Opposition Brief — Anthwaun Jordan, Petitioner v. Texas
Supreme Court briefAug 23, 2019
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NO. 18-9011
IN THE
Supreme Court of the United States
ANTHWAUN JORDAN,
Petitioner,
v.
THE STATE OF TEXAS,
Respondent.
On Petition for Writ of Certiorari
to the Texas Court of Criminal Appeals
BRIEF IN OPPOSITION
James Hicks
Criminal District Attorney
Britt Houston Lindsey
Assistant District Attorney
Counsel of Record
Taylor County, Texas
300 Oak Street, Suite 300
Abilene, Texas 79602
325-674-1261
325-674-1306 FAX
Counsel for Respondent
QUESTION PRESENTED
1.
Whether the findings of the trial court and the Texas Court of
Criminal
Appeals
that
Petitioner’s
trial
counsel
was
not
constitutionally deficient when he did not file a notice of appeal
presents a compelling reason for the grant of review, or whether
instead the lower courts’ decisions turn on factual findings and a
credibility determination in a manner consistent with this Court’s
reasoning in Garza.
i
TABLE OF CONTENTS
QUESTIONS PRESENTED................................................................ i
INDEX OF AUTHORITIES .............................................................. iii
INTRODUCTION ............................................................................... 1
STATEMENT OF THE CASE ........................................................... 3
I. Factual and procedural background, jury trial ............................ 3
II. Factual background, post-conviction writ of habeas corpus ........ 6
REASONS FOR DENYING THE PETITION ................................... 9
I. There is no compelling reason to grant certiorari; this case does
not present any question of law, but rather hinges on the trial
court’s factual findings and credibility determination between
Petitioner and his trial counsel. .................................................... 9
A. Petitioner and trial counsel’s versions of events were in direct
conflict. ..................................................................................... 11
B. The trial court could reasonably consider Petitioner’s complete
silence about his appeal for two years in assessing Petitioner’s
credibility; Petitioner said nothing of counsel’s refusal even
when appearing in the same court two weeks later............... 13
C. Petitioner now states that he wanted to appeal immediately,
but was likely advised that he had avoided a punishment
range that could have resulted in a life sentence................... 14
II. The Court of Criminal Appeals decision in this case explicitly
invoked its decision in Jones v. State, which advances the same
rule as Garza; the result would be the same whether or not the
Court of Criminal Appeals was aware of Garza. ........................ 20
CONCLUSION ................................................................................. 29
ii
INDEX OF AUTHORITIES
CASES
Ex parte Axel, 757 S.W.2d 369 (Tex. Cr. App. 1988) ................. 24, 26
Ex parte Galvan, 770 S.W.2d 822 (Tex. Crim. App. 1989) .............. 26
Ex parte Garcia, 353 S.W.3d 785 (Tex. Crim. App. 2011) ......... 12, 21
Ex parte Jordan, No. WR-89,080-01, 2019 Tex. Crim. App. Unpub.
LEXIS 99, 2019 WL 1461624 (Tex. Crim. App. Feb. 27, 2019)……
.................................................................................................... 9, 21
Ex parte Mitchell, No. WR-89,785-01, 2019 WL 3315851, 2019 Tex.
Crim. App. Unpub. LEXIS 433 (Tex. Crim. App. July 24, 2019)..
.................................................................................................. 27, 28
Ex parte Rocha, 482 S.W.2d 169 (Tex. Crim. App. 1972) ................ 27
Ex parte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967)............ 8, 26
Garza v. Idaho, 139 S. Ct. 738 (2019) ....................................... passim
Greene v. State, No. 11-15-00212-CR, 2017 Tex. App. LEXIS 906
(Tex. App.—Eastland Feb. 2, 2017, no pet.) ................................. 15
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997)................ 12
Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003) ............. passim
Roe v. Flores-Ortega, 528 U.S. 470 (2000)........................................ 10
Ward v. State, 740 S.W.2d 794 (Tex. Crim. App. 1987)............. 25, 27
STATUTES
Tex. Code Crim. Proc. Ann. art. 11.07 (West 2018) ........................... 6
Tex. Code Crim. Proc. Ann. art. 11.07 § 3(d) (West 2018) ................. 6
iii
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(d) (West 2011) ................ 4
Tex. Penal Code Ann. § 12.32 (West 2011) ...................................... 20
Tex. Penal Code Ann. § 12.42 (a) (West 2011) ........................... 17, 18
Tex. Penal Code Ann. § 22.01 (b)(2)(A) (West 2011).................. 17, 18
Tex. Penal Code Ann. § 22.01 (b)(2)(B) (West 2011).................. 17, 18
Tex. Penal Code Ann. § 22.01 (b-1) (West 2011) .............................. 19
Tex. Penal Code Ann. § 22.01 (b-3) (West 2019) .............................. 19
RULES
Sup. Ct. R. 27 ...................................................................................... 9
Tex. R. App. P. 25.2(b)......................................................................... 5
Tex. R. App. P. 25.2(d) ........................................................................ 4
Tex. R. App. P. 26.3 ............................................................................. 5
iv
NO. 18-9011
IN THE
Supreme Court of the United States
***************************************************************
ANTHWAUN JORDAN,
Petitioner,
V.
