# Islas, Brandon AKA Islas, Brandon Cary > Court of Appeals of Texas · November 30, 2015 URL: https://www.frixlaw.com/law-library/cases/4072139 ## Case - **Court:** Court of Appeals of Texas - **Decided:** November 30, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4072139 ## Opinion text gm 333'@» Cause No. F-ZOlO-1896-D WHC-l ry RECE|VED |N ` COURT OF CR|M|NAL APPEALS E:X PARTE § IN THE DISTRICT coURT § NOV 3 0 2015 § 362nd JUDICIAL DISTRICT . § BRANDON IsLAS § DENTON coUNTY, TEXAS APPLICANT's REPLY To Sl'ATE's ANswER, Ab€lACCSfa. Ci€|'k OBJECI'ION 'IO PROPOSED FAIDINGS AND CONCLUSI('X‘B' AND SUPPLEMEN'RL MEDKFRANDUH OF LAW This Reply is submitted pro se in response to the State's Answer (SHA) and proposed findings and conclusions, received by me from the prison mailroom on October 27, 2015. The State's Answer was postmarked on October 23, 2015, presented in the Certificate of Service. My Motion for Appointment of Counsel was submitted, via placement in the prison mail system, on October 26, 2015, and file-stamped on October 29, 2015. That motion is made pursuant to TEX. CODE CRIM. PROC., art. ll.074 and is currently pending. This Reply is dated and submitted, via the prison indigent mail systeml on November _éL§_! 2015. I. OBJECTION TO PROPOSED FINDINGS AND CONCLUSIONS I generally object to the State's proposed findings and conclusions as being made without adequate fact-finding by the habeas court. Further, I specifically object to the failure to provide my former trial counsel and l appellate counsel the opportunity to respond to my allegations of ineffective assistance. Any such failure should require a remand to the habeas court for further review. Ex parte Leos, (Crim. Ppp. 2006) WL 786873 (Lhrptd); Ex parte 'l‘atro, (Crim. Dpp. 2006)(WL 826 7]l)(reremd required whm oomsel not affie%-D mc 1 page "5 RELIEF The appropraite,relief would be to vacate this conviction, as I have served a prison term that exceeds any term allowed for a misdemeanor offense. Fletdier v. State, 214 S.W.3d at 9. II. ADMISSION.OF BLOOD SAMPLE OONTRARY TO A NEW RULE OF LAW During the pendancy of my appeal the U.S. Supreme Court established a new rule of criminal procedural law, rendering Trans. Code Sec. 724.012(b) unconstitutional as applied to the facts and circumstances of my conviction. App. pp. 8~9; I>pp. Man. gm 6-10; P/tissouri v. M:Neely, __133 S.Ct. 1552 (2013)(decisicn date 4/17/13) (oollecticn of eviSrrith v. State, No. l3-ll-694F(R, 2013 WL 5970400 ('It=_>x.7 l>pp. - Cbrpus G'u:isti 10/13/13, m pet.)(Men. Op. not p.b'd), withdraw and replaced by §_rl£h_ v. State, 2014 'Iex. Ppp. LEX[S 12372, decided 11/13/14 (omvictim reversed, case renarriled). The reversal of the conviction in M was entirely the result of the application of the Uly decision retroactively. My appeal was filed in April, 2012, and the decision was rendered on May 14, 2014. During‘that time period __D/ki_\l_ee£ was decided, and §r_t_i_thwas decided and then reconsidered, and the State's PDR granted on February 11, 2015. Islas Reply F-2010-1896-D V\HJ l Pag@ 7 Also, another appellate court decided that _N_bl\hel:__y_ applies retroactively as noted in the State's habeas answer. SHA, p. 15: State v. Esher, 3315 'lex. Agp. LEX[S 772 ('Iex.` App. - Dallas 7/2'7/15, no pet.)(lvsn. Cp. mpub‘d). As presented in Ground 4 herein and in my initial habeas submissions, I was entitled to the application of the __p_l‘/H\le__e_l_y_decision to my conviction for consideration on appeal. At least two other appeal courts retroactively applied_Uly to cases on appeal. The State's assertion that it was "unclear" whether _l`/ti__\lee_ly could be applied retroactively to cases on appeal is not supported by the greater weight of precedent and the conduct of other Texas appeal courts. See §rl;'_t_h_, 2014 'Iex. App. LEXIS 12372 (Cp. p. 15)(relevant c parte Nisvarger, 335 S.W.3d 611, 615.'(']lex. C‘rim. Ppp_.) 