Piland, James Earl v. State

Cause No. 076-tS IN THE COURT OF C&IMDM&L APPEALS ORIGINAL OF TEXAS lm~W~WWW JAMES EARL PILAND § Petitioner § IN THE 4th vs. § JUDICIAL DISTRICT COURT THE STATE OF TEKAS OF RUSK COUMY, TEXAS Respondent ECEIVED IN OF CRIMINAL AF"" FILED IN COURT OF CRIMINAL APPEALS MAR 182015 NAR 20 2015 Abel Acosta, Clerk VEEFEIW FOR DISCRETIOMARY REVIEW James Earl Piland #1919190 Alfred Stringfellow Unit 1200 F.M. 655 Rosharon, Texas 77583 ORAL ARGUMENT WAIVED IDENTITY OF PARTIES TRIAL JUDGE PRESIDING The Honorable Judge Gossett Courthouse, 115 Main St., Rocn? 303 Henderson, Texas 75652 Telephone #{903)657-0358 APPELLATE The Honorable Justice Carter The Honorable Justice Moseley, J.J Chief Justice C.J. Moriss Sixth Court of Appeals Bi-State Justice B.ldg0 100 K. State Line Ave., Ho 20 Texar&ana, Texas 75501-5666 PETITIOKER TRIAL DEFEASE ATTORNEY Allison Biggs, Atty-at-Law 300 w. Main St. Henderson, Texas 75652 Telephone #(903)657-8195 DIRECT APPEAL ATTORNEY T.W. Davidson, Atty-at-Law 329 S. Fannin Avenue Tyler, Texas 75702 Telephone #(903)535-9600 RESPONDENT PROSECUTOR AND APPELLATE COUNSEL Richard Kennedy, Atty-at-Law Sack Wavrusa, Atty-at-Law 115 N. Main St., Room 302 Henderson, TeKas 75652-3147 Telephone #(903)657-2265 .. 'TABLE OF CONTENTS. PAGE # IDEOTITY OF PARTIES*............ ...., i TABLE OF CONTENTS.. ii-iii INDEX OF AUTHORmES......^...,......... ».. STATEMEK'T REGARDING ORAL ARGUMENT...... I. STATEMENT OF THE CASE.... .. I 1-3 II. STATEMENT OF PROCEDURAL HISTORY.....*......* 3-4 III. GROUNDS FOR REVIEW......................... 4 1. Judicial Misconduct - Was evidence factually and legal ; ally sufficient to support the conviction? 2. Legal and Factual.Insufficiency of Evidence - Is the indictment so flawed that the jury convicted the Defendant of the wrong offense under the Texas Penal Codes? 3. Void Judgment - Did the trlial judge atjuse his discre tion in his failure to allow Defense Attorney to pro perly prepare for trial - denying the Petitioner a fair trial with effective counsel? 1 4. Ineffective Assistance of Counsel - Was defense coun sel ineffective for* failure to file a Motion for Jury , InstJtucticsn on a Lesser-Included offense? 5. Ineffective Assistance of Counsel r was defense coun sel ineffective for her failure to investigate and bring to trial the Petitioner's version of the facts? 6. Ineffective Assistance of Counsel - was defense coun sel ineffective when she admitted she was ineffective at trial due to trial judges actions? 7. Pzosecutorial Misconduct - Prosecutor failed to give Defense Counsel full notice of enhancement of charges until a half hour prior to Voir Dire? ii TMBLE OF CONTENTS PAGE g IV. ARfeXBter "AND ALACRITIES, 5-23 PRAYER FOR RELIEF... . . . . . . . . . . . . 23-24 VERIFICATION *....... .... 24 •;>- • •• - ••-.•., •• • < '..-•• CERTIFICATE OF SERVICE. .•..,._...' .* 25 APPENDIX A , ' ' ...,., A. • ..'....„ <• Opinion of the Sixtii Court of Appeals at Texarkana 3.11 FEBERRL STATOTES IM3EX OF Al^ORTTTES PAGE # E?ule.s of Criminal Procedure,.' Rule 60(b) 11 28 U.S.C.,§n46.....v*.......................... 24 SUPREME COURT REPORTER Berger v. U.S., 55 stct. 629 (T985)..;..........„.....I........ 23 Cronic v. U.S., 104 S.Ct. 2039 (1984)......i................... 12 Cuyler v. Sullivan, 100 S.Ct. >716 (1978),..................... 20 Haines v. Kerner, 92 S.Ct. 594 (-1972) ..*.... 5 Hughes v. Rcwe, 101 S.Ct„ 173 (1988)........................... 5 In Re Winship, 99 S.Ct. 1073 (1978)............................ 22 Jackson v. Virginia, 99 S.Ct. 2781 (1978)............ 7,22 Jchnscn v. LanJo, 120 S.Ct. 522 (1999)........ 17 Liparota v. U.S., 105 S.Ct. 2084. (1985) .' 22 Maxwell v. Sheppard, 86 S.Ct. 1507 (19*66) 11 Namet v. U.S., 83 S.Ct. 1151 (1963).........*.... 21 Roapilla v. Beazd, 125 S.Ct. 2456 (2005) , 19 Skinner v. State, 118 S.Ct. 1526 (1998) 15 Snyder v. Ccnrnoiwealth of Mass., 54 S.Ct. 330 (1934)........... 11 Strickland v. Washington, 104 S.Ct. 2052 (1984).. 12,17,19,20 MdJEkAL REPORTER Johnson v. Lanb, 179 F.3d 352 ( .03x1999) 17 Rogers v. Israel, 746F.2d«1288 (___ Cir 1984). 19 Romnel v. Estelle, 590 F.2d 103 (5th Cir 1979). 17 Washington v. Strickland, 693 F.2d 1243 (5th Cir 1982) 16 Wiggins v. Procunier, 753 F.2d 1318 (5th Cir 1985). * 5 fflSS&S STATUTES Texas Penal Code § 4.31(c). 14 Texas Penal Code § 9.31(c)(l)(2)...... ... 6,8 Texas Penal Code § 22.01 5,23 Texas Penal Code § 22.01(b)(1)....... 5 Texas Penal Code § 38.03(a).... 8 Texas Rules Of .Appellate Procedure, Rule 66.3 23 Texas Rules Of Appeallate Procedure, Rule 63.1 1 IV SOimigESTE^.'REPORTER , 5BBEB OF AttTHORITIES PAGE # Aguilar y. State, 682 S.W.2tf 556 (Tx.Cr.App. 1985).... 13 Barbernell Vi State, 257 S.W.3d'248-(Tx.App. 2008)............ 22 Bell v. State,, 693 S.W.2d 434 (Tx.Cr.App. 1985) 14 Bermudez v. State, ,§33, S.W.2d 805 (Tx.Cr.App. 1976) 22 Eignall v. State, S87' S.W. 2d 21 (Tx.Cr*. App. 1984) .;..... 3,14 Emery'v. State, 881 S.W.2<5 702 (Tx.Cr.App-. 1994)i;.;-....'.'.'•.'-...• 7 Ex Parte Barfield,' 697 S.W.2d «307 (Tx.Cr.App. 1985)..........•-. 7 Ex Parte Harris, 596 S.W.2d 293 (Tx.Cr.App. 1980)............. 12 ExParte Seatch,'5e0S.W.2d. 593' (Tx.Cr.App. 1979) 22 Ex Parte Welbom, 785 S.W.2d 391 (Tx.Cr.App. 1990)............ 19 Haitptoh v. State, 66 S.W.3d 430 (Tx.App.-Houston [1st Distil 2001) 10 Jiminez v.' State, 953 S.W.