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San Jacinto News-Times - Local News
Stories Added - June 2010
Copyright 2010 - Polk County Publishing Company

Man sentenced to 10 years in prison gets case overturned
San Jacinto News- Times

COLDSPRING – Texas Court of Criminal Appeals overturned a case against an Oakhurst resident convicted Jan. 18, 2008 of terroristic threat and sentenced to 10 years in prison on a Class A misdemeanor, according to a June 9, 2010 opinion from the Texas Court of Criminal Appeals. In the opinion, the appeals court states, “The indictment in this case charged Robert E. Henderson with a misdemeanor offense under Texas Penal Code Sec. 22.07 (a) (2). Henderson pleaded nolo contendere (no contest) pursuant to the indictment. The trial court sentenced Henderson to 10 years’ imprisonment on a Class A misdemeanor: Texas Penal Code Paragraph 22.07 (c) (2).” Punishment for a Class A misdemeanor is a fi ne not to exceed $4,000; confi nement in jail for a term not to exceed one year; or both such fi ne and confi nement. Henderson has served more than two years in prison for the offense. The appeals court further states, “Relief is granted. The judgment in Cause No. 9466- A in the 411th Judicial District Court of San Jacinto County is set aside and Henderson is remanded to the custody of the sheriff of San Jacinto County to answer the charges as set out in the indictment.” San Jacinto County Assistant Criminal District Attorney Jonathan Petix declined Friday to comment on the case and what might happen next, saying, “It is ongoing.” The indictment states that Henderson threatened to shoot former San Jacinto County Chief Deputy Lenard Johnson while Johnson was responding to an attempted suicide call on August 4, 2006, at 1801 Pierce Road, Oakhurst. Case background Former San Jacinto County Deputy Constable, Pct. 4 Jessie Neuman was among the fi rst of many law enforcement agencies responding to a call about 11:51 a.m. on Friday, Aug. 4, 2006. Neuman said when he arrived on the scene, “I saw Henderson sitting in a rocking chair on the front porch, holding a pistol in front of him with the barrel pointed toward his throat. Henderson said he had the pistol tied to a cable around his neck and had a small rope tied to the trigger with a heavy socket on the other end. The way the pistol was rigged, it was to fi re by pulling the trigger or dropping the weight. Henderson also had the hammer of the pistol cocked and was holding the hammer. I noticed that Henderson had tied a broom across the front door of the house so that no one could come through the door.” Neuman said that former San Jacinto County Chief Deputy Lenard Johnson was the fi rst to join him at the scene, followed by many others. “Henderson insisted that all other offi cers leave,” Neuman said. According to Neuman, he and former Constable Lou Rogers were among four whom Henderson allowed to stay in the yard. “Henderson refused to remove the pistol or let anyone approach him. He stated that everything was going to end today, that he was not going to hurt anyone, but that we would have to shoot him or he would shoot himself. He asked me to shoot him several times,” Neuman said. Henderson was fi nally taken into custody after about six hours by throwing a concussion grenade under his chair and then rushing him. “When the grenade exploded, Henderson was temporarily stunned, but then grabbed the pistol, placed it under his throat and began pulling the trigger at least three or four times. The pistol did not fi re because the drop rope around the trigger had gotten between the hammer and the gun butte. The hammer fell, striking and scaring the bullet but the rope would not let the firing pin drop to the firing point. The gun was removed from Henderson and taken as evidence by the sheriff’s department,” Neuman said. “While being placed in handcuffs, Henderson stated that this is not over and it has not ended,” Neuman added. In the following months, Henderson would undergo forensic psychological evaluations ordered by 411th Judicial District Judge Robert Hill Trapp and later by 258th Judicial District Judge Elizabeth Coker to determine if he was sane or insane at the time of the offense and to determine if he was competent to stand trial. During a competency hearing on Jan. 31, 2007 Judge Coker determined, based on a psychological evaluation, that Henderson was incompetent to stand trial and committed him to North Texas State Hospital in Vernon, Texas for treatment. His psychiatrist, Dr. Saunders, determined that Henderson was