THE STATE OF TEXAS,
Respondent.
***************************************************************
On Petition from
The Texas Court of Criminal Appeals and
The 104th District Court of Taylor County, Texas
Honorable Lee Hamilton, Judge Presiding
Trial Court Cause Number 21,009-B
***************************************************************
BRIEF IN OPPOSITION
***************************************************************
The State of Texas, by and through her Assistant Criminal District
Attorney, Britt Lindsey, respectfully submits this brief in opposition to
the petition for a writ of certiorari filed by Anthwaun Jordan.
INTRODUCTION
This Court recently held in Garza v. Idaho that “[w]here, as here, a
defendant has expressly requested an appeal, counsel performs
deficiently by disregarding the defendant’s instructions.” Garza v. Idaho,
139 S. Ct. 738, 746 (2019). In Garza, no facts were in dispute. Garza
1
shortly after sentencing decided that he wished to appeal, and
“continuously reminded” his attorney of this directive “via phone calls
and letters.” Id. at 743. Garza’s trial counsel acknowledged in his own
affidavit that Garza had “told me he wanted to appeal the sentence(s) of
the court.” Id. Garza’s trial counsel, however, did not file a notice of
appeal. Instead, counsel “informed Mr. Garza that an appeal was
problematic because he waived his right to appeal.” Id. In the instant
case, the facts are not only in dispute, they are directly contradictory. The
Petitioner claims that he told his trial counsel to appeal immediately, and
his trial counsel flatly refused. Trial counsel did not remember the
conversation, as it happened over two years ago, but insisted that it his
routine practice to file a notice of appeal when asked to do so, and he
would have done so in this case if directed. The Court of Criminal
Appeals based its decision on trial counsel’s averment that he would have
filed the notice of appeal had he been asked to do so.
The Court of Criminal Appeals issued its opinion prior to this
Court’s opinion in Garza, but the decision would have been exactly the
same had Garza been issued. The Court of Criminal Appeals explicitly
invoked its prior decision in Jones v. State, 98 S.W.3d 700 (Tex. Crim.
2
App. 2003), which held that the decision to appeal lies solely with the
defendant, that trial counsel must ascertain whether the defendant
decides to appeal, and that trial counsel must ensure that written notice
of appeal is filed if the defendant so desires. This advances the same rule
as Garza, and consideration of Garza would not have changed the
outcome.
STATEMENT OF THE CASE
I.
Factual and procedural background, jury trial
Anthwaun Jordan (Petitioner) was charged by indictment in cause
number 19095-B for two counts of assault family violence in the 104th
District Court of Taylor County, Texas on September 12, 2013. (HCCR: 67)1 Petitioner was also indicted for another count of assault family
violence in cause number 19649-B, with a different date of offense and
different victim alleged.
Counsel initially received a court-appointed attorney, but later
retained attorney Samuel Mehaffey (“trial counsel”). Petitioner entered
into an employment contract with trial counsel which under the heading
“HCCR” and “HCCR Supp.” refer to the clerk’s record and supplemental clerk’s
record filed by the Taylor County District Clerk in the Texas Court of Criminal
Appeals in the habeas corpus.
1
3
“Scope of Representation” stated “We have agreed to represent you in the
defense of the criminal prosecution through trial and sentencing. It is
understood and agreed that this agreement DOES NOT cover any
appeals which you may wish to undertake.” (HCCR Supp: 7) A jury trial
began on March 21, 2016. On March 24, 2016, Petitioner was found guilty
of both counts of assault family violence. The trial court ordered a presentence investigation report prepared and scheduled a sentencing
hearing in 45 days. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(d) (West
2011).
A sentencing hearing was held on July 5, 2016. After hearing
evidence and argument, the trial court sentenced Petitioner to 20 years
confinement in the Texas Department of Criminal Justice Institutional
Division on both counts. (HCCR: 20-21, 22-23) Petitioner was informed of
his right to appeal on that same date by the trial court. Both Petitioner
and the trial court judge signed two certifications of his right to appeal,
one for each count, reflecting that Petitioner had the right of appeal and
that he had received notice of such. (HCCR: 18, 19) See Tex. R. App. P.
25.2(d) (“Certification of Defendant’s Right of Appeal”). The written
judgments for both counts were entered on July 5, 2016. (HCCR: 20-21,
4
22-23)
Under the Texas Rules of Appellate Procedure, an appeal in a nondeath penalty case is perfected by the timely filing of a notice of appeal.
Tex. R. App. P. 25.2(b). To be timely, the Defendant’s notice of appeal
must be filed (1) within 30 days after the day sentence is imposed or
suspended in open court, or after the day the trial court enters an
appealable order; or (2) within 90 days after the day sentence is imposed
or suspended in open court if the defendant timely files a motion for new
trial. Tex. R. App. P. 26.3. This period may be extended if the notice and a
motion to extend are filed in the trial court and appellate court
respectively within 15 days after the deadline. Tex. R. App. P. 26.3. No
motion for new trial or notice of appeal was filed. The judgment became
final on August 19, 2016, 45 days after the sentence was entered.