-2d 293' (Tx.App.-Austin 1997)........ 10,11,15,20 Jones v. State, 586 S.W.2d 542 (TktCr.App.. 1979).......... *......... 13 Jones v. State, 984 S.W.2d 254 (Tx.Cr.App. 1998).............. 9,14 Kerns v. State, 550 S.W.2G 91 (Tx.Cr.App. 1977) 23 Lofton v. State, 6" S.W.3d 796 (Tx.Cr.App. 2001) 9,10,11,13,14, 15,20 Lofton v. State, 45 S.W.3d 649 (Tx.Cr.App^ 2001)...... 9,10,14 Kathis v. State, 67 S.W.3d 918 (Tx.Cr.App. 2002) 10,13• Mitchell v. State, 807 S.W.2d 740 (Tx.Cr.App. 1991) , 10,15 Nethery v. State, 692 S.W.2d 686 (Tx.Cr.App. 1985) 9 Ortiz y. Jones, 917 S.w;2d 770 (Tx.Cr.App. 1996) 7 Preston v. State, 700 S ,W.2d 227 (Tx.Cr.App. 1985) 13 PrudhcfflG v. State, 989 S.W.2d 852 (Tx.App.-Kcustcn [14th Diet] 1999) ...........* .i.v........;.................... 22 Reed v. State, 703 S.W.2d 380 (Tx.Cr.App. 1986).. 9 Rickene v. State, 165 'S.K.33 675 (Tx.Cr.App. 2005) 13 Rousseau v. State, 855 S.W.2d 666 (Tx.Cr.App. 1993)..... 13,14 Royster v. State, 622 S.W.2d 442 (Tx.Cr.App. 1981)............ 13 Ruth v. State, 552 S.W.2d 517 (Tx.Cr.App. 1975) 23 Saunders v. State, 91.3 S.W.2d 564 (Tx.App.-Corpus Christi 1994) 10,11,15,20 Skinner v. State, 956 S.W.2d 532 (Tx.Cr.App. 1997)............ 15 Smith v. State, 676 S.W.2d 584 (Tx.Cr.App. 1984).'............. 9 Sutton v. State, 548 S.W.2d 697 (Tx.Cr.App. 1977). 13 Cause No. IN THE COURT' OF CRIMINAL APPEALS OF TEXAS JAMES EARL PILAND § Petitioner , i IN THE 4th VS. =••'.:§ JUDICIAL DISTRICT COURT THE STATE OF TEXAS , .OF RUSK COUNTY, TEXAS Respondent § PETITION Km DISCRETIONARY REVIEW TO THE HONORABLE JUDGE(s) OF SAID COURT: COMES NOW, James Earl Piland, Petitioner, pro-se in the above styled and raadbered cause, and respectfully files this Petition for Discretionary Review pursuant to Rule 68.1, T.R.A.P. The Petitioner would show the Honorable Court the following: t* STATEMENT OF THE CASE On the evening of 21 April, 2003, the Petitioner and his wife discovered that their son and his friend had been stealing money from them out of their bedroom. So to curtail any further thefts, the Petitioner woke his son, Tyler, to help him put a door on his bedroom. During this time, a heated argument began, leading to the Petitioner telling his wife to call the police. j In the meantime the Petitioner went into a nearby woods in order to remove himself from further altercations, and to calm down. It had already grown dark outside, end the Petitioner was barefoot. After i a short time the Petitioner heard several voices calling his name. He heard a noise and a bright light was shined into his face, blinding him. The Peti- r tioner believed it was his son and Wesley Watkin, his son's friend. He turned -iiv. to walk further into the woods, but stepped on something sharp, and fell down. The bright light was again shined into the Petitioner's eyes, and a voice ordered him to "get up and come over here." The Petitioner stood up and tried to see who it was, because there were several people calling him. The Petitioner's hands were in front of his eyes, trying to block the light. He was told to put his hands down, and when he did, he was hit with either a gun or flashlight. These were the only things in the person's hands that had hit him. At the same time, someone else began spraying something in the Petitioner's face and eyes. The Petitioner's vision went black, and he fell against his boat. As the Petitioner walked towards his house, the officer continued hitting him in the face, while the other officer kept spray ing mace everywhere. The Petitioner's son saw the officer strike the Peti tioner with his gun or flashlight and jumped on his back. The Petitioner ran into his house for safety, and to clean mace out of his eyes and mouth. E.M.S. had to be called, as the officer had sprayed the Petitioner's 11 year old daughter in the face, and needed her eyes flushed out. At no time were handcuffs put on Petitioner nor did the officers announce who they were. Two other officers were called in to arrest Petitioner. Officer Overtop testified that Petitioner offered no resistance when Petitioner was hand cuffed. The other officer from another city, took me out of the house, then yanked the cuffs up behind Petitioner's back, forcing Petitioner to bend over at the waist, hurting Petitioner's wrists, hands, and shoulders. This also was recorded on the 2nd video, taut was not shown to the jury. Officer Loden claimed I rushed at him out of the woods, but changed his testimony when cross-examined to "a fast pace." He would also commit perjury* i stating he never struck the Petitioner at all. Then later admit stricking the Petitioner on the side of the face "3 or 4 tiroes." (R.R. 4 at 151,153). -2-Note, testimony from eyewitnesses show he ailsovfstruck the Petitioner with an object between his eyes Loden then wrote up multiple charges against the Petitioner in attempts to cover his felonious assault on the Petitioner that Loden knew was witnessed by others. The Petitioner was then taken to jail and charged with "assault against a public servants" During pre-trial hearing the trial judge asked the defense attorney if she was prepared to go to trial. She stated "no" because she and the prosecutor were working on a plea deal due to the multiple charges. But the judge ignored her and set the case for trial