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ACCEPTED
01-18-00417-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/11/2018 2:43 PM
CHRISTOPHER PRINE
CLERK

CAUSE NO. 01-18-00417-CR
____________________
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FOR THE FIRST SUPREME JUDICIAL DISTRICTHOUSTON, TEXAS
AT HOUSTON 12/11/2018 2:43:42 PM
____________________ CHRISTOPHER A. PRINE

Clerk

PASCAL DEWAYNE GARRIOTT

Appellant,

Vs.

STATE OF TEXAS,

Appellee

____________________
Appealed from the 253RD District Court
Of Chambers County, Texas

Cause Number 18876

____________________

APPELLANT’S BRIEF
__________________

TOM ABBATE

2323 SOUTH VOSS RD SUITE 360
HOUSTON, TX 77057
TEL: 713.223.0404

FAX: 800.501.3088
EMAIL: tom@tomabbatelaw.com
SBOT # 24072501

ORAL ARGUMENT NOT REQUESTED

IDENTITIES OF PARTIES AND COUNSEL

APPELLANT:

MR. PASCAL DEWAYNE GARRIOTT

PRESIDING JUDGE:

HON. CHAP B. CAIN, III
407 South Street
Anahuac, Texas 77514
409-267-2750

PROSECUTOR:

MR. DANE LISTI

MR. WILLIAM “ED” SHETTLE, III
MR. ERIC CARCERANO
Chambers County District Attorney’s Office
PO BOX 1409
Anahuac, Texas 77514
409-267-2682

TRIAL COUNSEL:

MR. MARK ARONOWITZ
PO BOX 1201
Texas City, Texas 77592
281-402-6780

APPELLATE COUNSEL:

MR. TOM ABBATE

2323 South Voss Rd. Ste 360
Houston, Texas 77057
(713) 223-0404

TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ii

INDEX OF AUTHORITIES iv

STATEMENT OF THE CASE 1

STATEMENT REGARDING ORAL ARGUMENT 2

ISSUES PRESENTED 3

STATEMENT OF FACTS 3

SUMMARY OF THE ARGUMENT 7

ARGUMENT AND AUTHORITIES 8

ISSUE FOR REVIEW I 8

Appellant was deprived of his Sixth Amendment right to effective assistance of counsel
when trial counsel elicited incriminating information from two witnesses during the
guilt/innocence phase of trial 8

The Law Regarding Ineffective Assistance of Counsel 8

The Law Regarding Ineffective Assistance on Direct Appeal 9

Analysis 11

CONCLUSION AND PRAYER 17

CERTIFICATE OF SERVICE 18

CERTIFICATE OF COMPLIANCE 19

iii

INDEX OF AUTHORITIES

Cases
Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App. 2005) 10, 14
Bone v. State, 77 S.W.3d 828 (Tex.Crim.App. 2002) 9
Ex parte Imoudu, 284 S.W.3d 866 (Tex.Crim.App. 2009) 8
Ex parte Varelas, 45 S.W.3d 627 (Tex.Crim.App. 2001) 9
Frangias v. State, 450 S.W.3d 125 (Tex.Crim.App. 2013) 9
Goodspeed v. State, 187 S.W.3d 390 (Tex.Crim.App. 2005) 10, 14
Profitt v. Waldron, 831 F.2d 1245 (5th Cir. 1987) 8
Rylander v. State, 101 S.W.3d 107 (Tex.Crim.App. 2003) 9
State v. Morales, 253 S.W.3d 686 (Tex.Crim.App. 2008) 10, 14
Strickland v. Washington. 466 U.S. 668 (1984) passim

Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App. 1999) 9
Williams v. Taylor, 529 U.S. 362 (2000) 9
Wright v. West, 505 U.S. 277 (1992) 9

Rules
Tex. R. App. P. 39.7 2
Tex. R. App. P. 9.4 19

CAUSE NO. 01-18-00417-CR

____________________

IN THE COURT OF APPEALS

FOR THE FIRST SUPREME JUDICIAL DISTRICT

AT HOUSTON

____________________

PASCAL DEWAYNE GARRIOTT

Appellant,

Vs.