On July 21, 2016, Petitioner again appeared in front of the same
judge in the 104th District Court with a different attorney and entered a
plea of guilty to another charge of third degree assault family violence
under a different cause number, 19649-B. Pursuant to a plea agreement
he pleaded guilty and received an agreed sentence of 2 years in prison and
no fine. (Judgment in 19649-B)
5
II.
Factual background, post-conviction writ of habeas corpus
On September 20, 2018, Petitioner filed a pro se application for writ
of habeas corpus in the trial court which was then transmitted to the
Texas Court of Criminal Appeals, pursuant to Tex. Code Crim. Proc. Ann.
art. 11.07 (West 2018). Petitioner alleged that “trial counsel was
constitutionally ineffective for failing to file an appeal as instructed.”
(HCCR: 29) In his writ, Petitioner further alleged that:
Applicant wanted to appeal his conviction and sentence
and directed his attorney to do so. Attorney told applicant he
did not believe he had any meritorious issues for appeal and
would not do so. Attorney also told applicant that he would
swear in an affidavit that he refused to perfect applicant’s
appeal as instructed. Furthermore, this verbal exchange
occurred in the presence of applicant’s father so he can attest
to these facts as well. Applicant has numerous meritorious
issues for appeal and any reasonable person would have
appealed this conviction. Applicant was also indigent and
incarcerated and legally entitled to appointed counsel which
his trial attorney failed to request from the court. Counsel’s
actions were not reasonable trial strategy.
(HCCR: 29) On October 31, 2018, the Texas Court of Criminal
Appeals entered an order directing the trial court to make findings of fact
and conclusions of law concerning Petitioner’s claim, using any means set
out in Tex. Code Crim. Proc. Ann. art. 11.07 § 3(d) (West 2018) that the
trial court deemed necessary. That section states that the trial court may
6
order “affidavits, depositions, interrogatories, additional forensic testing,
and hearings, as well as using personal recollection.” Upon request of the
court, Petitioner’s trial counsel provided the trial court with a copy of the
contract he and Petitioner had signed and his own sworn affidavit. The
affidavit read:
Defendant alleges that he instructed me to file an appeal
on his behalf. This case concluded over two years ago. I do not
remember any conversations that I had with Defendant in
this case.
However, I routinely instruct my retained clients that I
do not represent them on appeal. My contract in this
particular case also addresses this issue. Mr. Jordan signed a
contract with me in which he agreed that the employment
contract did “NOT cover any appeals which [Defendant] may
wish to undertake.”. See Exhibit “A” attached hereto and
incorporated for all purposes.
Additionally, Defendant was instructed of his right to
appeal on the record in this case. See Criminal Docket Sheet
which is attached.
Further, Defendant's actions do not support his
contention that I stated to him that I was going to appeal his
case. At no point in the last two years have I received any type
of communication from Mr. Jordan or his family. In all of my
other cases, defendants routinely send me letters regarding
their appeals. I received absolutely no communication from
the Defendant in this case after sentencing. Additionally, Mr.
Jordan's rendition of the facts is inconsistent with my
business practices. When I am requested to file an appeal,
even though my contract says that I will not, I file the appeal
to preserve the deadline and then withdraw. Because this case
7
is over two years old, I do not recall specific discussions with
Defendant. However, my file, the employment contract and
the record indicate that Mr. Jordan was aware of his right to
appeal and that he needed to take action on his own to perfect
that appeal.
(HCCR Supp.: 5) On January 23, 2019, the trial court made
findings of fact and conclusions of law, recommending that relief be
denied. (HCCR Supp. 12-13) The trial court found that Petitioner was
advised of his right to appeal when he was sentenced, understood his
right of appeal, knew that trial counsel was not going to file an appeal,
did not advise the trial court that he wanted an appeal, and did not
request a court appointed attorney. (HCCR Supp. 12-13) On February 27,
2019 the Texas Court of Criminal Appeals denied relief, entering the
following order per curiam:
Pursuant to the provisions of Article 11.07 of the Texas
Code of Criminal Procedure, the clerk of the trial court
transmitted to this Court this application for a writ of habeas
corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App.
1967). Applicant was convicted of assault and sentenced to
twenty years’ imprisonment.
Applicant contends that trial counsel failed to timely file
a notice of appeal. We remanded this application for a
response from trial counsel and findings of fact and
conclusions of law from the trial court. On remand, trial
counsel responded in a sworn affidavit, and based on that
affidavit, the trial court found, among other things, that trial
counsel did not remember whether Applicant asked him to file
8
an appeal. The trial court recommended that we deny relief.
We agree. Given the trial court’s finding, Applicant has not
shown that trial counsel was deficient.
We remind trial counsel and the trial court that it is
trial counsel’s duty to ensure notice of appeal is filed with the
trial court. In his affidavit, trial counsel stated that his file,
the record, and his employment contract with Applicant
indicated that Applicant was aware of his right to appeal and
that Applicant “needed to take action on his own to perfect
that appeal.” This is not consistent with this Court’s case law.
As we explained in Jones v. State, “If the defendant decides to
appeal, [trial counsel] must ensure that written notice of
appeal is filed with the trial court.” Jones v. State, 98 S.W.3d
700, 703 (Tex. Crim. App. 2003). Relief is denied.
Ex parte Jordan, No. WR-89,080-01, 2019 Tex. Crim. App. Unpub.
