Calamaco, Danny

PD-0552-15 June 12, 2015 NO. 24442-A

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

DANNY CALAMACO, PETITIONER

V.

THE STATE OF TEXAS, RESPONDENT

PETITION FOR DISCRETIONARY REVIEW NO. 11-13-00066-CR COURT OF APPEALS FOR THE 11TH DISTRICT OF TEXAS AT EASTLAND

On appeal from Cause Number 24442-A In the 42nd District Court of Taylor County, Texas Honorable John W. Weeks, Judge Presiding _______________________________________________________

Paul W. Hanneman James Eidson Attorney for Petitioner District Attorney Taylor County SBN: 08925500 300 Oak Street 1305 Lamar Street Abilene, Texas 79602 Sweetwater, Texas 79556 325-674-1261 325-235-4777 325-674-1306 - Fax 325-235-4777 – Fax pwhlawoffice@gmail.com

Lisa McMinn 11th Court of Appeals Clerk State Prosecuting Attorney Sherry Williamson P.O. Box 13046 P.O. Box 271 Austin, Texas 78711 Eastland, Texas 76448

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS

PAGE

INDEX OF AUTHORITIES ……………………………………………. 3 STATEMENT REGARDING ORAL ARGUMENT ………………….. 4 STATEMENT OF THE CASE ………………………………………… 4 STATEMENT OF PROCEDURAL HISTORY ………………………. 5 GROUNDS FOR REVIEW ……………………………………………… 5,6 STATEMENT OF FACTS ……………………………………………… 7 ARGUMENTS AND AUTHORITIES ………………………………. 9,14,16 PRAYER FOR RELIEF ………………………………………………… 23 CERTIFICATE OF SERVICE ...……………………………………….. 24 APPENDIX ……...……………………………………………………….. 26

INDEX OF AUTHORITIES

CASES Davis v. State of Alaska; 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (Feb. 27, 1974 Supreme Court of United States) ……...............................19 United States v. Gonzales-Lopez; 548 U.S. 140, 126 S. Ct. 2557, 165 L.Ed.2d 409 (June 26, 2006 Supreme Court of United States)…………... 22 Faretta v. State of California; 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (June 30, 1975)…………………………………………………… 9,10,12,14,20 Gobert v. Court of Criminal Appeals of Texas; 717 S.W.2d 21 (Tex.Crim.App. 1986)……………………………………………………… 20,21 Davis v. State of Texas; 228 S.W.3d 917 (Tex.Crim.App.2007)............... 22 Williams v. State of Texas; 252 S.W.3d 353 (Tex.Crim.App.2008)..10,14,22 Johnson v. United States; 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (May 12, 1997 Supreme Court of United State)………………………... 19,13 Cronic v. United States; 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (Supreme Court of the United States May 1984)……………………….…. 19 Medley v. The State of Texas; 47 S.W.3d 17 (Tex.App. – Amarillo 2000).19 Arizona v. Fulminante;499 U.S. 279, 111 S.Ct.1246, 113 L.Ed.2d 302.19,22 Adams v. United States ex rel. McCann; 317 U.S. at 279, 63 S.Ct., at 242.9 Powell v. State; 632 S.W.2d 354, 355 (Tex. Crim. App 1582) …….…. 10,20 Lewis v. State; 2014 WL 491746 (Tex. App. – Fort Worth Feb. 6, 2014) (mem. Op., not designated for publication), pet. granted, (Tex. Crim App. Sept. 17, 2014) (No. PD-0307-14)……………………………………..……. 16 Calamaco v. State, No. 11-13-00066-CR (Tex. App. Eastland 2015)…………………………………………………………. 5,6,8,13,16,18,21 Johnson v. Zerbst, 304 U.S. at 464-465. 58 S.Ct., at 1023……………..… 9 Vasquez v. Hillery, 474 U.S. 254 106 S.Ct. 617, 818 L.Ed.2d 598 (1986).19 Mckaskle v. Wiggins, 465 U.S. 168, 183-84, 104 S.Ct. 944, 953-54, 79 L.Ed.2d 122 (1984)………………………………………………………….... 19 Heredia v. State, 528 S.W.2d 847 (Tex. Crim. App. 1975)…………… 20,21 Sullivan v. Louisiana, 508 U.S. 275, 282…………………………………… 22

RULES AND STATUTORY PROVISIONS TEX.R.App.Pro.66, et seq. …………………………………………………... 4 TEX.CODE.CRIM.PROC.Art 1.051 ………………………………………… 4

STATEMENT REGARDING ORAL ARGUMENT

In the event this petition is granted, the Petitioner requests oral argument. Argument would assist the Court because resolution of the grounds for review depends upon a detailed exploration of the facts of the case. Further, oral argument would provide this Court with an opportunity to question the parties regarding their positions.