incompetent to stand trial because he did not have a rational understanding of the court proceedings and had a substantially impaired ability to communicate and assist counsel in his own defense or personally defend his own interests. The doctor noted Henderson’s medical history of having suffered from a severe stroke and noninsulin diabetes. On Jan. 18, 2008, the case went to trial and Henderson entered a plea of “no contest” to the indictment. Prior to the trial and at Henderson’s request, attorney Travis Kitchens had been appointed by Judge Coker to represent him. Kitchens assumed Henderson’s representation on Oct. 3, 2007, following the dismissal of the first court-appointed attorney Scott Pawgan who was also appointed to represent Henderson by Judge Coker on Nov. 1, 2006. Dr. Gaines, one of the two court-appointed psychiatrists to evaluate Henderson, reported to the court that Henderson is still not competent to stand trial but the court accepts a stipulation from Henderson’s newly appointed attorney Kitchens that he is competent to stand trial. On Feb. 27, 2008 the court held a punishment hearing after which the court sentenced Henderson to the maximum 10 years in prison. That day the court certified that Henderson had a right to appeal only the sentence. On March 17, 2008, Kitchens sends Judge Coker a waiver of appeal stating, “I believe that he (Henderson) understands his right to an appeal and that he has effectively and intelligently waived his right of appeal.” By March 28, 2008, Henderson rejected representation by Kitchens and asked Judge Coker to have local attorney Richard Burroughs to represent him. By April 25, 2008, Burroughs had the case, filing for a motion for reconsideration of a new trial and/or reduction of the sentence and order. A few weeks later, on May 12, 2008, Judge Coker transferred the case back to Judge Trapp for a hearing on the motion for a new trial. The motion was denied, following the hearing. On Nov. 4, 2009, the 9th District Court of Appeals entered a memorandum opinion dismissing the appeal for want of jurisdiction, holding that it did not have jurisdiction of the appeal because Henderson had entered into a plea bargain agreement and therefore had no right to appeal even though the trial court’s initial certification stated he had the right to appeal the sentence only. On Nov. 19, 2009, a motion for rehearing was filed by Burroughs on behalf of Henderson and the motion for rehearing was denied on or about Nov. 25, 2009. On Dec. 17, 2009 Henderson filed a petition for discretionary review in the Texas Court of Criminal Appeals. The petition was refused March 24, 2010. On June 9, 2010, the Texas Court of Criminal Appeals finally acknowledged that Henderson was wrongly sentenced under the Texas Code of Criminal Procedure and set aside his judgment in Cause No. 9466-A in the 411th Judicial District Court of San Jacinto County. Burroughs’ slams Henderson’s trial attorney, calling him a 6th Amendment ornament “This case is a travesty of justice. Henderson has been incarcerated for almost four years on a charge that, at most, was a Class A misdemeanor for which he should have received, at most, one year in the county jail. Even prior to his trial he had already been held in custody for 18 months. He has since been held in the Texas Department of Criminal Justice for more than two years even though he is very ill,” Burroughs stated. “His court-appointed trial counsel, Travis Kitchens, was a 6th Amendment ornament who did not even deserve his paltry wages for the meager effort that he put forth in Henderson’s defense. “Even a cursory review of Texas Penal Code Paragraph 22.07 by anyone who can read English would show that Henderson was being wrongfully charged with a third-degree felony when the crime set forth in the indictment was only a Class A misdemeanor. Kitchens apparently made no effort to do this, for all he had to do was file a pre-trial motion attacking the indictment and Henderson would have either been freed or the State of Texas would have had to re-evaluate how to proceed against him. “Kitchens compounded his incompetence by stipulating that Henderson was competent to stand trial when the court’s own expert witness had filed a report that he was incompetent. “Then, during the punishment hearing, Kitchens failed to asks the court to withdraw Henderson’s no contest plea and enter a not guilty plea when all of the evidence presented showed that Henderson had, in fact, not threatened the alleged victim as stated in the indictment,” Burroughs stated. Burroughs’ arguments In his arguments to the Texas Court of Criminal Appeals, Burroughs said that Henderson did not receive effective assistance of counsel at his trial. “To prevail on a claim of ineffective assistance of counsel, an appellant must establish that his lawyer’s performance fell below an objective standard of reasonableness and that there is a reasonable probability the result of the proceeding would have been different but for counsel’s deficient performance. “In this case Henderson was charged by indictment with terroristic threat pursuant to Texas Penal Code Paragraph 22.07. Although the indictment purported to charge him with a third-degree felony in the caption, the elements actually set forth in the indictment charged only a class A misdemeanor,” Burroughs stated. Burroughs said he believes that the case should be referred to the trial court for a hearing to receive further evidence regarding the issue of whether trial counsel for Henderson provided ineffective assistance by (a) failing to attack a fatally defective indictment, which failure exposed Henderson to a much greater sentence than the crime for which he was actually accused in the indictment’s written elements; (b) offering a stipulation that Henderson was competent to stand trial when there was ample evidence available from a court-appointed expert witness that Henderson was not competent to stand trial and the burden of proof was on the State of Texas to prove that Henderson was competent to stand trial; (c) failing to advise the court of its duty to withdraw the no contest plea and enter a not guilty plea for Henderson when evidence was introduced at the punishment hearing that showed the accused was actually innocent of the crime charged in the indictment; and/ or (d) having Henderson sign a waiver of his right of appeal when there were meritorious issues for appeal. Burroughs states that the 258th District Court did not have jurisdiction of this case because the indictment, on its face, charged Henderson only with a misdemeanor. Because the court had no jurisdiction Henderson should be immediately discharged. “Alternatively, if the trial court did have jurisdiction of the case, the indictment still only charged a Class A misdemeanor offense and the 10-year prison sentence was therefore contrary to law, because the maximum punishment for a Class A misdemeanor is one year in the county jail,” Burroughs stated. “The trial court erred in finding Henderson competent to stand trial at a pre-trial hearing on or about Dec. 8, 2007, because there was no evidence in the record to support the finding and, in fact, there was sufficient evidence before the court that he was not competent to stand trial. If he was in fact incompetent to stand trial then the entire proceeding violated his rights to due process under the 5th and 14the Amendments to the Constitution of the United States and Texas Constitution, Article I, Section 19,” Burroughs states. “Under these circumstances the trial court had a duty to investigate further whether Henderson was competent instead of just accepting defense counsel’s stipulation. Texas Code of Criminal Procedure imposes that duty on the trial court,” Burroughs states. “The trial court committed error by not withdrawing Henderson’s no contest plea and entering a plea of not guilty after hearing uncontroverted evidence at the punishment hearing that he was actually innocent of the offense charged in the indictment,” Burroughs states. According to Burroughs, five different witnesses testified at the sentencing hearing on Feb. 2, 2008, Charlie Pierce, Jesse Newman, Matt McGregor, Brenda Curry, Leonard Johnson and Lacy Rogers. All were at the scene of the standoff on Aug. 4, 2006. All but Brenda Curry were law enforcement officers. Each testified that they never saw Henderson point the gun at them or at anyone but himself. Burroughs said the State of Texas introduced into evidence two dash-cam videos of the incident. And neither of those videos show Henderson threatening harm to Chief Deputy Johnson or anyone else at the scene. “The most he does is warn them to stay back or he will shoot himself,” Burroughs states. “The evidence as a whole tended to show that Henderson was not guilty of the offense of terroristic threat. Therefore, the court had a duty to set aside his no contest plea and enter a plea of not guilty. Instead the court proceeded to find Henderson guilty and sentence him to the maximum prison term possible for a third degree felony,” Burroughs states.


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