the next day, despite their being multiple other cases on the Docket before the Petitioner's case. The Petitioner was tried and convicted by a jury. Punishment was assessed at sixteen (16) years confinement in the TDCJ-CID. A Motion For Appeal was filed at trial. On 17 December, 2014, the Sixth Court, of Appeals of Texas at Texarkana affirmed the conviction. On 1/22/2015 the Texas Court of Criminal Appelas granted the Petitioner's pro-se Motion For Extension of Time to file Motion for Petition For Discretionary Review. The time extension was until March 17, 2015. This timely filed Petition For Discretionary Review follows. MO ORAL ARGDMERT IS REQUESTED U. STATEMENT OF PROCEDURAL MSTORYo 1. The Petitioner appeared before t!he Fourth Judicial District Court of Rusk County, Texas, on the charge of assault of a public servant on 2-18-2014. The jury found the Petitioner guilty, and assessed punishment at (16) sixteen years confinement in the Texas Department of Criminal Justice-Correctionar' Institutional Division. 2. A Motion for Appeal was requested at trial. Defense Counsel filed a -3--Direct Appeal in the 6th Appellate District Court of Appeals of Texas at Texarkana. The Appellate Court affirmed the Petitioner's sentence on 17 December, 2014. No Motion for Rehearing <eas filed. 3. The Petitioner filed a Motion for Extension of Time to file Petition for Discretionary Review. This was granted on 1/22/2015. This timely Petitioner's Petition For Discretionary Review follows. HI. GROUNDS FOR REVIEW ISSUE 1 -Was the evidence factually and legally sufficient to support the conviction. ,-...•.. ISSUE 2 - Is the indictment so flawed that the jury convicted the Defendant of the wrong offense under the Texas Penal Codes? (R.R. A, at 163). ISSUE 3 - Did the trial judge abuse his discretion in his failure to allow Defense Attorney to properly prepare for trial - denying the Peti tioner a fair trial with effective counsel? ISSUE 4 - Was defense counsel ineffective for failure to file a Motion for Jury Instruction on a Lesser-Included Offense? ISSUE 5 - Was defense counsel ineffective for her failure to investigate and bring to trial the Petitioner's version of the facts? (See Brief for Appellant, pg. 12-14 Direct Appeal) ISSUE 6 - Was defense counsel ineffective when she admitted she was ineffective at trial due to trial judge's actions? (See Brief for Appellant, pg. 12-14 (Direct Appeal)) ISSUE 7 - Prosecutorial misconduct - Prosecutor failed to give Defense Counsel full notice of enhancement of charge until a half hour prior to Voir Dire. Then it was faxed to her office, not given at trial. Was this prosecutor misconduct? JSOTE: The Petitioner is not a licensed attorney and has no legal training -4-at all. The Petitioner therefore, prays this Honorable Court not hold him to the same stringent standards as a licensed, attorney pursuant to Wiggins v. Proccnier, 753 F.2d 1318 (5th Cir. 1985); Hughes v. Bewa, 101 S.Ct. 173 (1988); Haines v. Sterner, 92 S.Ct. 594 (1972). NOTE: The Petitioner does not have access to the Recorder's Record,:and has had to rely on the Briefs from Appellant Counsel to refer to page numbers in record. . TV. ARGUMENTS AtP AUTHORITIES ISSUE 1: Was the evidence factually and legally sufficient to support the conviction? In the case at bar, the charge instructs the jury to determine guilt based on whether the Petitioner "did...cause bodily injury to Erad Loden, by striking the said Brad Loden with the .Defendant's fists while the said Brad Loden was trying to arrest the defendant, and the said Brad Loden was then and there a public servant, to wit: a police officer...acting,in lawful discharge of his official duty, and the defendant knew that the said. Brad Loden was a public servant because the said Brad Loden was, wearing a distinctive uniform and displaying his badge..." First, note the charge read to the jury does not conform to Texas Penal Code § 22.01(a), 22.01(b)(1), in that it has no reference to "intentionally, knowingly, or recklessly" listed in the charge. The Court will note the incident took place in the dark. Loden nor Officer wllson identified themselves, nor could ANY distinctive uniform or. badge be seen as their uniforms were dark blue. Especially with a bright light shined into the Petitioner's face, nor with the spraying of mace into his eyes by officer Wilson. , Officer Loden states the Petitioner swung with his fist hitting his arm. -5-. The Honorable Court must admit this act likely occurred NOT to assault Officer loden, but to get the light out of his blinded eyes or to stop the spraying of mace in thorn. (R.R; 4, pg. 19, 35, 38, 64). The Petitioner supposedly fled, and when someone caught hold.of his ^lirt, he knocked the arm of his, captor and fled into .: his house. (R.R. 4,. pg. 19-21, 35, 68). Others, saw Loden hitting Petitioner at the time. Witnesses testified they saw Officer Lcden hit the Petitioner between the eyes with his gun or flashlight. Officer Lcden denies this. But then, he also denied hitting the Petitioner at all, (R.R. at 151); but. then admits hitting him "3. or 4. times on the side, of the face." Yet the Petitioner had an injury between his eyes on the upper part of his nose - the place where, the witnesses testified they. saw. him hit the Petitioner with an object in his hand. So