Appellant has raised important questions of first impression in this Court and believes that oral argument would help clarify the issues presented in his petition for discretionary review. Therefore, he respectfully requests oral argument.

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, DANNY CALAMACO, Appellant in this cause, by and through his attorney of record, Paul W. Hanneman, and, pursuant to the provisions of TEX.R.App.Pro.66, et seq., moves this Court to grant discretionary review, and in support will show as follows.

STATEMENT OF THE CASE

Appellant was indicted in Cause No. 24,442-A for Murder, with a deadly weapon allegation and enhanced in a second paragraph with three prior felony convictions (CR, Vol. 1, 7; 8). On January 24, 2013 the jury found Appellant guilty (CR, Vol. 1, p. 177) and the Court assessed punishment at Life confinement in the State penitentiary (CR Vol. 1, p 184; RR vol. 11, p. 9). Appellant gave timely notice of appeal on February 22, 2013 (CR Vol. 1, p. 194) and also filed a Motion for New Trial (CR Vol. 1, p. 189-193) which, after a hearing was overruled on April 05, 2013 (CR Vol. 1, p. 204; RR Vol. 12, p. 45).

STATEMENT OF PROCEDURAL HISTORY

The conviction was affirmed in an opinion designated for publication by the 11th District Court of Appeal. Calamaco v. State, No. 11-13-00066-CR (Tex. App. Eastland 2015), delivered April 09, 2015. Appellant requested an extension of time to file a PDR, which was granted. This petition is due on June 10, 2015, and therefore, it is timely filed.

GROUND FOR REVIEW ONE

The Court of Appeals erred when it found that Appellant was properly admonished regarding his waiver of counsel and granted Appellant’s waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v. State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 7.

GROUND FOR REVIEW TWO

The Court of Appeals erred when it found that Appellant entered a knowing, intelligent waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v. State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 7.

GROUND FOR REVIEW THREE

The Court of Appeals erred when, although it correctly found that the trial court erred by depriving Appellant of counsel during voir dire, it then incorrectly found the error to be non-structural error and further erred by applying a harm analysis to the error. RR Vol. 7, pp. 8-16, 60. Calamaco v. State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 9.

STATEMENT OF FACTS

Prior to Voir Dire in his trial on the charge of Murder in this cause, immediately after his plea of “Not Guilty” was entered, Appellant, who at the time was represented by court-appointed counsel, Monte Sherrod, requested that he be allowed to represent himself. (RR, Vol. 7, p. 8). The Trial Judge examined Appellant regarding his qualifications. The Court informed Appellant that if Appellant waived his right to counsel and represent himself instead, that Appellant could change his mind. The Court told Appellant “You understand that you can change your mind?” (RR, Vol. 7, p. 13). The trial court judge went further to say; “I mean, if you were to start to represent yourself you could say, well, this is going not like I thought it would. It’s harder than I thought it would be. I want to change my mind and tell the Judge and let Mr. Sherrod start representing me. You understand that?” (RR, Vol. 7, P. 13).

The trial court judge further admonished Appellant, before the waiver:

“Now listen, I told you you could change your mind. So

be sure and tell me. Don’t just sit there and suffer. It’s not

necessary. Okay? Because you’re going to be missing a

lot of things. And you’ve never done a voir dire and you

don’t even know what to say to them.” (RR, Vol. 7, p. 16)

The Trial Judge granted Appellant’s motion to let Appellant represent himself and brought the jury in. (RR, Vol. 7, p. 18). During his presentation of the defense’s portion of voir dire, Appellant did in fact change his mind and asked the Court to “remove my motion to represent myself and ask for Mr. Sherrod’s representation.” (RR, Vol. 7, p. 60). Appellant stated that he wanted his attorney to do the voir dire. (RR, Vol. 7, p. 60). The Trial Judge refused Appellant’s request, and did not let Mr. Sherrod start representing Appellant but instead required Appellant to complete voir dire before the Court would allow Appellant to have counsel represent him before the jury. Mr. Sherrod did not take part in voir dire due to the Trial Judge’s failure to rule consistently with the admonishment he gave Appellant except that he was present on “standby”.