STATE OF TEXAS,

Appellee

____________________
Appealed from the 253RD District Court
Of Chambers County, Texas

Cause Number 18876

____________________

APPELLANT’S BRIEF

TO THE HONORABLE FIRST COURT OF APPEALS:

NOW COMES, TOM ABBATE, Counsel for Appellant in the above entitled and numbered cause, files this Appellant’s Brief, and would respectfully show the following:

STATEMENT OF THE CASE

This is an appeal from the Trial Court’s JUDGMENT OF CONVICTION BY JURY finding Appellant GUILTY of the offense of DRIVING WHILE INTOXICATED TWO PRIOR CONVICTIONS entered on MAY 23, 2018. (CLRK. REC. – 126-127). On MAY 21, 2018, Appellant entered a plea of not guilty

to the offense before a jury sworn that same day. (RR.II – 138, 146). After hearing the evidence and arguments of the parties, the jury found Appellant guilty as charged in the indictment. (RR.IV – 74). After hearing the evidence and arguments of the parties during the punishment phase, Appellant was sentenced to sixty (60) years confinement with the Texas Department of Criminal Justice without a fine. (RR.IV
– 125-128).

On MAY 23, 2018, appellant timely filed a NOTICE OF APPEAL. (CLRK.REC. – 131). The Notice was accepted and the case was given the above referenced appellate cause number. Appellant has not filed a MOTION FOR NEW TRIAL, an APPLICATION FOR WRIT OF HABEAS CORPUS, or any other original appellate or collateral proceeding in this cause.

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Texas Rule of Appellate Procedure 39.7, Appellant does not request oral argument. Counsel does not believe oral argument would serve to emphasize and clarify the important legal points regarding this appeal.

ISSUES PRESENTED

ISSUES FOR REVIEW

Appellant was deprived of his Sixth Amendment right to effective assistance of counsel when trial counsel elicited incriminating information from two witnesses during the guilt/innocence phase of trial.

STATEMENT OF FACTS

The State’s first witness was Anjeanette Taylor, who testified that she made the initial 911 call to report a truck failing to maintain a single lane of traffic on I-10 just outside of Winnie on January 12, 2016. (RR.III – 36-37). Taylor further testified that other vehicles were forced to veer off the road to avoid colliding with the truck. (RR.III – 37). Finally, Taylor stated that the truck was not exhibiting “normal driving behavior” and that she believed the vehicle was being operated in an unsafe manner. (RR.III – 41).

The State next called Trooper Dustin Blackburn with DPS. (RR.III – 47). Blackburn positively identified Appellant as the driver of the truck he pulled over based on the 911 call. (RR.III – 50, 60). Blackburn further stated that Appellant took longer than average for someone to pull over, and that he noticed signs of impairment upon speaking with him. (RR.III – 50-51). Further, Blackburn determined that Appellant’s driver’s license was suspended due to surcharges. (RR.III – 51).

After having a conversation with the Appellant, Blackburn decided to perform SFSTs to determine whether Appellant was driving while intoxicated. (RR.III – 52). Blackburn stated that he performed a HGN and found nothing conclusive. (RR III – 53). However, Appellant performed poorly on both the walk-and-turn and one-leg-stand tests. (RR.III – 54-55, 57).

Blackburn then decided to perform some non-standardized sobriety tests based on Appellant’s admission of being involved in a car crash a few months prior to the stop. (RR III – 57). Blackburn told Appellant to say his ABCs between “D” and “X” and not sing them. (RR III – 58). Blackburn then administered a “finger count” test instructing Appellant to count his fingers forwards and backwards. (RR.III – 59). Blackburn stated that, due to Appellant’s poor performance on both tests, he decided to arrest Appellant for DWI. (RR.III – 58-60).

Blackburn further stated that Appellant, prior to submitting to the SFSTs, initially denied taking any medication or drugs that day. (RR.III – 69). Appellant later admitted to taking Hydrocodone and Ibuprofen. Id. However, Appellant maintained that he had taken them “earlier that morning.” (RR.III – 70).

On cross-examination, Blackburn stated that he made contact with the passenger of Appellant’s vehicle, Melissa Hargraves. (RR.III – 88). Based on his interaction with her, Blackburn determined that she was also impaired. (RR.III – 91).