the question before this Honorable Court is, seeing the witnesses did not see the "3 or 4 blows to the Peti-? tioner's face, was, by Office Loden's own testimony, the Petitioner beat on by Loden in the woods as alleged by the Petitioner? Pursuant to Texas Penal Cede § 9.31(c) (Vernon 2003), "(c) The use of force to resist an arrest or search is justified: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other persons) use or attempted use of greater force than necessary." It' should also be noted, when arrested by the two other officer's, the Petitioner had no handcuffs on either wrist, as testified to by Officer Wilson and Lcden. (R.R. 4 at 19). But defense counsel failed to call either of those officers to testify on this crucial issue. A video was taken of this -oarrest, but Was not shown. The Petitioner states he did not know police were there until he'd been sprayed in the eyes with mace. Then he swung his arm to stop the pain and ran to his house to rinse out his eyes and get away from whoever had hurt him. "A critical inquiry is whether, after so viewing the evidence, any rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt." Emery v. State, 881 S.W.2d 702, 705 (Tx.Cr.App. 1994). But there is a problem here because the Jury Charge was insufficient. First, the "mens rea" is missing which,is in feet ah essential element of the charge. "In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier-df-fact could have found the essential elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 99 S.Ct. 2781(1979). "Where appellate attacks legal sufficiency of the evidence, appellate Court must view only that evidence vfoich supports the verdict, however, where appellant's challenge is to factual sufficiency of evidence appellate court must consider all evidence. Court of Appeals must weigh and eo&pare all evidence in the record." Ortiz v. Jones, 917 S.W.2d 770 (Tx.Cr.App. 1956). "Only exception to sufficiency of evidence is if you show there was no evidence on crucial element of the offense with which you were convicted." Ea Parte Barfieia, 697 S.W.2d 307 (Tx.Cr.App. 1985). No "mens rea" was ever shown in the trial. Due process was denied to the Petitioner, and as such, he is entitled to a reversal of his conviction, and be afforded a new trial. ISSUE 2. Is the indictment so flawed that the jury convicted the Defendant on the wrong? offense under the Texas Penal Codes? ^7- During Officer Loden's testimony, ;he states the Petitioner resisted when the first handcuff was locked on his wrist. He then testified he told the Petitioner if he continued struggling he would spray him with C.J. (roace). Ee stated the Petitioner was net under arrest, so why come with a drawn weapon, handcuff the Petitioner, or even use mace en him? He got struck on his arm after macing the Petitioner. Probable reason was to get released so Petitioner could rinse the.mace from his burning eyes. So, at best, the only true charge that could possibly be put upon the Petitioner was "resisting arrest", and not assaults. Otherwise, what cause did Officer Loden have for adraittingly striking the Petitioner "3 or 4 times" in the face. In all actuallity, the Petitioner would' have been justified under § 9.31(c) Tx.Pen.Code in striking back in self defense. Especially when witnesses saw Officer Lcden strike him in the face, with an object in his hand. The only objects being his flash--light and gun, as was witnessed by the witnesses. Also by Loden's own testimoney. (R.R. 4 at 151). If an arrest1 was being executed, then a charge of resisting arrest under Texas Penal Code § 38.03(a) would be appropriate. "A person resists arrest by intentionally preventing or obstruct[ing] a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from affecting an arrest, search, or transportation of an actor by using force against the peace officer or another." But, in the case at bar, no Motion was filed by defense counsel to have the 'Court instruct the jury on the lesser-included offense of resisting ar rest. In order tc be entitled to an instruction en the lesser-included offense of resisting arrest, there must be some evidence to permit a jury rationally tc find that appellant is guilty only of the lesser, and not of the greater. -8-Therefore, in the instant case, there must be some evidence that Appellant intentionally prevented or obstructed his arrest by using force against offi cer [Lcden], •and that Appellant did not 'intentionally, knowingly, or reck lessly cause bodily injury to [Loden]." Lofton v. State, 45 S.W.3d 649 (Tx. CriiiwApp. 