Case Information

*0 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 2/26/2015 10:27:22 AM VIVIAN LONG CLERK *1 ACCEPTED 07-14-00340-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 2/26/2015 10:27:22 AM Vivian Long, Clerk

No. 07-14-00340-CR ______________________________ IN THE COURT OF APPEALS SEVENTH DISTRICT OF TEXAS, AMARILLO, TEXAS ______________________________ ALLYNE SHANE DOYLE, Appellant, v.

THE STATE OF TEXAS,

Appellee. ______________________________ On Appeal from the 69th Judicial District Court Of Dallam County Texas

______________________________ STATE’S BRIEF

______________________________ NANCY NEMER *JOSEPH P. CORCORAN

District Attorney, Pro Tem Assistant District Attorney, Pro Tem

Assistant Attorney General Assistant Attorney General

Supervising Attorney for Non-Capital Appeals Criminal Appeals Division *Lead Appellate Counsel State Bar No. 00793549

Joseph.Corcoran@TexasAttorneyGeneral.gov P. O. Box 12548, Capitol Station Austin, Texas 78711

Telephone: (512) 936-1400 Facsimile: (512) 936-1280

_____________________________ ATTORNEYS FOR THE STATE *2

IDENTITY OF PARTIES AND COUNSEL Appellant

Allyne Shane Doyle

Represented by

T IMOTHY D. S ALLEY

(At both trial and on appeal)

Salley & Lands

102-B E 7th Street

Dumas, TX 79029

(806) 934-3185

tsalley53@gmail.com

Appellee

The State of Texas

Represented by

J OSEPH P. C ORCORAN (on appeal)

N ANCY N EMER

District Attorneys Pro Tem

Dallam County, Texas

Assistant Attorneys General

OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 – MC067

Austin, Texas 78711-2548

512-936-1400

Joseph.Corcoran@texasattorneygeneral.gov Nancy.Nemer@texasattorneygeneral.gov ii

TABLE OF CONTENTS

Page IDENTITY OF PARTIES AND COUNSEL ............................................. ii

TABLE OF CONTENTS ......................................................................... iii

INDEX OF AUTHORITIES ..................................................................... v

STATEMENT OF THE CASE ................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ................................. 4

STATEMENT OF FACTS ........................................................................ 4

SUMMARY OF THE ARGUMENTS ..................................................... 10

ARGUMENTS AND AUTHORITIES .................................................... 12

I. Standard of Review ....................................................................... 12

II. Resolution of Appellant’s Point of Error Is Impossible Because It Is

Premised Upon Extra Record “Facts” Not Properly before the Court, and Which Could Not Have Been Considered by the Trial Court When Appellant’s Original Motion Was Overruled by Operation of Law ................................................................................................. 13 A. The 30-day time limit to file a motion for new trial ............. 13 B. Appellant’s “supplemental” motion for new trial was in reality an untimely amendment ........................................... 14 C. The trial court could not have considered the Amended Motion over the State’s objection; hence, Appellant failed to preserve his single point of error for review .......... 15 iii

III. Even Assuming, Arguendo, that the Amended Motion was Properly

Before the Trial Court, Appellant Fails to Establish that the Trial Court Abused its Discretion When it Denied the Amended Motion. .......................................................................... 16 A. The trial court has no duty to inform a defendant that he has a constitutional right to testify, or to ensure that a defendant’s waiver of that right is knowing or voluntary, under Texas law this obligation is on defense counsel ................................................................................... 16 B. Appellant has failed to meet his burden of establishing that the trial court’s decision to deny his motion for new trial was an arbitrary or unreasonable application of Strickland. ............................................................................. 19 C. Appellant fails to meet his burden under either prong of Strickland. ............................................................................. 22 PRAYER FOR RELIEF .......................................................................... 24

CERTIFICATE OF SERVICE ................................................................ 25

CERTIFICATE OF COMPLIANCE ....................................................... 26

iv *5 INDEX OF AUTHORITIES Cases

Adams v. State, 514 S.W.2d 262 (Tex. Crim. App. 1974) ....................... 16

Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004)...................... 21