LEXIS 99, 2019 WL 1461624 (Tex. Crim. App. Feb. 27, 2019).
REASONS FOR DENYING THE PETITION
I.
There is no compelling reason to grant certiorari; this case
does not present any question of law, but rather hinges on the
trial court’s factual findings and credibility determination
between Petitioner and his trial counsel.
U.S. Supreme Court Rule 27 states that a petition for writ of
certiorari will only be granted for “compelling reasons,” and specifically
notes that the petition “is rarely granted when the asserted error consists
of erroneous factual findings or the misapplication of a properly stated
rule of law.” Sup. Ct. R. 27. This case hinges on the factual findings and
9
credibility determination of the the trial court and Texas Court of
Criminal Appeals and presents no question or conflict of law that merits
this Court’s attention.
This Court’s stated rule is that to prevail on an ineffective
assistance claim, the defendant must demonstrate that counsel’s
constitutionally deficient performance deprived him of an appeal that he
otherwise would have taken. Garza v. Idaho, 139 S. Ct. 738, 747 (2019);
(citing Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000)). This case presents
a trial court’s weighing of Petitioner’s credibility as to whether he was
truthful about what was said in his post-trial consultation with his trial
counsel, and about his own desire to pursue an appeal at the time of that
consultation.
Petitioner does not argue failure to consult with him about an
appeal, but rather that during the consultation that trial counsel refused
to file the notice when directed to do so. The trial court was entitled to
make an appropriate factual determination as to whether appellant was
truthful about his claim that trial counsel refused to file a notice of appeal
in light of trial counsel’s affidavit that he would have filed a notice of
appeal if he had been directed to do so.
10
A.
Petitioner and trial counsel’s versions of events were in direct
conflict.
Petitioner does not claim that his lawyer failed to consult with him
regarding an appeal, and does not argue that he did not understand the
trial count’s admonitions that he had the right of appeal or the notice of
his right of appeal that he signed. Petitioner claims that he not only did
consult with trial counsel, but that trial counsel flatly refused to file a
notice of appeal when directly told to do so. Appellant’s trial counsel
states that he could not remember the contents of the conversation
because Petitioner had waited for over two years to file his postconviction writ, but noted that when a client expresses a desire to appeal
that it is his practice to file a notice of appeal to preserve appellate
deadlines and then withdraw. Petitioner’s statement and trial counsel’s
statement cannot both be true. Either Petitioner told his trial counsel to
file the notice and he refused, or Petitioner either did not express his
desire to appeal or did not want to appeal and no notice was filed.
The trial court could reasonably conclude that Petitioner’s version
of events was not truthful, that he understood his right to appeal, that he
voluntarily chose not to exercise that right, and then changed his mind
over two years later. Petitioner states that his attorney did not merely
11
fail to file the notice, but flatly refused to do so, not even allowing another
attorney to file a brief on his behalf. This direct refusal of the Court of
Criminal Appeals’ directive in Jones v. State, 98 S.W.3d 700 (Tex. Crim.
App. 2003) (and of this Court’s case law even prior to Garza) following a
jury trial would be shocking if true, and the trial court could reasonably
view it with suspicion in conjunction with trial counsel’s affidavit and the
lateness of Petitioner’ complaint.
The jurisprudence of the Court of Criminal Appeals rightly affords a
great deal of weight to the credibility determinations of the trial court in
an 11.07 proceeding: “[A]s a general rule, the appellate courts, including
this Court, should afford almost total deference to a trial court's
determination of the historical facts that the record supports especially
when the trial court's fact findings are based on an evaluation of
credibility and demeanor.” Ex parte Garcia, 353 S.W.3d 785, 787 (Tex.
Crim. App. 2011) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997)). There are a number of factors that support the trial
court’s determination that Petitioner’s version was not truthful: his trial
counsel’s contradiction and statement that he would have filed an appeal
if asked, Petitioner’s more than two year silence regarding his desire to
12
appeal, and the possibility of facing a first degree punishment range on
retrial even if an appeal were successful.
B.
The trial court could reasonably consider Petitioner’s complete
silence about his appeal for two years in assessing Petitioner’s
credibility; Petitioner said nothing of counsel’s refusal even
when appearing in the same court two weeks later.
As stated above, in Garza, it was undisputed by all parties that the
defendant decided to appeal shortly after sentencing, and his wishes to
appeal were clearly and promptly conveyed. Garza at 743. That is not the
case here. Petitioner’s claim is in direct conflict with his trial counsel’s
affidavit that he would have filed the notice if directed to, and defendant
did not state a desire to appeal when appearing in front of the same judge
two weeks later or at any point following that for over two years.
Garza told his trial counsel to appeal shortly after sentencing. His
trial counsel acknowledged in his own affidavit that Garza had “told me
he wanted to appeal the sentence(s) of the court,” but that he did not do
so because Garza had waived his right to appeal. Garza at 743. That is
not the case here. Garza’s attorney admitted that he refused to file the
notice of appeal when directed to do so shortly after sentencing;
Petitioner’s trial counsel stated that he would have filed the notice of
appeal had he been directed to do so. On July 21, 2016, two weeks after
13
his sentencing, Petitioner again appeared in the 104th District Court in
front of the same judge with a different court appointed attorney to accept
a plea agreement on a different assault family violence charge in cause
number 19649-B. There is nothing in the record to suggest that Petitioner
told the court of his prior attorney’s alleged refusal to file the notice or
expressed his desire to appeal at that time, and Petitioner does not assert
that he did so. Garza “continuously reminded” his attorney of his
directive to appeal “via phone calls and letters.” Id. By contrast,
Petitioner’s trial counsel stated in his affidavit that “at no point in the
last two years have I received any type of communication from Mr.