Ultimately, Hargraves was also arrested. Id.1

The State’s final witness was Dana Baxter, a toxicologist with DPS. (RR.III

– 112-113). Baxter stated that, based on the tests administered to the blood sample in this case, it was determined that Appellant had alprazolam (Xanax), benzoylecgonine (a cocaine metabolite), carisoprodol (Soma), and meprobamate, in his system. (RR III – 120-124). Baxter further stated that alprazolam, carisoprodol, and meprobamate are all CNS depressants, and cocaine can either be a CNS stimulant or depressant as it works through a person’s system. (RR.III – 128). Finally, Baxter stated that the specific combination of drugs would likely cause drowsiness, mental confusion, dizziness, slurred speech, and vision problems. (RR.III – 129).

On cross-examination, Baxter stated that a particular study had indicated that 1 milligram doses of Xanax could lead to driving impairment. (RR.III – 143).

However, although less than one milligram of Xanax was found in Appellant’s blood, the concentration in the blood would not necessarily be one-to-one – other studies had shown that a 1 milligram tablet of Xanax would generally result in a concentration of 0.019 milligrams per liter. (RR.III – 144). Baxter had already agreed that Appellant had 0.62 milligrams per liter of Xanax in his blood at the time of the test. (RR.III – 141).

1 Presumably for public intoxication.

Still on cross, Baxter further stated that studies have shown that the combination of carisoprodol and meprobamate at concentrations greater than 10 milligrams per liter can lead to impaired behaviors when someone is driving. (RR.III

– 152). Baxter had already affirmed that Appellant had 2.8 milligrams per liter of carisoprodol and 10 milligrams per liter of meprobamate in his blood at the time of testing. (RR.III – 150-152). Finally, based on defense counsel’s questioning, Baxter

affirmed that a person who had taken CNS depressants within the “therapeutic range” would appear “disoriented and sluggish,” would exhibit “thick slurred speech,” would be drowsy, and could still be impaired such that they should not be driving. (RR.III – 154-156).

The defense’s only witness was Cynthia Garriott, the Appellant’s sister. (RR.IV – 7-9). Garriott testified that the Appellant had been injured at work and in an unrelated car accident prior to the night of the stop. (RR.IV – 10-11). Garriott further stated that Appellant displayed noticeable differences in his cognitive ability after the car accident and had suffered permanent nerve damage in his face. (RR.IV
– 13).

Further, Garriott stated that Appellant had been prescribed certain medication after these two incidents and that she did not believe Appellant was in a condition to, and should not have been, driving at the time of the stop. (RR.IV – 14-15, 17). In response to questioning by the prosecutor, Garriott stated she meant Appellant

should not be driving because his license was suspended. (RR.IV – 25). However, she admitted that she did not know his license was suspended at that time. (RR.IV – 25-26).

SUMMARY OF THE ARGUMENT

Appellant asserts he was deprived of his Sixth Amendment right to effective assistance of counsel when trial counsel elicited incriminating information from two witnesses during the guilt/innocence phase of trial. Appellant asserts that the conduct was so outrageous no competent attorney would have engaged in it, and, that there was no reasonable trial strategy in eliciting incriminating testimony from the two witnesses. Further, Appellant asserts that he was prejudiced by trial counsel’s actions because the testimony elicited by trial counsel only served to strengthen the State’s case against him. Therefore, the judgment against Appellant should be reversed and the case remanded for a new trial.

ARGUMENT AND AUTHORITIES

ISSUE FOR REVIEW I

Appellant was deprived of his Sixth Amendment right to effective assistance of counsel when trial counsel elicited incriminating information from two witnesses during the guilt/innocence phase of trial.

The Law Regarding Ineffective Assistance of Counsel

In order to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in Strickland v. Washington. 466 U.S. 668, 687-88 (1984); see also Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex.Crim.App. 2009) (orig. proceeding). The first prong requires a showing that counsel’s performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. This requirement can be difficult to meet since there is “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. “This measure of deference, however, must not be watered down into a disguised form of acquiescence.” Profitt
v. Waldron, 831 F.2d 1245, 1248 (5th Cir. 1987).

Under the second Strickland prong, to which reference is sometimes made as “the prejudice prong,” “a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Strickland, 466 U.S. at 693. Yet, “[i]t is not enough for the [appellant] to show that the errors had some

conceivable effect on the outcome of the proceeding.” Ex parte Varelas, 45 S.W.3d 627, 629 (Tex.Crim.App. 2001) (quoting Strickland, 466 U.S. at 693). Rather, the second prong requires a showing that, but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694. “A reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.” Id. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact[-]finder would have had a reasonable doubt respecting guilt.” Id. at 695. The second Strickland prong is examined by judging the totality of counsel’s representation. Id.; Frangias v. State, 450 S.W.3d 125, 136 (Tex.Crim.App. 2013).