GROUND FOR REVIEW ONE RESTATED

The Court of Appeals Erred when it found that Appellant was properly admonished regarding his waiver of counsel and granted Appellant’s waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v. State, No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 7.

ARGUMENT

Review of Ground For Review One is proper because the Court of Appeals decision has decided an important question of state and federal law that has not been, but should be settled by the Court of Criminal Appeals.

Review of Ground For Review One is proper because the Court of Appeals has decided an important question of state and federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals and the Supreme Court of the United States.

The Court of Appeals found that the trial court adequately admonished the Appellant regarding the possible consequences of the waver of counsel so that Appellant could enter a knowing and intelligent waiver. In Faretta v. California the U.S. Supreme Court ruled that to waive the right to counsel the accused must “knowingly and intelligently” forgo that right, citing, Johnson v. Zerbst, 304 U.S. at 464-465. 58 S.Ct., at 1023. To that end, the trial court must make the defendant “aware of the dangers and disadvantages of self-representation, so that he knows what he is doing and his choice is made with eyes open”, citing Adams v. United States ex rel. McCann, 317 U.S. at 279, 63 S.Ct., at 242. Faretta v. *10 California 422 U.S. 806 at 835, 95 S.Ct. 2525, 45 L.Ed.2d 562. Faretta established that part of making the record establish that the defendant knows what he is doing and his choice is made with eyes open is admonishing the defendant that he would be required to follow all the “ground rules” of trial procedure.

The Texas Code of Criminal Procedure provides, in part, that in such circumstances the trial court shall “advise” the defendant of the “dangers and disadvantages of self representation”. Tex. Code Crim. Proc. Art. 1.051(g).

When the record does not affirmatively show that the defendant was sufficiently admonished before defendant’s waiver of counsel is allowed as is required by Faretta, it is reversible error not subject to harm analysis. Williams v. State, 252 S.W.3d 353, Powell v. State, 632 S.W.2d 354, 355 (Tex. Crim. App 1582)

At Appellant’s trial the judge advised Appellant, before allowing him to represent himself, that Appellant could change his mind even if he were to start representing himself, that he could tell the judge and “let Mr. Sherrod start representing” Appellant. The Court’s advise referred to Appellant changing his mind during the voir dire process when he told Appellant:

“Now listen, I told you you could change your mind. So be

sure and tell me. Don’t just sit there and suffer. It’s not

necessary. Okay? Because you’re going to be missing a

lot of things. And you’ve never done a voir dire and you

don’t even know what to say to them.” (RR, Vol. 7, p. 16)

But when, following the procedure the judge outlined, Appellant attempted voir dire on his own and changed his mind, the judge would not let him have his lawyer back to do voir dire. It is clear from the record that Appellant believed that the judge would let Mr. Sherrod finished the voir dire.

“THE DEFENDANT: That’s fine. At this time I would like to

move the court to remove my motion to represent myself and

ask Mr. Sherrod’s representation.

“THE COURT: Do you want him to do the voir dire?

“THE DEFENDANT: Yes, sir.” (RR Vol. 7, p. 60)

The judge erroneously told Appellant “I can’t” allow Appellant to have his attorney address the jury on voir dire. (RR Vol. 7, p. 60).

It was not until voir dire was completed, that the judge allowed Mr. Sherrod to actively participate in the trial by agreeing to excase some *12 potential jurors, then, a jury was sworn and the court recessed for lunch. When the court re-convened, Appellant once again requested that he be allowed to “withdraw my motion for self-representation”. The mixed signals and erroneous instructions to Appellant evidentially confused him about his right. Mr. Sherrod represented Appellant to the conclusion of the trial.

The issue to be before the Court of Criminal Appeals is that when the trial court gives such misleading advise (intentionally or not) does that advise fulfill the requirements of Faretta? The Court did not advise or admonish Appellant of the danger and disadvantage that the court could, under some circumstances, deprive Appellant of counsel to prevent the disruption of the orderly progress of the trial, or perhaps; as the State has argued; to disallow hybred representation. The court did not advise or admonish that the Appellant would have to follow the ground rules of procedure but that the judge might make an error that would deprive Appellant of counsel during a critical phase of trial and that the court, in effect did not have to follow the rules of procedure because the judge’s error might be deemed to be “harmless.”