Jordan or his family. In all of my other cases, defendants routinely send
me
letters
regarding
their
appeals.
I
received
absolutely
no
communication from the Defendant in this case after sentencing.” (HCCR
Supp: 5) No correspondence from Petitioner to the trial court concerning
his desire to appeal appears anywhere in the court’s file. Petitioner was
completely silent regarding his appeal for over two years, until filing his
writ on September 20, 2018.
C.
Petitioner now states that he wanted to appeal immediately,
but was likely advised that he had avoided a punishment
range that could have resulted in a life sentence.
14
Criminal defendants can and do decide not to pursue appeals,
whether out of a desire to be done with the process or for reasons of their
own; occasionally a defendant will inform his attorney that he no longer
wishes to pursue his appeal after briefs have been filed and while the
case is pending. See, e.g. Greene v. State, No. 11-15-00212-CR, 2017 Tex.
App. LEXIS 906 (Tex. App.—Eastland Feb. 2, 2017, no pet.) (defendant
filed a motion for voluntary dismissal of his pending appeal). However,
Petitioner had a very good reason for not pursuing an appeal.
The indictment in 19095-B read as follows:
THE GRAND JURORS, duly selected, organized, sworn,
and impaneled as such for the County of Taylor, State of
Texas, at the July Term, 2013, of the 104th District Court for
said County upon their oaths present in and to said Court,
that on or about the 30th day of June, 2011 and anterior to
the presentment of this indictment, in the County and State
aforesaid, ANTHWAUN JORDAN AKA ANTHWAUN VELO
JORDAN did then and there intentionally, knowingly and
recklessly cause bodily injury to MARY ANN BEAVER, a
member of the said ANTHWAUN JORDAN AKA
ANTHWAUN VELO JORDAN'S family and/or household, by
intentionally, knowingly and recklessly impeding the normal
breathing and circulation of the blood of the said MARY ANN
BEAVER by applying pressure to the throat and neck of the
said MARY ANN BEAVER,
AND THE GRAND JURORS AFORESAID, do further
present that prior to the commission by the said ANTHWAUN
JORDAN AKA ANTHWAUN VELO JORDAN of the offense
which is hereinabove charged against him, he, the said
15
ANTHWAUN JORDAN AKA ANTHWAUN VELO JORDAN
was duly and legally convicted on the 23rd day of December,
2002 in the First Judicial Circuit Court for Okaloosa County,
Florida of a felony offense, to-wit: AGGRAVATED CHILD
ABUSE in Cause Number 02-879-CF-001, said Cause being
styled the State of [Florida] vs. ANTHWAUN VELO
JORDAN, being one and the same as the said ANTHWAUN
JORDAN AKA ANTHWAUN VELO JORDAN, and after the
judgment of conviction had become final against him, he, the
said ANTHWAUN JORDAN AKA ANTHWAUN VELO
JORDAN committed the offense hereinabove alleged[.]
SECOND COUNT
AND THE GRAND JURORS AFORESAID, upon their
oaths aforesaid, in the said County and State aforesaid, at
said term, do further present in and to said Court that on or
about the 30th day of June, 2011 and anterior to the
presentment of this indictment, in the County and State
aforesaid, ANTHWAUN JORDAN AKA ANTHWAUN VELO
JORDAN did then and there intentionally, knowingly and
recklessly cause bodily injury to MARY ANN BEAVER, a
member of the said ANTHWAUN JORDAN AKA
ANTHWAUN VELO JORDAN'S family and/or household by
striking the said MARY ANN BEAVER on and about the face
with his hand and kicking the said MARY ANN BEAVER,
And prior to the commission of the offense herein above
alleged in paragraph 1, the defendant, ANTHWAUN
JORDAN AKA ANTHWAUN VELO JORDAN had previously
been convicted of an assault against a member of the
ANTHWAUN
JORDAN
AKA
ANTHWAUN
VELO
JORDAN'S family and/or household in Cause No.1-103581 in
the County Court at Law #1 of Taylor County, Texas on the
17th day of November, 2000,
AND THE GRAND JURORS AFORESAID, do further
present that prior to the commission by the said ANTHWAUN
16
JORDAN AKA ANTHWAUN VELO JORDAN of the offense
which is hereinabove charged against him, he, the said
ANTHWAUN JORDAN AKA ANTHWAUN VELO JORDAN
was duly and legally convicted on the 23rd day of December,
2002 in the First Judicial Circuit Court for Okaloosa County,
Florida of a felony offense, to-wit: AGGRAVATED CHILD
ABUSE in Cause Number 02-879-CF-001, said Cause being
styled the State of [Florida] vs. ANTHWAUN VELO
JORDAN, being one and the same as the said ANTHWAUN
JORDAN AKA ANTHWAUN VELO JORDAN, and after the
judgment of conviction had become final against him, he, the
said ANTHWAUN JORDAN AKA ANTHWAUN VELO
JORDAN committed the offense hereinabove alleged,
AGAINST THE PEACE AND DIGNITY OF THE
STATE.
