Appellant not receiving a fair trial. Appellant was clearly prejudiced by the admission of the extraneous offenses through introduction of the audio portion of the videotaped recording. Although a missed objection here or there may not be ineffective assistance of counsel, the examination of the record in this case reveals, based on the totality of the circumstances, ineffective assistance of counsel exists. Certainly, in this case the only thing presented to the jury that might effectively support a finding of guilt would be the introduction of extraneous offenses allowing the jury 16

24 to base its finding upon the inappropriate consideration of his prior criminal history. There was no affirmative link between Appellant and this burglary other than his explained possession of some of the stolen property. When Appellee failed to introduce any evidence that challenged Appellant s reasonable explanation for being in possession of property found, the only evidence left to support the jury s verdict of guilt was the unchallenged introduction of Appellant s prior criminal history. In the interest of justice, this Court must hold that Appellant did not receive effective assistance of counsel because there is simply no reasonable explanation to support the introduction of the references to extraneous offenses and prior convictions found in the audio portion of the videotaped interview of Appellant. (R.R. Vol. 5, SX 32). Every Defendant is entitled to a trial at which his interests are vigorously and conscientiously advocated by an able lawyer. Strickland v. Washington, 466 U.S. at 687. Here, the record is blatant and there is no possible trial strategy that could explain counsel s conduct in failing to object to the admission of extraneous offenses and prior convictions, his failure to request that the audio portion of the videotaped be transcribed, and his failure to request that the jury disregard the audio portion concerning such extraneous offenses. If trial counsel had simply done so, there likely would not have been a finding of guilt in this case. Trial counsel s conduct so undermined the proper functioning of the adversarial process as to deprive Appellant of a just result. 17

25 CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Honorable Court reverse the judgement and sentence of the Trial Court below and order the cause dismissed. Respectfully submitted, MUNSON, MUNSON, CARDWELL & TILLETT Post Office Box South Travis Street Sherman, Texas Telephone: (903) Facsimile: (903) By: Garland D. Cardwell State Bar Number COURT APPOINTED ATTORNEY FOR GEORGE WILLIS LAWRENCE CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Appellant s Brief has been sent via and hand delivery to the Honorable Karla Hackett, Assistant District Attorney, Grayson County Justice Center, 200 South Crockett Street, Sherman, Texas 75090, on the day of December, Garland D. Cardwell 18