In short, the trial court told Appellant the law was one thing and then, after being approached by the Assistant District Attorney, the court decided the law was another thing and erroneously deprived Appellant of counsel. *13 Appellant was led to believe that the law was that he did not “have to suffer” without an attorney, that he could change his mind “…and tell the Judge and let Mr. Sherrod start…” RR Vol. 7, p.13. The Appellate court did not apply the Faretta standard that a defendant must be advised or admonished in such a way that if he enters a waiver of counsel so that he does so having been told of the disadvantages and dangers of self-representation and that he make a choice with eyes open.

If Faretta is to be modified to allow the trial court to advise a defendant erroneously on the law or to advise a defendant that the law protects the defendant in a certain way and then in the same trial to deprive the same defendant of that protection, then it should be the Court of Criminal Appeals that delineates standards and limitations on this practice to guide the courts and the public in the future.

GROUND FOR REVIEW TWO

The Eleventh Court of Appeals Erred when it found that Appellant entered a knowing, intelligent waiver of counsel. RR Vol. 7, pp. 8-16, 60. Calamaco v. State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 7.

ARGUMENT

Review of Ground For Review Two is proper because the Court of Appeals decision has decided an important question of state and federal law that has not been, but should be settled by the Court of Criminal Appeals.

Review of Ground For Review Two is proper because the Court of Appeals has decided an important question of state and federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals and the Supreme Court of the United States.

In order for Appellant’s waiver of counsel which was entered before voir dire commenced at trial herein to have been valid, it must have been given competently, knowingly, intelligently and voluntarily; it is his constitutional right to elect to do so and to represent himself. (U.S. Const., amend. VI; Tex.Const.Art. 1, Sec 10; Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Williams v. State, 252 S.W.3d 353, 356 (Tex.Crim.App. 2008)

The Appellate Court in this case found that Appellant knowingly and intelligently waived his right to counsel prior to voir dire. However, the record reflects that Appellant could not have given a knowing, intelligent nor voluntary relinquishment of his right to counsel at this critical phase of *15 trial because he was misinstructed by the Trial Court as to what could and would happen and was misinformed as to how the law would eventually be carried out regarding his waiver of right to counsel and further, Appellant relied on that misinformation to his detriment in waiving his right to counsel.

Because the Court undertook to inform Appellant of the law pertinent to his decision to have counsel withdrawn and to represent himself and that information was substantially incorrect and erroneously applied, the Appellant cannot be said to have given knowing, intelligent, and voluntary waiver. A defendant should be able to rely on the Court’s advice and here, Appellant did so to his detriment, his eyes closed by the advice of the trial court.

Appellant relied on the trial court’s representation that the court would not commit the error of depriving Appellant of Counsel if Appellant waived his right to counsel. The trial court then committed the error, depriving Appellant of counsel during a critical phase of the trial; voir dire. Only if the trial court had advised Appellant that the court could deprive him of counsel regardless of the court’s representation that it would not deprive him of counsel and further that, if the court deprived him of counsel, Appellant might have no remedy at law because it might be harmless error and then Appellant decided to go ahead and waive the right to counsel could the *16 waiver have been said to have been entered by Appellate with his eyes open, aware of the dangers and disadvantages, knowing, intelligently and voluntarily. If Texas courts are to modify Faretta and it’s progeny, then it should be the Court of Criminal Appeals that delineates these standards and which sets limitations on this practice, resolving any conflicts.

GROUND FOR REVIEW THREE

The Court of Appeals erred when, although it correctly found that the trial court erred by depriving Appellant of counsel during voir dire, it then incorrectly found the error to be non-structural error and further erred by applying a harm analysis to the error. RR Vol. 7, pp. 8-16, 60. Calamaco v. State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, at page 7.

ARGUMENT

Review of Ground For Review Three is proper because this Court has recently granted review of a PDR with a similar issue Lewis v. State, No. 02-12-00246-CR, 2014 WL 491746 (Tex. App. – Fort Worth Feb. 6, 2014) (mem. Op., not designated for publication), pet. granted, (Tex. Crim App. Sept. 17, 2014) (No. PD-0307-14). The issue presented in the parties’ briefs to the Court of Criminal Appeals in Lewis is whether the proper *17 standard of review on appeal was de novo or abuse of discretion. In Lewis the trial court denied the defendant’s request for court appointed counsel to represent him during voir dire and subsequently, throughout trial when he attempted to withdraw his waiver of court appointed counsel.