(HCCR: 5)
Count one was a third degree felony due to the assault having been
committed by “intentionally, knowingly, or recklessly impeding the
normal breathing or circulation of the blood of the person by applying
pressure to the person's throat or neck or by blocking the person's nose or
mouth.” Tex. Penal Code Ann. § 22.01 (b)(2)(B) (West 2011). Punishment
was further enhanced on this count to a second degree felony by the prior
Florida felony conviction. Tex. Penal Code Ann. § 12.42 (a) (West 2011).
Count two was a third degree felony due to a prior conviction for assault
family violence. Tex. Penal Code Ann. § 22.01 (b)(2)(A) (West 2011).
Punishment was also further enhanced on this count to a second degree
17
felony by the prior Florida felony conviction. Tex. Penal Code Ann. §
12.42 (a) (West 2011). However, the assault family violence that was
alleged in count two should have applied to count one as well, and
Petitioner should have faced a first degree felony punishment range for
that count.
There appears to have been a drafting error in the indictment that
worked to Petitioner’s benefit. The middle paragraph in count two
concerning his prior conviction for assault family violence in Cause No.1103581 enhanced that offense from a misdemeanor to a third degree
felony. Tex. Penal Code Ann. § 22.01 (b)(2)(A) (West 2011). The prior
felony conviction from Florida further enhanced that punishment to a
second degree felony. Tex. Penal Code Ann. § 12.42 (a) (West 2011). The
range of punishment for a second degree felony in Texas is two to twenty
years imprisonment. Tex. Penal Code Ann. § 12.33 (West 2011). Count
one alleges assault family violence by impending the flow of breath or
blood, a third degree felony. Tex. Penal Code Ann. § 22.01 (b)(2)(B) (West
2011). This in turn was enhanced to a second degree felony by the prior
felony conviction from Florida. Tex. Penal Code Ann. § 12.42 (a) (West
2011).
18
However, had the allegation of the prior conviction from count two
also been included in count one, it would have been clear that count one
was enhanced to a second degree felony by the prior assault family
violence under a different section, Tex. Penal Code Ann. § 22.01 (b-1)
(West 2011). That section read:
Notwithstanding Subsection (b)(2), an offense under
Subsection (a)(1) is a felony of the second degree if:
(1) the offense is committed against a person whose
relationship to or association with the defendant is described
by Section 71.0021(b), 71.003, or 71.005, Family Code;
(2) it is shown on the trial of the offense that the
defendant has been previously convicted of an offense under
this chapter, Chapter 19, or Section 20.03, 20.04, or 21.11
against a person whose relationship to or association with the
defendant is described by Section 71.0021(b), 71.003, or
71.005, Family Code; and
(3) the offense is committed by intentionally, knowingly,
or recklessly impeding the normal breathing or circulation of
the blood of the person by applying pressure to the person’s
throat or neck or by blocking the person’s nose or mouth.
Tex. Penal Code Ann. § 22.01 (b-1) (West 2011) (current version in
Tex. Penal Code Ann. § 22.01 (b-3) (West 2019). The Florida conviction
then would further enhance the punishment for an offense under then
section (b-2) to a first degree felony punishment range. The range of
punishment for a first degree felony is 5 to 99 years or life imprisonment.
19
Tex. Penal Code Ann. § 12.32 (West 2011). In short, a misplaced
paragraph saved Petitioner from facing life in prison. Petitioner should
have, and easily could have, faced a first degree punishment range on
count one at the time of trial, and would have had he successfully secured
a new trial on appeal.
The State wishes to make it clear that it is not arguing that
Petitioner would not have had a viable appeal. The State does not know
what issues would have been presented on appeal, and would not attempt
to argue them if it did; that would be clearly outside of this Court’s
strictures in Garza. Rather, it goes toward Petitioner’s credibility. The
inadvisability of appealing under these circumstances was likely a factor
that was expressed to Petitioner at the conclusion of his trial, and a detail
which trial counsel would likely be unable to remember two years later.
II. The Court of Criminal Appeals decision in this case
explicitly invoked its decision in Jones v. State, which advances
the same rule as Garza; the result would be the same whether or
not the Court of Criminal Appeals was aware of Garza.
The recommendations of a trial court in an 11.07 writ are exactly
that; the Court of Criminal Appeals may rely upon them and anything
else in the record in reaching their conclusion. “In article 11.07 habeas
cases, [the Court of Criminal Appeals] is the ultimate finder of fact; the
20
trial court's findings are not automatically binding upon us, although we
usually accept them if they are supported by the record.” Ex parte Garcia,
353 S.W.3d 785, 787 (Tex. Crim. App. 2011). The Court of Criminal
appeals stated that it agreed with the trial court’s finding that trial
counsel was not deficient, but did not go into depth about the trial court’s
or its own findings.