A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). The Strickland test “of necessity requires a case-by-case examination of the evidence.” Williams v. Taylor, 529 U.S. 362, 382 (2000) (quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring in judgment)).

The Law Regarding Ineffective Assistance on Direct Appeal

Allegations of ineffectiveness “must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999)). When a claim of ineffective assistance of

counsel is raised for the first time on direct appeal, the record “is in almost all cases inadequate to show that counsel’s conduct fell below an objectively reasonable standard of performance.” Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App. 2005). Nevertheless, “when no reasonable trial strategy could justify the trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel’s subjective reasons for acting as she did.” Id.

Essentially, when a party raises an ineffective assistance of counsel claim for the first time on direct appeal, the defendant must show that “under prevailing professional norms,” no competent attorney would do what trial counsel did or no competent attorney would fail to do what trial counsel failed to do. Strickland, 466 U.S. at 690; Andrews, 159 S.W.3d at 102. The reviewing court must presume that trial counsel’s performance was adequate unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” State v. Morales,

253 S.W.3d 686, 696-97 (Tex.Crim.App. 2008) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005)). If there is a potential reasonable trial strategy that counsel could have been pursuing, a reviewing court on direct appeal cannot conclude that counsel performed deficiently. See Andrews, 159 S.W.3d at

103.

Analysis

As the record demonstrates, trial counsel’s questioning of the toxicology expert and the defense witness only served to strengthen the State’s case against Appellant. First, due to trial counsel’s questioning of the toxicology expert the jury heard that a 1 milligram pill of Xanax was enough to impair a person’s driving and that Appellant’s blood demonstrated that he may have taken more than a 1 milligram pill before driving. Based on Baxter’s testimony, a 1 milligram pill would likely result in a blood concentration of 0.019 milligrams per liter. However, Appellant’s concentration for Xanax was 0.62 milligrams per liter, nearly 32 times higher than what would be expected for a 1 milligram pill of Xanax. Therefore, due to defense counsel’s questioning, the jury heard evidence that Appellant may have taken more

Xanax than what had been administered in previous studies that had shown the effect of Xanax on a person’s driving. (RR.III – 141-144).

Second, due to defense counsel’s questioning, the jury also heard that Appellant was likely impaired due to the combined levels of carisoprodol and meprobamate. Defense counsel had elicited testimony showing that the combined level of two chemicals in Appellant’s blood was 12.8 milligrams per liter and that a study had shown impairment beginning when the combined level of the two chemicals reached 10 milligrams per liter. Therefore, due to defense counsel’s questioning, the jury heard that Appellant was likely impaired based on the combined level of carisoprodol and meprobamate. (RR.III – 150-152).

Third, defense counsel elicited testimony regarding the side effects of CNS depressants such as dizziness, drowsiness, and impaired driving. In fact, the prosecutor was able to revisit the rendition of the side effects to point out that, per FDA requirements, those side effects were specifically listed on the outside of the prescription bottle. (RR.III – 157). Therefore, due to defense counsel’s questioning, the jury heard that Appellant had been specifically warned, in writing, that his prescription medication, taken as directed would impair his ability to drive. (RR.III
– 154-156).

Finally, based on defense counsel’s questioning, the jury heard that even Appellant’s own sister did not believe he was capable of driving that night. Witness

Garriott then attempted to explain that she meant Appellant should not have been driving because his license was suspended, but was forced to admit that she did not know of the suspension prior to her testimony. This assertion of licensing suspension does not come across as credible even on a paper record. Therefore, due to defense counsel’s questioning, the jury received additional evidence with which it could convict Appellant. (RR.IV – 14-15, 17, 25-26).

Appellant further asserts that a review of the full record demonstrates that the prosecutor did not address the above issues independently of defense counsel. Essentially, defense counsel ventured into this territory of his own accord, and not in an attempt to raise inconsistencies or otherwise dispute testimony elicited by the prosecution. Therefore, the record demonstrates that defense counsel elicited incriminating testimony all on his own.