2001). "Court of Appeals analy2es lesser-included offenses by determining whether there is any evidence in the record>fran any source to indicate that if defen dant was, guilty, he was guilty only of the lesser offense." Lofton v. State, Id., 6 S.W.3d at 797. "Anything more than a scintilla of evidence is suffi cient to entitled a•defendant'to a lesser charge." Lofton, supra, at 799; Bignall v. State, 887 S.W.2d 21, 23 (Tx.Crim.App. 1994). "Whether there is evidence within or without the defendant's testimony, which raises the lesser offense controls the issue of whether an instruction en the lesser included offense should be given." Jones v. State, 984 S.W.2d 254, 257 (Tx. Crim-App. 1998). "Although it is clear that the issue of self-defense may be raised by evidence'.other than the defendant's testimony, (See Smith v. State, 676 S.W.2d 584 (Tx.Crim.App. 1984), it is equally clear that some evidence must show that defendant reasonably believed that force was necessary to protect him self against unlawful force-of'another." Nethery v. State, 692 S.W.2d 686,704 (Tx.Crim.App. 1985); Seed v. Stat®, 703 S.W.2d 380, 382 (Tx.Crim.App. _). That evidence was provided by witnesses seeing Lcden strike an unarmed Petitioner between the eyes with an object, AND by loden's own testimony of spraying the Petitioner with gas and further testimony of him striking the Petitioner 3 or 4 times in the face. "For a charge on a lesser-included offense to be given, there must be some evidence from which a jury could rationally acquit the defendant of -9-the lesser included offense; the evidence must establish the lesser-included offense as a valid alternative to the charged offense." Mathis v. State, 67 S.W.3d 918, 920 (Tx.Crim.App. 2002). "Either the defendant cr the State is entitled to an instruction on every issue raised by the evidence, whether produced by the State or the defendant, and whether it is weak, strong, impeached, or contradicted; it is then the jury's duty to determine whether the evidence is credible arx3 supports the lesser-included,offense." Hampton v. State, 66 S.W.3d 430 (Tx.App.-Houston [1st Dist] 2001). "The Court of Appeals held that because the evidence in this case was subject to two possible interpretations - one interpretation supporting a conviction of assault and the other for resisting' arrest - then appellant was entitled to an instruction on'the lesser-included offense." Lofton, supra, 45 S.W.Sd at 653. "Reversal is required if the error resulted in some harm to the accused, •some' meaning" 'any'*.' Jimlnaz v. State, 953 S.W.2d 293, 299 (Tx.App.-Austin 1997, pet. ref'd). "If the absence of the lesser-included offense instruction left the jury only with the options either to convict the defendant of the charged offense or tc acquit him ' fas the case at bar], a finding of harm is essentially automatic because the jury was denied the opportunity to con vict the defendant of the lesser offense." Iofton, 6 S.W.Sd at 800; see also: Hi&chell v. State, 807 S.W.2d 740, 742 (Tx.Crim.App. 1991); Jiminez, supra, at 299 (citing Saunder v. State, 913 S.W.2d 564, 571 (Tx.App.-Corpus Christi, 1994). "Harm is presumed because of the possibility that the jury, believing the defendant to have coffaritted seme crime but given the option only to convict him of the greater offense, may have chcsen to find him guilty of that, greater offense, rather than tc acquit him altogether, even though it had a reasonable doubt that he really committed the greater offense." -10-See Saunders, supra, at 571; Jindnez, supra, at 300. "we cannot say that the district court's refusal to instruct the jury on the lesser-included offense of resisting arrest did not result in some harm to appellant." Lofton, 6 S.W.3d at 800. r Failure to properly instruct the jury on "mens rea" and present a proper indictment, including the lesser-included offense of resisting arrest violated .due process of law. A reversal and a new trial is warranted due to a VOID indictment. (Rule 60(b), F.R.A.P.) ISSUE 3: Did the Trial Judge abuse his discretion in his failure to allow both the prosecutor and defense counsel to properly prepare for trial, thus denying the Petitioner a fair trial with effective Counsel? "Broadly stated, the accused is entitled to a trial on the facts, in accor dance with the law and the evidence in the case, with an opportunity to defend before an unbiased tribunal, and free from any extraneous influence that might be to his or her prejudice." Maxwell v. Sheppard, 86 S.Ct. 1507 (1966). "State is free to regulate court procedure in accordance with its own conception of policy and fairness without infringing on 14th Amendment, unless some fundamental principle of justice is violated." Snyder v. Commonwealth of Massachusetts, 54 S.Ct. 330 (1934). In the instant case at bar, the Trial Judge asked the Prosecutor and Defense Counsel if they were prepared to go to trial. The Prosecutor stated they were ready. The Defense Counsel stated they were not ready, as the prosecutor and she had been working out a plea deal, due to the multiple other charges connected with this case. (Officer Loden had also brought charges of public intoxication (Petitioner was on his own property), resisting arrest (lesser-included offense), threat of retaliation, aggravated assault, and assault -11- of public servant (for supposedly tearing his shirt).