Review of Ground For Review Three is proper because the Court of Appeals’ decision has decided an important question of state and federal law that has not been, but should be settled by the Court of Criminal Appeals.

Review of Ground For Review Three is proper because the Court of Appeals has decided an important question of state and federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals and the Supreme Court of the United States.

Review of Ground For Review Three is also proper because the question of whether a partial denial by the trial judge of counsel for a defendant during voir dire in a criminal trial can ever be “structural error” is a novel question of law which has not been, but should be, decided by the Court of Criminal Appeals.

The 11th Court of Appeals found that the trial court erred when it refused to allow Appellant withdraw his waiver of counsel and allow appointed counsel to complete the defense portion of voir dire. RR Vol. 7, *18 pp. 8-16, 60. Calamaco v. State No. 11-13-00066-CR, 11th Court of Appeals April 9, 2015, p 7.

The Court of Appeals then ruled:

“Because Appellant was not totally deprived of

counsel during voir dire, we hold that the error was

not a structural one but, rather, one subject to a

harm analysis.” RR Vol. 7, pp. 8-16, 60. Calamaco

v. State No. 11-13-00066-CR, 11th Court of Appeals April

9, 2015, at page 7.

The Court of Appeals then went on to state:

“We have not found a case in which a court specifically

addresses whether the partial denial of counsel during

voir dire is a structural error that is not subject to a harm

analysis or is a constitutional error that is subject to a harm

analysis.”

This is an issue for the Court of Criminal Appeals because the converse is also true: undersigned counsel has not found a case that says partial denial of counsel during voir dire is never a structural error; and in the case of Mr. Calamaco we contend that a thorough review would show that the denial was certainly structural error. There are cases werein partial *19 denial of a constitutional right were found to be structural errors. Davis v. State of Alaska; 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (Feb. 27, 1974 Supreme Court of United States), (cross-examination limited by trial court) Vasquez v. Hillery, 474 U.S. 254 106 S.Ct. 617, 818 L.Ed.2d 598 (1986) (unlawful exclusion of only certain grand jurors based on race). A more extensive briefing may reveal other cases.

The “erroneous denial of counsel bears directly on the framework within which the trial proceeds” United States v. Gonzales-Lopez; 548 U.S. 140, 126 S. Ct. 2557, 165 L.Ed.2d 409 (June 26, 2006 Supreme Court of United States), citing Fulminante.

In it’s analysis of whether or not the denial of Mr. Calamaco’s right to counsel was structural, the Court of Appeals also relied on the fact that the trial court had given Mr. Calamaco a “standby counsel” to support it’s ruling. This reasoning conflicts with earlier rulings that “standby counsel” does not equate to counsel for his defense to which a defendant is entitled by the Sixth Amendment”, Medley v. The State of Texas; 47 S.W.3d 17 (2000), Mckaskle v. Wiggins, 465 U.S. 168, 183-84, 104 S.Ct. 944, 953-54, 79 L.Ed.2d 122 (1984). In it’s opinion in Cronic v. U.S., the U.S. Supreme Court stated that “although counsel is available to assist the accused” that there are occasions when a presumption of prejudice is appropriate without *20 a harm analysis. Cronic v. United States; 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) Powell v. Alabama 287 U.S. 45, 53, S.Ct 55 77 L.Ed 158 (1932).

In it’s analysis of whether the error was structural error the Appellate Court “jumped the gun” and inquired into whether the Appellant was harmed by the error before fully examining the nature of the violation of the 6th Amendment. The Court of Appeals did not fully analyze whether the error amounted to a structural defect affecting the framework in which trial proceeded, and cut short the examination of the error to which Appellant is entitled Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) p. 310, citing Gorbert v. State, 717 S.W.2d 21, 24 (Tex. Crim. App. 1986). Instead of fully examining the nature and effect of the error, the Court of Appeals took a shortcut, citing Gorbert. In Gorbert it is not clear how long the defense attorney was not present during voir dire, but only that his absence was “partial”. It is clear, however, that the absence of defense counsel in Gorbert was only during part of the State’s examination of the panel and not, as it was in Appellant’s trial, during the defense examination. Gorbert at p. 23. In Gorbert the Court of Criminal Appeals relied on Heredia which found no deprivation of right to counsel in a trial where defense counsel was absent for only “two or three minutes” of the *21 State’s examination of a potential juror. Heredia v. State, 528 S.W.2d 847 (Tex. Crim. App. 1975)