In this respect the Court of Criminal Appeals’ opinion is very brief
and admittedly slightly confusing. The Court states that “[o]n remand,
trial counsel responded in a sworn affidavit, and based on that affidavit,
the trial court found, among other things, that trial counsel did not
remember whether Applicant asked him to file an appeal. The trial court
recommended that we deny relief. We agree. Given the trial court's
finding, Applicant has not shown that trial counsel was deficient.” Ex
parte Jordan, No. WR-89,080-01, 2019 Tex. Crim. App. Unpub. LEXIS
99, *1 (Tex. Crim. App. Feb. 27, 2019). The affidavit and the trial court‘s
findings are referenced, but the Court does not state what the affidavit or
findings stated or what else may have appeared in the record that led the
Court to the conclusion that Petitioner had not demonstrated that trial
counsel was deficient. As discussed above, Petitioner claimed that a
21
consultation took place but that trial counsel refused to file the notice
when told to do so, and trial counsel’s affidavit said that he always files
the notice when told, even if he intends to withdraw. Trial counsel’s
discussion of his usual practice does not appear in the Court of Criminal
Appeals’ order. The only mention of trial counsel’s affidavit is that
“among other things, that trial counsel did not remember whether
Applicant asked him to file an appeal” which standing alone sounds a
great deal more damning than what trial counsel actually stated in his
affidavit.
Trial counsel did not merely make a flippant statement that
he did not remember whether Petitioner asked him to file an appeal; he
stated that he did not remember any specific discussions with Petitioner
at all because the case concluded over two years ago. The Court’s opinion
did not expressly recite the facts that would indicate that Petitioner did
not ask trial counsel to file an appeal and did not desire to do so: trial
counsel had previously told Petitioner that he would not be on his appeal,
that unlike other cases where a defendant wanted to appeal he had
received no communication from Petitioner or his family for over two
years, and most importantly, that it is his usual practice when a
22
defendant wants to appeal to file the notice to preserve appellate
deadlines and then withdraw.
The omission of trial counsel’s usual practice of filing the notice
when a defendant wants to appeal makes the order’s final paragraph
confusing, as it reads like a dressing down of trial counsel for putting the
onus of filing the notice on the defendant when that is not what occurred
in the case. The sentence that the Court took issue with was the last
sentence in trial counsel’s affidavit, that Petitioner “needed to take action
on his own to perfect that appeal.” However, trial counsel had earlier said
(and the Court appeared to accept) that he in fact does file the notice
when told that the defendant wants to appeal. Taken in that light
counsel’s statement that the Petitioner needed to take action on his own
to perfect his appeal seems to indicate that Petitioner had expressed that
he either did not or may not want to appeal, and trial counsel had told
him that he needed to take action if he changed his mind. Because it does
not appear that trial counsel filed a formal motion to withdraw, this could
have been problematic had Petitioner changed his mind while trial
counsel was still his attorney of record; the Court’s admonition appears to
be a warning that in the future counsel needs to be aware that the duty to
23
file the notice of appeal should a defendant change his mind remains with
trial counsel until withdrawal.
The Court of Criminal Appeals’ jurisprudence regarding the duties
and obligations of trial counsel regarding the preservation of a
defendant’s right to appeal is wholly consistent with the direction of this
Court in Garza. The Court of Criminal Appeals’ rule is articulated in the
case that was citied in Petitioner’s order, Jones v. State, 98 S.W.3d 700
(Tex. Crim. App. 2003), which in turn quoted extensively from its
previous holding in Ex parte Axel, 757 S.W.2d 369 (Tex. Cr. App. 1988):
Recognizing that in order “for an unknowing defendant
to learn of his appellate rights someone must advise him of
them,” we indicated that “trial counsel is not only the best
source of such advice but also that it is his duty as an attorney
to give it[.]” [Axel at 373]. Trial counsel’s representation does
not end upon sentencing, but rather, continues in the form of
advising the defendant as to his right to appeal and assisting
him in making an informed decision whether to exercise that
right. Id. We held:
Trial counsel, retained or appointed, has the duty,
obligation and responsibility to consult with and fully to
advise his client concerning meaning and effect the judgment
rendered by the court, his right to appeal from that judgment,
the necessity of giving notice of appeal and taking other steps
to pursue an appeal, as well as expressing his professional
judgment as to possible grounds for appeal and their merit,
and delineating advantages and disadvantages of appeal.
24
Trial counsel's responsibilities consist of a two-step
process. First, the attorney must ascertain whether the
defendant wishes to appeal. The decision to appeal lies solely
with the defendant, and the attorney’s duty is to advise him
as to the matters described above. If the defendant does not
wish to appeal, trial counsel’s representation ends. If the
defendant decides to appeal, the attorney must ensure that
written notice of appeal is filed with the trial court. At this
point, trial counsel has two options. He may sign the notice
himself, in which case, he effectively “volunteers” to serve as
appellate counsel. Id. Alternatively, the defendant may file
the notice pro se, which serves as “an indication that trial
counsel ‘does not wish to pursue his client's appeal.’” Id.
(quoting Ward v. State, 740 S.W.2d 794 (Tex. Crim. App.
1987)) A “contemporaneous” presentation of the pro se notice
with a motion to withdraw by trial counsel serves as actual
notice to the trial court of the defendant's desire to appeal. Id.