Further, Appellant was charged with DWI, and no lesser-included offense instruction was requested, alluded to, or available. Appellant concedes that there might be a reasonable trial strategy in eliciting incriminating testimony in order to prove that a defendant is guilty of a lesser-included offense to a given charge. However, lacking a requested lesser-included instruction, and lacking a lesser-included offense on which such an instruction could be requested, there is no reasonable trial strategy in eliciting incriminating evidence during the guilt/innocence phase of trial. Instead, Appellant asserts that the conduct of defense

counsel in this case was “so outrageous that no competent attorney would have engaged in it.” Morales, 253 S.W.3d at 696-97 (quoting Goodspeed, 187 S.W.3d at 392). Therefore, because there is no potential reasonable trial strategy that counsel could have been pursuing, this Court must conclude that counsel performed deficiently. See Andrews, 159 S.W.3d at 103.

Further, but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694. Although Appellant concedes that there was enough evidence for the jury to find him guilty absent the errors of trial counsel, there was still leeway for the jury to have a reasonable doubt regarding Appellant’s guilt based on the indictment’s requirements. In pertinent part, the jury was required to find Appellant guilty if it found that he was “operat[ing] a motor vehicle,” while “intoxicated by reason of introduction of alcohol, a controlled substance, a drug, a dangerous drug or a combination of these substances.” (CLRK.REC. – 71). Absent defense counsel’s questioning, the jury had heard that the side-effects of the drugs found in his blood, such as slurred speech and befuddlement, but there had been no direct testimony that the drugs found would impair a person’s driving, or that such impairment had been demonstrated in prior scientific studies.

However, once defense counsel started asking questions, the reasonableness of any such doubt quickly diminished to the point of nonexistence. Because of

defense counsel, the jury heard of studies showing impaired driving by reason of the introduction of alprazolam and a combination of carisoprodol and meprobamate. (RR.III – 141-144, 150-152). Because of defense counsel, the jury also heard that the amount of these chemicals in Appellant’s blood exceeded the level shown to cause impairment in those studies. Further, because of defense counsel, the jury heard evidence that the medications individually were known to cause impaired driving such that the FDA required warnings to that effect on the outside of the bottle. (RR.III – 154-157). Finally, because of defense counsel, the jury heard that, in her own un-scientific opinion, even the Appellant’s sister did not believe Appellant was in the proper condition to be driving. Therefore, any reasonable doubt the jury had respecting Appellant’s guilt evaporated due to the errors of defense counsel. Strickland, 466 U.S. at 695 (When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact[-]finder would have had a reasonable doubt respecting guilt).

Therefore, Appellant was deprived of his Sixth Amendment right to effective assistance of counsel when trial counsel elicited incriminating information from two witnesses during the guilt/innocence phase of trial. The record demonstrates that the conduct was so outrageous no competent attorney would have engaged in it, and, that there was no reasonable trial strategy in eliciting incriminating testimony from the two witnesses. Further, Appellant was prejudiced by trial counsel’s actions

because the testimony elicited by trial counsel only served to strengthen the State’s case against him. Consequently, the judgment against Appellant should be reversed and the case remanded for a new trial.

ACCORDINGLY, this Court should SUSTAIN Appellant’s ISSUE FOR REVIEW; VACATE the Trial Court’s JUDGMENT; and, REMAND the cause to the Trial Court below for a NEW TRIAL.

CONCLUSION AND PRAYER

For the foregoing reasons, the Appellant prays that this Honorable Court

SUSTAIN Appellant’s ISSUES FOR REVIEW; VACATE the Trial Court’s

JUDGMENT; and, REMAND the cause to the Trial Court below for a NEW TRIAL.

Appellant further prays for all relief to which he may be entitled.

Respectfully submitted,

__________________________________ TOM ABBATE

2323 South Voss Rd., Ste 360

Houston, Texas 77057

(713) 223-0404 SBOT # 24072501 Attorney for Appellant

CERTIFICATE OF SERVICE

This is to certify that on the day of DECEMBER 11, 2018 a true and correct copy of the above and foregoing Appellant’s Brief was served on the CHAMBERS County District Attorney’s Office, through the e-file service system.

__________________________________ TOM ABBATE

CERTIFICATE OF COMPLIANCE

This is to certify that the brief filed in case number 01-18-00417-CR complies with requirement of Tex. R. App. P. Rule 9.4(i)(3). According to the computer program used to prepare the document, the entire brief has the following number words: 3,714 including footnotes.

__________________________________ TOM ABBATE

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PASCAL DEWAYNE GARRIOTT vs. STATE OF TEXAS appellants brief