2011.). `PRETRIAL OBJECTION TO ATTORNEY PERFORMANCE_ My pretrial objection to --the assistance of trial counsel is a matter of record. FR'S: pp. 15-2!). At one point, the trial court terminated counsel's appointment but reinstated the appointment when new counsel was noteximmediately available. DEFICIENT CONDUCT 'I'rial counsel rendered ineffective assistance by failing to develop a firm command of lthe law and facts of this case through adequate independant investigation resulting in an insufficient adversarial test of the State's Islas Reply ~ F_2010-1896-D wpc 1 Page 9 case. This resulted in counsel's inability to provide any opening statement and a rambling, incoherent, irrelevant closing statement; advice to stipulate to a critically flawed judgment to establish a jurisdictional element; a failure to object to law enforcement testinony that was obviously false; and a failure to challenge the finality of a prior conviction used to establish a felony intoxication offense. The State incorrectlyassertsthat I am complaining of trial counsel's conduct relevant to challenging the admissibility of the blood at trial. SL H§m Ari,pi & ium\l. This was not stated in my habeas application. HIL Ppp" pp.]f%ll. Because that was not part of my claim in Ground Three. I ask that the Court disregard the State's argument presented in it's Answer. (Bzm 14 ga 84». Likewise, the State has presented the same assertion in a different manner by characterizing the claim as "Tampering." see S-lAi p. 13, item 8; oorpare vdth.H;idzttmL pp.lO-UJ No claim of ineffective assistance, related to "tampering", is expressed in Ground Three. Because of the argument above, I specifically object to the State's proposed Conclusion of Law No. 3. No attempt to re-litigate the issue of admissability, based on "tampering" or other police misconduct has been made in my habeas application. These are bad faith'smokeand mirror" representations by the State and should be disregarded. ITEM 2 - FAILURE 'I'O MAKE OPENING STATEMENT Following the prosecutor's opening statement, my trial counseli Van~ zura, declined to provide an opening statement for my defense. RRh p.16 The State has argued that this may have been a strategic decision that does not support an ineffective assistance clainn SB&'HA 9411 The several pre- cedents cited by'the State addresses only a tactical decision to pass on ‘opening at the start of trial. Vanzura,however, passed on delivering an opening Islas Rq>ly F-Z)lO-1896-D v\HC l ' Page 10 statement at the start of the defense case as well. RR7: pp. 168-69. Although not making an opening statement alone may not be deficient . conduct by itself, the complete lack of van opening statement may demonstrate a lack of effort to provide.effective assistance. Stouffer v. Reymlcb, 168 F.3d 1155, 1163 (10th Cir. 1999). The opportunity to marshall evidence and provide a blueprint of the upcoming defense case is a vital aspect of legal advocacy. Jcnes v. Jc:nes, 988 F.Sipp. lGX), 1CD3 (E`..D. La. 1997); Perring v. NewYork, 422 U.S. 853, %2 (1975),. Once the State has closed it's case presentation, defense counsel is fully aware of the State's case removing any justifiable :str:'ateg§i:cr reason to completely waive making an- opening statement. JoE, 988 E‘.Sug). at lCD3 N. 4. By depriving.the jury of a roadmap of any defense theory, the jury had no context to form reasonable doubt of guilt, which harms me by allowing the jury to presume the lack of a~ viable defense. Stouffer v. Reynolds, 214 F.3d 1231, 1234-35 (lOth Cir. 2013). ITEMS 3 & 4 - WITNESSES AND MEETINGS The State incorrectly directs the Court to the appellate decision at Opinion pages *13-14 to demonstrate that any claims regarding witnesses and client meetings were resolved as issues. The State's assertion of disposition of those issues is not accurate as the appeal court made no reference to ineffective assistance in deciding appellate Issue Three. &]A Exh. Cat- *17-21; SHA, p. 10 and N. 9. 'Ihe record reflects that two pre-trial hearing .were held, relevant to ' assistance of counsel. RR4 - Hearirgcn 2/7/12:’ FR‘S - [-Earirg cn 2/28/12. My lack o'f contact with Vanzfir.ai was presented to the trial court. RR4: p. 8. The lack of pre-trial investigation, regarding witnesses, was also presented to’c:th`e trial court. RR4: p. 8. Nei'ther the trial or appeal court. made any findings regarding those issues related to the effective assistance of counsel isles Peply F-2010-1896-D nic-l Page ll as claimed by the State. ITEM 5 - INVESTIGATION To provide effective representation, an attorney is required to develop a firm command of the law and circumstances of the case through independant investigation to allow the development of viable defense theories, provide meaningful-5 assistnace regarding a decision to accept ~a plea offer, effectively elicit testimony at trial, and generally subject the State's case to a meaningful adversarial test. Giildress