Jones, 98 S.W.3d at 701-02. Jones requires the attorney to consult
with and advise the defendant regarding an appeal, to ascertain whether
the defendant wishes to appeal, and to ensure the notice of appeal is filed
if the defendant decides to do so. This is sufficient to meet this Court’s
requirements under Garza, and the evidence is such that the trial court
and Court of Criminal Appeals could reasonably conclude that is what
happened in Petitioner’s case.
Although the delay in filing is not mentioned in the Court of
Criminal Appeals order in the instant case, it is another factor which
casts doubt on the credibility of Petitioner’s claim that his trial counsel
25
refused to file the notice when instructed, and is a factor which the Court
of Criminal Appeals’ jurisprudence recognizes.
It is a long standing
Texas rule that “an applicant's delay in seeking habeas corpus relief may
prejudice the credibility of his claim.” Ex parte Young, 479 S.W.2d 45, 46
(Tex. Crim. App. 1972). The Court of Criminal Appeals considered this
rule in the context of a delayed claim of ineffective assistance for failing to
file a notice of appeal in Ex parte Galvan, 770 S.W.2d 822, 824 (Tex.
Crim. App. 1989), decided between Axel and Jones. The Court of Criminal
Appeals noted that that case also rested on a credibility determination
between the defendant and his trial counsel, which the trial court
resolved in the favor of the latter: “[e]vidently, the trial court, at least in
part, elected to believe the affidavit of the trial lawyer rather than the
allegations of the applicant. This is his function and prerogative and the
record supports this conclusion.” Galvan, 770 S.W.3d at 824. The Court
further noted that the defendant’s lengthy silence casted doubt on his
credibility: “[a]lmost six years have passed since the applicant was
convicted in this case and he has never complained previously that he
was denied an appeal.” Id. Although the Court firmly stated that it would
never impose a time limit on a claim for relief, it observed that
26
“[n]evertheless, ‘a petitioner’s delay in seeking relief can prejudice the
credibility of his claim.’” Id. (quoting Ex parte Rocha, 482 S.W.2d 169
(Tex. Crim. App. 1972)). In the instant case the delay in seeking relief
was accompanied by trial counsel’s statement that he never received any
correspondence or communication from Petitioner and the absence of any
correspondence with the trial court in the file.
The Court of Criminal Appeals’ case law recognizes that a situation
may arise in which trial counsel did not withdraw and in which a
defendant may decide to appeal during the thirty day period. In the most
recent case regarding trial counsel’s alleged deficiency in filing the notice,
Ex parte Mitchell, No. WR-89,785-01, 2019 WL 3315851, 2019 Tex. Crim.
App. Unpub. LEXIS 433 (Tex. Crim. App. July 24, 2019), the Court
remanded the case back to the trial court to correct an error in one of the
affidavits, but appeared to approve of the trial court’s reasoning that
failure to withdraw could rise to the level of deficiency if the defendant
changed his mind:
However, the habeas court finds that counsel did not
affirmatively withdraw from the case and so he remained
Applicant's counsel on appeal. See Ward v. State, 740 S.W.2d
794, 798 (Tex. Crim. App. 1987). Trial counsel represented
Applicant during the critical stage for filing a motion for new
trial or notice of appeal. Accordingly, counsel had a continuing
27
obligation to fully advise and assist Applicant in protecting his
appellate rights.
The [trial court] finds that Applicant did not initially
inform counsel that he wanted to appeal, but Applicant
changed his mind while counsel still represented him. Counsel
was unaware that Applicant wanted to appeal because he had
no contact with Applicant after they met in the holding cell
immediately after sentencing. The [trial court] concludes that
the lack of a timely motion for new trial or notice of appeal is
evidence that Applicant was denied the practical assistance of
counsel in protecting and preserving his appellate rights, and,
therefore, Applicant should be granted an out-of-time appeal.
Id. at *3. Taken in this light, the Court of Criminal Appeals
admonition to Petitioner’s defense counsel makes a great deal more
sense. Because trial counsel did not file a formal notice of withdrawal, the
duty to file the notice of appeal remained with him if Petitioner changed
his mind within the 30 day period.
However, this is not what happened here. It is not even what
Petitioner claims happened. Petitioner did not claim that he changed his
mind about an appeal while trial counsel still represented him, he stated
that he conferred with his trial counsel, that he instructed trial counsel to
file an appeal, that trial counsel refused, and Petitioner did not tell the
trial court or anyone else two weeks or two years later. The trial court did
not find his story credible, and the Court of Criminal Appeals agreed that
28
the trial court’s finding was reasonable. The Court of Criminal Appeals’
ruling is wholly consistent with this Court’s directive in Garza. There is
no meritorious issue for review.
CONCLUSION
The petition for writ of certiorari should be denied.
Respectfully submitted,
James Hicks
Criminal District Attorney
Taylor County, Texas
BY: _____________________ ______
BRITT HOUSTON LINDSEY
Assistant Criminal District Attorney
Counsel of Record
Appellate Section
State Bar No. 24039669
300 Oak Street, Suite 300
Abilene, Texas 79602
325-674-1376
325-674-1306 FAX
LindseyB@taylorcountytexas.org
Attorneys for Respondent
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.