In both Gorbert and Heredia the Court of Criminal Appeals found there was no deprivation of the right to counsel. In Mr. Calamaco’s is distinguished because in this case we come to the Court of Criminal Appeals with a finding from the 11th Court of Appeals that the 42nd District Court committed error by depriving the Appellant of his Right to Counsel in violation of the Sixth Amendment to the United States Constitution. Calamaco v. State, No. 11-13-00066-CR (Tex. App. Eastland 2015) p. 7

Calamaco is further distinguished from other partial absence of counsel cases in that Mr. Calamaco’s entire voir dire of the jury panel was very, very brief; it is so short that it consumes only about seven pages of the Court Reporter’s record. RR Vol. 7, pp. 54-61.

The Court of Appeals’ determination that the error was non-structural ignored a standard for distinguishing structural errors from non-structural errors. To apply a harm analysis to a structural error, the court’s have ruled, would be to speculate as to any harm done, and the courts must not engage in such speculation. In cases of non-structural error the effect of the error is quantifiable. The Court of Appeals overlooked that important distinction between structural and non-structural error.

The error found by the Court of Appeals of depriving Appellant of counsel affects the framework in which the trial proceeds and is not simply an error in the trial process itself. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct.1246, 113 L.Ed.2d 302. In United States v. Gonzales-Lopez the U.S. Supreme Court, ruling that a Sixth Amendment violation was not subjected to harmless error analysis, said “erroneous deprivation of the right to counsel of choice with consequences that are necessarily unquantifiable and indeterminate unquestionably qualifies as “structural error” Gonzales-Lopez, citing Sullivan v. Louisiana, 508 U.S. 275, 282.

“It is impossible to know what different choices the

rejected counsel would have made, and then to quantify the

impact of those different choices on the outcome of the

proceedings. … Harmless-error analysis in such a context

would be a speculative inquiry into what might have occurred in

an alternate universe.” Gonzales-Lopez at 150, se also Davis v.

State of Texas; 228 S.W.3d 917 (Tex.Crim.App.2007), Williams

v. State of Texas; 252 S.W.3d 353 (Tex.Crim.App.2008)

This ground should be more fully briefed so the Court of Appeals can make this decision important to the conduct of trials in the lower courts of Texas.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that this Court grant discretionary review and, after full briefing on the merits, issue an opinion reversing the Court of Appeals’ judgment and remanding the cause to the trial court for a new trial.

Appellant respectfully prays that this Court grant review and, after full briefing on the merits, issue an opinion resolving these important issues so that the bench and bar of this state will know how to address similar issues in the future.

Appellant respectfully prays that this Court issue an opinion reversing the Court of Appeals’ judgment and remanding this cause to the Court of Appeals for full and complete consideration of the issue of whether the error of denial of counsel found by the Court of Appeals was a structural error.

Respectfully submitted,

_______________________ Paul W. Hanneman Attorney for Appellant 1305 Lamar Street Sweetwater, Texas 79556 State bar No. 00895500 pwhlawoffice@gmail.com (325) 235-4777

CERTIFICATE OF SERVICE

I hereby certify, by affixing my signature above, that a true and correct copy of the foregoing Petition for Discretionary Review, was mailed through the U.S. Postal Service to James Edison, Office of the Taylor County District Attorney, 300 Oak Street, Abilene, Texas 79602, and was mailed to Lisa McMinn, State Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711, by U.S. Postal Service.

Paul W. Hanneman Attorney At Law

1305 Lamar Street Telephone: (325) 235-4777 Sweetwater, Texas 79556 Fax: (325) 235-4777 pwhlawoffice@gmail.com

Certificate of Compliance

I certify that this Petition For Discretionary Review, a computer generated document, and according to the word count function, this document contains a total of 4,752 words, 3,726 words that are contained in the body of the document, (which does not include caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix) pursuant Tex.R.App.Pro. 9.4 (i)(1), 9.4 (i)(2)(D), this document is printed in a 14-point font.

Paul W. Hanneman

___________________________________________________________ _________________________APPENDIX_________________________

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