v. Jol'lnson,y 103 F.3d 1221, 1227 (5th Cir. 1997); bsynes v. _St&£, 790 S.W.2d 824, 827 ('Iex. A;p. - Austin 1990); U.S. v. D:mes, 218 F.3d 496, 500 (5th Cir. ZOCD); E.x parte Li_lly, 656 S.W.2d 490, 493 ('I\ex. C‘ri.m App. 1983); 'Eeist v. Soott, 885 F.Slpp. 927, 931 (E.D 'Iex. 1995); Ex parte langley, 833 S.W.2d 141, 143-44 ('Iex. Crim. App. 1992): Ex parte Chandler, 182 S.W.3d 350; 358 ('Iex. Crim. App. 2005). Vanzura's failure to develop a firm command of the law and facts caused _him to advise me to erroneously stipulate to a conviction for which finality was unproven; he failed to even challenge the finality of a prior conviction used to satisfy a jurisdictional element; he failed to recognize and correct the false testimony . elicited by the prosecutor from a police officer/z and he failed to present an opening statement laying out any viable defense, as well as providing"a closing statement for the guilt phase of trial that essentially gave away the case to the State. Further, his closing statement for the punishment phase was rambling, incoherent, irrelevant anecdotal presentation. ERRONEOUS STIPULATION AND FAILURE TO CHALLENGE FINALITY In Ground One of the- instant application, original memorandum, and herein, 1 have presented the issue of non-finality of a prior conviction used to satisfy an essential juridictional element". "".Vanz‘ura's failure to investigate that conviction and recognize the defects, and apply the law to assert a viable defense due to the defects was ineffective assistance. Ex parte Giardler, 182 S.W.3d at 358 (ignoranoe of well defined laws and legal ocnoepts); lang v. State, 764 S.W.2d _ Islas Reply F-z)101896-D~ wmc-l Page 12 30, 31 ('Iex. PW. - San Antcnio 1%9) (a stipllaticn that destroys a viable defense is not strategy). A failure to investigate a prior conviction is deficient conduct if a potential defense is ignored. lVbore v. Jd'nscn, 185 F.3d 244; 265 (5th Cir. 1999), cert. denied 120 S.Ct. 522 (failure to investigate prior conviction is deficient die to pote'rtial ciafense); Vasql.ez v. State, 830 S.W.2d `948,' 951 ('lec. G:im. Ag). 1992)(unreasorsble condlct for attorney mt to advance defalse recognized by'courts and statutes); Bladdourn'v. Fbltz, 828 F.2d 1177, 1181-82 (6th Cir. 1%7 )(an error of law is not reasonable strategy). By failing to recognize the potential defense of non-finality that would result in a lack of jurisdiction, ?Vanzura's conduct was unreasonably deficient. His failure allowed a felony prosecution and conviction when a misdemeanor conviction and punishment may only have been possible. Pen.(bde§49AIXa);Vasmrz, 830 S.W.2d at 951 (harm is satisfied by ccnvictic:n if other result prdoable but for attorney ardxi). Although the challenged felony conviction satisfies the Sziddani prejudice prong¢ the State argues that the stipulations entered on the defective advice of counsel bar any challenge to a lack of jurisdiction. SWN p.5;(komd l daemi If the State's argument is persuasive, then TVanzura's advice harmed me by preventing the later submission of a claim upon which relief could be based, although a showing of specific harm may not be necessary. §ZE§ v. lockhart, 851 F.Zd 1115, 1117 (8th Cir. l988)(errcneo.ls stip.]lation pres,rres preju§ice). But for his advice, I would not have stipulated to the 1993 DWI conviction. 'Manzura's defective advice to stipulate to flawed evidence required for jurisdiction, in combination with the resulting conviction, felony punish# menti and any barrier to a later challenge on appeal of that evidence, should be sufficient as a single error to demonstrate ineffective assistance. Thoqxrn, 9 S.W.3d` at 813; U.S. v. go£, 104 S.Ct. 2039, 2016 N. 20 (1984). *Nanzura sat silently while the prosecutor elicited false police testimony regarding the authorization to collect the evidentiary blood used so extensively against me. At first a police officer testified that the TPF-5l order was . lslas Reply F-2010-1896-D wmc-l cage 13 a warrant. RR7: p. 108, lines 16-25; SDlicant'sm‘em. of law, G:omd 1; Islas Feply F-2010-1896-D VsHC-l Fage 17 Pen. m 49.09(b)(2); State»v. Mewbolrn, 993 S.W.2d 771, 772 ("Dex. App. - 'lyler 1999); Barfield 'v. State, 999 S.W.2d 23, 24 (’Iex. Dpp. - Pbustcn [14th Dist.] 1999). Without proof of the finality of that conviction, the trial court was deprived of jurisdiction of the case. Code Crim. Proc. art. 4.057'1Vewbourn, 993 S.W.2d at 772; Barfield, 999 S.W.Zi at 24N. 1. On appeal, the failure to prove two prior convictions requires acquittal or a modification of the judgment and a new punishment trial. Barfield, 999 s.w.zd ar 26; Reyes v. State,~ 394-s.w.