(BOTE: If Petitioner tore his shirt, why was it not testified to at trial, or shown as evidence?)). The Trial Judge then ordered the case set for Docket the very next day. By his actions, the Petitioner went to trial with an attorney who admittedly was not prepared to defend her client. Thus> the Petitioner was denied effective assitance at trial by the Trial Judge, which denied him due process and equal protection. "That " a ' person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command." Strickland v. Washing ton, 104 S.Ct. 2052 (1984). "Actual, or constructive denial of assistance of counsel altogether is legally presumed to result in prejudid^;."4? Id., at 2053. "Right to effective assistance of counsel is recognized not fee it& own sake, but because of the effect it has on the ability to the accused to receiv a fair trial." U.S.C.A. 6; Creole v. U.S., 104 S.Ct. 2039 (1984). "Mere pro Forma appearance of counsel does not amount to the assistance of counsel and due process of law guaranteed by federal constitution and it does not afford the right of being heard by...counsel guaranteed by state constitution. Such unconstitutional provisions require that counsel render reasonably effective assistance." Ex Parte Harris, 596 S.W.2d 293 (Tx.Crim. App. 1980). Thus, by the Trial Judge's refusal to allow defense counsel more time to prepare her client's case for trial, Petitioner was denied effective assis tance of counsel. Mflffl*' In the Appellate Brief during the direct appeal, the defense counsel wholeheartedly admits she was ineffective. The conviction should be reversed, and the Petitioner be afforded a new trial in a different court, as the trial judge has shown bias against the -12-Petitioner or his attorney by refusing a continuance, violating due process and effective assistance of counsel to the Petitioner. ISSUE 4: Was defense counsel ineffective in failing to file a Motion for Jury Instruction on Lesser-Included Offense of Resisting Arrest? "Under certain, limited circumstances, a criminal defendant will be en titled to a jury instruction on a lesser-included offense of the offense charged." Mathls v. State, supra, at 925 (Tx.Crim.App. 2002). "The applicable test is referred to as the Royster-Rousseau test, or some times, as the Royster-Aguilar test." (See Royster v. State, 622 , S.W*2d 442> 444 (Tx.Crim.App. 1981); Aquilar v. State, 682 S.W.2d 556, 558 (Tx.Crim. App. 1985); Rousseau v. State, 855 S.W.2d 666, 672 {Tx.Crlm.App* 1993). "The test has two steps: (1) first, determine whether the offense is a lesser-included offense of the offense charged; and (2) second, evaluate the evidence to determine whether there is some evidence that would permit a jury rationally to find the defendant is guilty only of the lesser offense." Mathls, supra, at 925; See also: Rickens v. State, 165 S.W.3d 675, 679 (Tx. CrinuApp. 2005). "Case law from the Court of Appeals indicates resisting arrest is a lesser-included offense of assault on a public servant." See: Preston v. State, 700 S.W.2d 227, 230 (Tx.Crim.App. 1985); Sutton v. State, 548 S.W.2d 697, 699 (Tx.Crim.App. 1977)(stating that "resisting arrest is a lesser-included offense of assault on a public servant."). Lofton v. State, 6 S.W.3d 796 (Tx.App.-Austin 1999). "...relevant test is whether the lesser offense could be pro ved by the same facts necessary to establish the offense charged*" Picken, . supra, at 679; Jones v. State, 586 S.W.2d 542, 545 (Tx.Crim.App. 1979). Now, the Officer, Loden, stated they were attempting to handcuff the Peti*» ticner. Another Officer, Wilson, sprayed Petitioner in the face with mace. -13-The Petitioner "fled" and he tried to grab the Petitioner by the back of his shirt when his arm was struck by the Petitioner. Pursuant to Tx.Pen. Code, § 4.31(c), the Petitioner was justified in his actions, as he was being maced, beaten, and felt threatened by the excessive force used against him. Is it not rather suprising after Loden had struck Petitioner "3 or 4 times on the side of the face" and between the eyes with an unknown object, that the Petitioner only struck Loden's arm? After all, Loden was assaulting the Petitioner, as Loden testified to (R.R. 4 at 151) and as other eyewitnesses testified to. "In order to be entitled to an instruction on the lesser offense of resis ting arrest, there must be some evidence to permit a jury rationally to find the appellant is guilty only of the lesser, and not of the greater. Therefore, in the instant case, there must be some evidence that appellant intentionally prevented or obstructed his arrest by using force against Officer [Loden], and the appellant did not 'intentionally, knowingly, or recklessly cause bodily injury to [Loden].'" Lofton, 45 S.W.3d 649. "Court of appeals analyzes lesser included offenses by determining whether there is any evidence in the record from any source to indicate that if defen dant was guilty, he was guilty only of the lesser offense," Lofton, 6 S.W.3d at 797. "Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge." Id., at 799; Biqnall, supra, at 23. "Whether there is evidence, with or without the defendant's testimony, which raises the lesser offense controls the issue of whether an instruction on the lesser included offense should be given." Jones, supra, at 257. "The evidence may be proffered by the State or the defense; the evidence may be strong or weak, unimpeached or contradicted."/ (See Rousseau, supra, at 672; Bell v. State, 693 S.W.2d 434, 442 (Tx.Crim.App. 1985). "So long as -14-there is some evidence which Is:'directly germane' to a lesser included offense for the fact finder to consider, then an instruction on the lesser included offense ie warranted." See; Skinner v. State, 956 S.W.2d 532, 543 (Tx.Crta. App. 1997); cert denied, 118 S.Ct. 1526 (1998). [R]eversa1 is required if the error resulted in some harm to the accused, •sob®' meaning 'any'." Jlminez, supra, at 299 (Tex.App.