*1 I recovered, the record. believe jeans supported by on and body was her were factually insuf- in this case is fly was no evidence of the evidence closed. There above, capital support a torn a conviction of penetration. As noted back ficient to ways evidence is pocket may occur a number of I believe that murder. prove actual or at- for mur- unequivocally support does not to a conviction sufficient more, der, tempted sexual assault. Without as a lesser-includ- was included a the evidence is too weak to sustain ver- jury charge, in the trial court’s ed offense capital finding murder based on a dict for finding I make a but because would of sexual assault. in- insufficiency legal rather than factual to us sufficiency, only option available on the that Ronnie Again, reliance letter a new remand to the trial court for is to copied misplaced. Coleman Statements trial.4 letter, interpreted by in the as Per- bogus (“ ‘I began
ez to talk about sex when she I respectfully dissent. go she had to home.’ He hit her said eye, the left and she fell to the floor of her car.”), are not “sufficient to confirm rejection of advances Trotter’s his sexual began cycle of to her violence that led sex, Talking hitting
death.” about even following someone a conversation about sex, aggravated is not an sexual assault. RYLANDER, Appellant, Robert Again, illogical it is to both characterize v. copied forgery letter as a blatant cre- attempt escape punishment ated to The STATE of Texas. evidence, by creating phony and to then 739-02, 740-02, Nos. 741-02. proof use the letter as factual of sexual assault, Texas, especially Appeals fact that light of the Court of Criminal accurately the letter could not translat- En Banc. be produced ed. The state no evidence at 26, 2003. March supports trial that had consensual sexual intercourse with
Trotter, sexually much less that he as- I point
saulted her. would sustain of error number four. is, best, at a weak chain of infer-
There assumptions pointing to a con- ences and kidnapped clusion that or sexual- attempted either. ly assaulted Trotter or assumptions These inferences and are not reviewing judgment its for that of the fact 4. If a court determines that substitute insufficient, the defendant’s legally either finder since this would violate evidence is it must acquittal judgment right jury. Clewis at 133. Accord or reform the render reviewing ingly, a court must vacate convic a conviction of a lesser included of reflect factually evidence based on insufficient fense. See Clewis v. tion * at -, a new trial. Tibbs (Tex.Crim.App.1996); at and remand the cause for Herrin Florida, conducting sufficiency 457 U.S. 102 S.Ct. When a factual v. 25. however, (1982); review, 133. Clewisat court cannot L.Ed.2d *2 Antonio, Smith, for
Anthony Martin San Appellant. DA, Welsh, Anto- Asst. San
Mary Beth nio, Paul, Attorney, Aus- Matthew State’s tin, for State.
OPINION J., JOHNSON, opinion delivered P.J., KELLER, the Court which
KEASLER, PRICE, WOMACK, COCHRAN, JJ., joined.
HOLCOMB
Appellant
charged
separate
in three
aggra-
indictments with three offenses
state,
assumption
this
assault,
According to the
alleged
all
to have occurred
vated
absence, in the
based on the
appears
In a trial
to be
May
on or about
1999.
record,
subpoena
expert.
for a medical
all three
of a
jury, appellant was convicted of
assumption is that “au-
alleged
whereupon
pun-
assessed
The second
charges,
*3
defense. The state
tomatism” is a viable
years
at 20
incarceration for
ishment
servant,
support
not
that the record does
against
public
and
asserts
assault
argues
also
a conclusion. The state
incarceration for each of the other
such
years
that,
nothing in the record
there is
because
two assaults.
particu-
his
why counsel chose
to indicate
appeal, appellant’s sole issue assert-
On
action,
not
the record does
lar course of
convictions should be reversed
ed that his
The
assistance.
demonstrate ineffective
of “numerous serious errors and
because
ap-
the court of
argues
further
that
state
by
constituting
trial counsel
inef-
omissions
the Strickland standard
peals abandoned
assistance of counsel.” The court
fective
hindsight
on
and
and based its decision
appeals
appealed
considered the three
speculation.
opinion.