-3d 809i 812 ('iex. ppg - pnm-1110 2013); Lurdgren v. Statei 436 S.W.3d 399, 400 ('Iex. App. - Et. Wo:'th 2014; Wbsquia v. State, 936 S.W.2d 714, "m('Iex. ppg-Ft. mrth1996). A lack of jurisdiction by the convicting court would render any punishment imposed illegal as not being authorized'by law., Ex parte Pena, 71 S.W.3d 336, 339 (iex. crim p@. 2002)("111egel" defined es mt minimized by ls»); mizell v. state 119 sw.3d 804, 806 N. 7 ('Iex. Crim. App'. 2303). Relief from an illegal sentence may be obtained by direct appeal or collateral attack. M, 119 S.W.3d at 806; _Pel;)a, 71 S.W.3d at 339and N. 1. Jurisdictional claims are not waivable and a district court's jurisdiction in the instant case is only had when the felony predicates are satisfied. Miller v. State, 939 S.W.2d 586, 592 ('Iex. Ppp. - Austirr:1995)(jurisdictio'1a1 matters mt »eiveldle_); code crim Prec. art. 4.05; wewbdim, 993 sw.zd et 772.' Appeal counsel failed to recognize the defective judgment the State claims proves finality of a conviction required as a jurisdictional element. The failure of counsel to present the issue was conduct that was not reasonable. The issue is arguable in- statute and precedent and would require a different result from the appeal court. Fletcher v. State, 214 S.W.3d 5 ('lex. Crim. P;p. 2007)(at 8 - no harmless error analysis.reqdired; at 9 - proper reredy is reversaland remand); M v. Robbins, 528`U.S. .at 285. Counsel failed to adequately develop a command of the law and precedent to properly apply that knowledge to the circumstances supporting this issue and make an informed decision on its merits. _U.S._v. Phillips, 210 F.3d at 348 (reaso'!ableness starr;lard); Eb<_parte Ybarra, 629 S.W.2d 943, 946 ('Iex. isles Peply F-2010-1898-D wit-1 ' Pege 18 Crim. App.'. 1982) (effective assistance reqlires firm command of facts ard law, thcxolgh investigation is fcundaticn of effective assistance); Elx parte Giandler, 182 S.W.3d 350, 358 ('I\ex. G:iln. App. 2005) (ignorance of mall-defined statutes, general laws, cr legal p:qacsitio"ls not excusable). Counsel's failure '1 fha"s:- prejudiced me by failing to present a juris- dictional error'upon which relief would be required if proven true. The felony sentence imposed is illegal if the jurisdictional`§ error only allowed for a misdemeanor sentence at the time of trial. l ITEM 2 - FAILURE 'I‘O CHALLENGE ADMISSABILITY OF'BLOOD SAMPLE EVIDENCE BASED ON MCNEELY The U.S. Supreme Court rendered it's decision in D/ti\leely on April 17, 2013, during the pendancy of my appeal) which concluded on September 29, 2014, over one year~later. Although the length of the appeal review period was directly due to further proceedings regarding admissability of the blood sample evidence due to police misconduct, counsel failed to also challenge admissability based on the illegal seizure of the evidence. see Ag)licant's P/En. cr law, G':oind 2.- This failure was unreasonable due to the extensive use of the blood evidence at trial'. SIX'- 397 RR7 pp. 138-159. Further, the collection of the blood sample was decep_.t?:i’v;e“ljy mischaracterized during testimony elicited by the State from a police officer. P§plioant's Mem. of law, p. 7; RR7: pp. 107-109. lt cannot be said beyond a.reasonable doubt that the use of the blood evidence did not significantly contribute to the jury verdict. -Had my trial counsel raised the constitutional claim allowed by ,I‘/bNeely, it is more than probable that a new trial would be required. The State claims that it is "unclear" whether or not MiNeely could have been applied retroactively, citing only one case from a different state to support this lack'of.clarity. see SHA,Jp. 15. The greater weight of precedent relevant to a 'Dexas conviction clearly establishes that I was entitled to the application of leNeely~ to the appellate review of my conviction. Danforth isles Peply F-2010-1896-D mic-1 Pege 19 v. Minresota, 552 U.S. 264 128 S.Ct. 1029, 1032 (2£!)*); Wnartoi v. Bccking, 549 U.S. 4C6 127 S.Ct. 1173, 1180 (2(07); State v. Esher, No. 05-14-00694-CR, 2015 'Iex. App. LEX_`[S 7722 ('Iex. Ppp. - Dallas 7/27/15, m pet. ); Allen v. leed, 427 F.3d 767 (10th Cir. 2CD5)(at 770 citing Griffith v. I