-Austin 199?, pet. ref*d). "If the absence ©f the lesser included offense instruction left the jury only with the options either to convict the defendant of the charged offense or to acquit him [as in the instant case at bar], a finding of harm i© essentially automatic because the jury was denied the opportunity to con vict the defendant of the lesser offense." Lofton, 6 S.W.3d at 800; see also: Mitchell, supra, at 742.(Tx.Crim.App. 1991); Jimlnes, supra, at 299 (ci ting Saunders v. State, 913 S.W.2d 564, 571 (Tx.App.-Corpus Christi 1994). "Harm is presumed because ©f the possibility that the jury, believing the defendant to have ccasmitted seme crime but given the option only to con vict him of the greater offense, may have chosen to find him guilty of that greater offense, rather than to acquit him altogether, even though it had a reasonable doubt that he really committed the greater offense." See: SuaajT-' decs, supra, at 571; Jiminez, supra, at 300. We cannot say that the district court's refusal to instruct the jury on the lesser included offense of resis ting arrest did not result in some harm to appellant." Lofton, 6 S.W.Sd 800 . The failure to give the jury a jury instruction on the lesser-included off#: ense, despite having all the essential elements that supported such an instruc tion was ineffectiveness of trial counsel for her failure t© investigate and question eyewitnesses. Likely this was caused by the Judged failure to postpone the trial for the trial counsel to make the required pre-trial investigation. -IS- As such, due process and effective assistance of counsel was denied by defense counsel and the trial judge, and a reversal of this conviction and anew trial is warranted in this case. ISSUE 5: Was Defense Counsel ineffective for her failure to investigate and bring to trial the Petitioner's version of the facts? (See Appel late Brief for Direct Appeal, pgs. 12-14). As can be seen by para. I Statement of the Case, the case the jury heard, and para. I are quite different. Yet witnesses that testified for the defense testified what is. shown in para. I. Yet defense counsel did not have the Petitioner testify, nor submit a Motion for Jury Instruction on the Lesser-Included Offense of Resisting Arrest. She failed to make an adequate inves tigation and believe her client's version Of the facts of the case, which was wholely supported by eyewitnesses. "Although the fate of a criminal defendant is determined at trial, the cause of that trial, the cause of that trial can be decisively affected by actions of defense counsel in preparing the case." Washington v. Strickland, 693 F.2d 1243 (5th Cir 1982). The Petitioner alleges failure to render an adequate investigation into the case, and to believe the Petitioner and eyewitness accounts of the facts of the case. This can be shown by the fact that even prior to trial a plea deal was being negotiated to settle other charges being filed by Officer Loden, the person who in fact committed aggravated assault on the Petitioner. Pictures and statements supported the Petitioner's version of the facts, yet not even a Motion for the jury instruction on the lesser offense was filed. "When a defendant alleges that his counsel's failure to investigate preven ted counsel from making an informed tactical choice, he must show that know- rl6-.ledge of the investigated evidence would have altered his counsel's decision, and that the basis underlying his counsel's tactical choice to pursue or forgo a particular course would have been invalidated, in order to satisfy prejudice prong of ineffective assistance of counsel claim." Johnson v. Lamb, 179 F.3d 352, cert.denied, 120 S.Ct. 522 (1999). As has been testified to at trial by Rebecca Piland, Wesley Watkins, and Tyler Chiasson, all the actions committed by the Petitioner were in fact "self-defense maneuvers" to protect himself from being beaten upon by Lcden. (R.R. 4 at. 92-94, 106, 120-122, 125, 129-133, 142-147) Had defense counsel investigated . into the Petitioner's version of the facts, she would have not only, filed for Instruction on Lesser-Included offense, but also sought crimi nal charges against Lcden for police brutality. Instead the defense counsel was plea bargaining with the prosecutor on dropping the other charges trumped up by Loden and Wilson in order to cover their felonious acts. "If there is only one plausible line of defense, the court concluded, counsel must conduct a 'reasonable substantial investigation* into that line of defense, since there can be no stratigic choice that renders such an inves tigation unnecessary. The same duty, exists if counsel relies at trial on only one line of defense, although others are available. It must include 'an independent examination of the facts, circumstances, pleadings, and laws involved.'" Strickland, supra, at 2061 (quoting Rommel v. Estelle, 590 F.2d. 103, 104 (5th Cir 1979). It should be noted by the Honorable Court that two incidents occurred just prior to the Voir Dire. First* by defense counsel's own admissions, "Jury selection in this case was on a Monday morning, 18 February, 2014." Attorney Biggs filed a Motion for continuance early that morning and argued it before Voir Dire began. Attorney Biggs informed the Court she was not rl7ready for trial at -that time. R.R. 3 at 7. She informed the Court that Appellant had been arrested the previous