in
dis-
single
convictions
After
cussing
that,
several deficiencies in trial coun-
The record reveals
after
alterca-
representation,
appeals
sel’s
the court of
country-and-western
park-
in a
bar’s
tion
agreed
totality
repre-
that the
of counsel’s
ing
appellant
lot
which
was
appeals’
sentation undermined the court of
nose,
punched
in the
drove his
in
confidence
the conviction and reversed
lot, striking
through
parking
truck
Rylander v.
judgment.
the trial court’s
multiple
people, including
and
vehicles
State,
Anto-
(Tex.App.-San
Appellant argues ap- that the court of tance claim appeal, is raised on direct trial peals properly analyzed and sustained his counsel has not an opportunity had to re claim of ineffective assistance of counsel spond to these areas of concern. We have and that multiple deficiencies discussed previously stated that the record on direct appeals support that appeal generally will “not be sufficient to representa- court’s that counsel’s show that representation counsel’s was so tion fell below a reasonable standard of deficient as to part meet the first of the professional assistance. He also suggests Strickland standard” as reasonable “[t]he explanation that by trial counsel is not of ness counsel’s choices often involves required bring successful claim of in appear facts that do not Further, applicant ineffective assistance. State, record.” v. Mitchell 68 S.W.3d
agrees appeals’ analysis with the court of (Tex.Crim.App.2002). appli Thus regarding prejudice and conclusion corpus cation for a of habeas is the writ component of his ineffective assistance appropriate more vehicle to raise ineffec claim. tive assistance of counsel claims. Id. The appeals emphasized appellant’s case, “only challenge majority defense was to In this like the of cases, of appeal voluntariness his actions “the record on direct is unde- and/or
HI prove that there is no veloped adequately and cannot reflect the a defendant must plausible professional specific motives behind trial actions.” counsel’s reason for a (Tex. State, Mallett v. 65 S.W.3d act or omission. If there is no viable in Crim.App.2001). Thompson, supra, why As trial reason for counsel’s conduct then why appellant’s opportunity the record is silent as to we allow the to ex- should trial counsel took or failed to take the re- plain? prong The first Strickland ap actions undermined the court of quires the defendant to demonstrate peals’ performance confidence the convictions. As we fell below an counsel’s recently addressing objective stated a similar standard reasonableness. However, v. claim Bone if errors obvi- were so (Tex.Crim.App.2002), trial ously unprofessional counsel should then there should be ordinarily an opportunity explanation subjec- be afforded to no need for an of his explain his actions before being majority denounced tive intent. The states that cases, totality as ineffective. Based of most appeal the record on direct is record, appel this we cannot conclude that insufficient to elucidate the motives behind However, lant has established trial counsel’s trial counsel’s actions. when the performance objective fell below stan possible error is blatant and there no *5 and, dard of reasonableness thereby, has trial strategy explain that could satisfied the prong first of Strickland. conduct then we don’t need to know his Therefore, subjective we are unable to conclude that intent and there is no need for appellant has met the requirements of information In outside record. such situations, Strickland. hold that We appellant should be able to appeals in holding erred bring appeal judg- a direct and obtain a afforded ineffective assistance of counsel at ment court without this Accordingly, trial. we sustain the state’s vitiating Court the decision. With this three grounds for review.1 majority opinion, all the Court achieves wipe Appeals opin- out a valid Court of judgments We reverse the of the court Therefore, ion without a sufficient reason. affirm judgments I dissent. sentences of the trial court. MEYERS, J., dissenting opinion. filed a
HERVEY, J., participating. not
MEYERS, J., dissenting. Again, majority dispose chooses to an ineffective assistance of claim counsel analyzing rather than it. in- The Court explains stead that the record is insuffi- require- cient to show that the Strickland Strickland, ments have been met. Under deciding may 1. We are mindful that we are not still submit his ineffective assistance of appeal this direct whether did or counsel claim for review on merits in an did not Bone, receive effective assistance of counsel application corpus. for writ of habeas trial; reviewing only we are 30; Thompson, 77 S.W.3d at n. appeals’ of that issue determination at 814-15. Appellant based the record it. before