month for a new felony charge and that she believed the respective parties would be able to settle the cases after the new case was filed in. Id. She informed the Court that Asst. D.A. Wavrosa and she had spoken the previous Friday afternoon at about 3 p.m., and until that time, she had been unaware the State intended to take Mr. Piland's assault on public servant case to trial on Monday the 18th. Id. at 8w She argued that it would be efficiency and judicial economy (on the part of the. court) and in the best interest of Mr. Piland to wait on a possible trial in the assault on public servant case until the new (and other) cases was filed in. Id. She pointed out that several other attorneys (including the writer) had trial cases that were set before hers, and thus she was baffled as to why Appellant's case was going to trial this day when other, older1 cases were listed on the docket before Appellant's case. Id. The Court denied her Motion. Id. at 9." (Brief for Appellant for Direct Appeal, App. A, pgs. 6-7). The second issue was that just before Voir Dire the defense attorney was notified, when the prosecuting attorney asked the jury if any of them could not, in good conscience, sentence a person to twenty years in prison. Having been led to believe her client was facing a 3rd degree felony with no enhance ments, defense counsel objected to this question. Both attorneys were called to the bench, and in conference during Voir Dire the prosecuting attorney notified defense counsel of his intention to seek enhancement. He stated before the trial judge that a copy of the enhancement paragraph had been faxed to defense counsel's office at 8 a.m. that morning. Voir Dire began at 8:30 a.m. The trial judge allowed it. '< Thus, in all honesty, the Petitioner, states his defense counsel's ineffec- -18-tiveness was due to misrepresentations by the Asst. District Attorney, and the bias shown 'by the trial judge; Judge Cossett. In fact, the trial was so rushed that even the indictasnt before the Court was without 'mens rea" arid added last minute enhancements. (R.R. 4 at 164).. "Criminal defense counsel must have firm command of facts of case as well as governing law before he can render reasonably effective assistance of counsel." Ex Parte Welborn, 785 S.W.2d 391 (Tx.Crim.App. 1990). Defense Counsel had not even read the entire indictment to see if it met the irdnimum standards of the law. Thus/ she was ineffective for failure to object to the defective indictment even before this case went to trial. The ' State would have been forced to either dismiss the indictment and start over, or attempt to amend and interleniate the indictment, giving defense counsel added time to adjust to the added enhancement paragraph and investi gate further into the case. "It is the duty of the lawyer to conduct a prompt investigation • of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession-of the prosecution aixS .law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's desire to plead guilty." Rcaapdlla v. Beard, 125 S.Ct. 2456 (2005). "When determining whether defendant received effective assistance of counsel in violation of the 6th Amendment, benchmark must be whether counsel's conduct so undermined proper functioning of adversarial process that trial cannot be relied on as having produced a just result." Rogers v. Israel, 746 F.2d 1288 ( ,Cir 1984); Strickland, supra, at 2064. ISSUE 6; Was defense counsel ineffective when she, herself, admits she was ineffective at trial due to Trial Judge's actions? • -19- "First defendant must show that counsel's performance was deficient, re quiring showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed defendant by the Sixth Amendment,.." Id.> at 2052. , The Petitioner , has shown that defense counsel failed to even read the indictment against her client, which had failed to give mandatory "mans rea" in the charge brought against her client. Then she failed to Motion for Jury Instruction oil the Lesser-Included Offense of Resisting Arrest. The Jury would ,most probably had found the Petitioner guilty of only the lesser offense when they heard the testimony from defense witnesses. "...second, defendant must show that deficient performance prejudiced the ,defense by shewing the counsel•s errors were so serious as to deprive the defendant of a fair trial; a trial whose result is unreliable." Id. "Harm is presumed, because of the possibility that the jury, believing the defendant to have committed some crime but given the option only to convict him of the greater offense, may have chosen to find him guilty of that*greater offense, rather than to acquit him altogether, even though it had a reasonable doubt that he really c<»smitted the greater offense." See Saunders, supra, at 571' Jiminez, supra, at 300.. "We cannot say that the [defense attorney's failure to request the trial judge] to instruct on the lesser included offense of resisting arrest did not result in some harm to appellant." Lofton, 6 S.W. 3d at 800. "Counsel, however, can also deprive a defendant of the right to effec tive assistance of counsel simply by failing to render 'adequate legal assis tance'" Strickland, supra, at 2064; Cuylcr v. Sullivan, 100 S.Ct. at 1716, 1719. The Petitioner has met both prongs of the Strickland standard as set out -20-