Dugard v. State, 688 S.W.2d 524 (Tex. Crim. App. 1985) ...................... 14

Emery v. Johnson, 139 F.3d 191 (5th Cir. 1997) .................................... 17

Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001) ......................... 21

Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1993) ...................... 16

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) .................. 19

Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) ................ 20

Holden v. State, 201 S.W.3d 761 (Tex. Crim. App. 2006) ................ 12, 23

Johnson v. State, 120 S.W.3d 10 (Tex. App.—Amarillo 2003) ............... 17

Johnson v. State, 169 S.W.3d 223 (Tex. Crim. App. 2005) ............... 17, 18

Klapesky v. State, 256 S.W.3d 442 (Tex. App.–Austin 2008) ................ 14

Lewis v. State, 911 S.W.2d 1 (Tex. Crim. App. 1995) ............................. 12

Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001) .......................... 20

Marras v. State, 741 S.W.2d 395 (Tex. Crim. App. 1987) ...................... 16

Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002) ........... 19, 20, 21

My Thi Tieu v. State, 299 S.W.3d 216 (Tex. App.—Houston [14th Dist.]

2009) ..................................................................................................... 22 Rock v. Arkansas, 483 U.S. 44 (1987) ..................................................... 17

Rodriguez v. State, 292 S.W.3d 187 (Tex. App.–Amarillo 2009) 19, 20, 21

Shanklin v. State, 190 S.W.3d 154 (Tex. App.—Houston [1st Dist.] 2005)

.............................................................................................................. 22 State v. Gill, 967 S.W.2d 540 (Tex. App.—Austin 1998) ........................ 22

State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007) .................... 22

State v. Zalman, 400 S.W.3d 590 (Tex. Crim. App. 2013) ................ 14, 15

Strickland v. Washington .................................................................. 12, 20

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ..................... 21

Williams v. State, 780 S.W.2d 802 (Tex. Crim. App. 1989) .................... 14

Statutes

Tex. Code Crim. Proc. art 42.013 .............................................................. 2

Tex. Penal Code § 12.32 ............................................................................ 1

Tex. Penal Code § 12.42(b) ........................................................................ 1

Rules

Tex. R. App. P. 21.2 ................................................................................. 16

Tex. R. App. P. 21.4(a) ............................................................................. 13

Tex. R. App. P. 21.4(b) ............................................................................. 13

Tex. R. App. P. 21.8(c) ............................................................................... 3

Tex. R. App. P. 26.2(a)(2) .......................................................................... 3

vii *8 STATEMENT OF THE CASE The Grand Jury of the 69th Judicial District Court of Dallam County Texas, indicted Appellant, Allyne Shane Doyle, with the second-

degree felony offense of aggravated assault with a deadly weapon. CR 5. ^[1]

The indictment included a single, final-felony enhancement allegation,

which if proven, increased the potential punishment range to that of a

first-degree felony (i.e., to a term of not less than five years, and not more

than ninety-nine years, or life). CR 5; see Tex. Penal Code § 12.42(b)

(West 2013); see also Tex. Penal Code § 12.32 (West 2013) (defining the

punishment range for a first-degree felony offense). Appellant pleaded

not guilty and proceeded to a bench trial. CR 35–36; 2 RR 5. The trial

court found Appellant guilty of the offense as alleged in the indictment.

CR 35–36; 3 RR 121. On the same day—July 8, 2014—after conducting a

hearing on punishment, and after finding the enhancement paragraph to

*9 be true, the trial court sentenced Appellant to twenty-five years’

imprisonment. ^[2] 3 RR 187–88; CR 35. Although he was present when his

sentence was pronounced in open court, Appellant did not testify at the

punishment proceeding. 3 RR 133–86. As relevant to this appeal,

immediately prior to the start of the punishment portion of the trial,

Appellant voluntarily waived his right to be present during the

questioning of witnesses, and left the courtroom. 3 RR 126–29.

On July 15, 2014—seven days after his sentence was imposed in open court—Appellant filed a motion for new trial, alleging only that “the

verdict in this cause is contrary to the law and the evidence.” CR 38 (the

State will refer to Appellant’s July 15, 2014 motion for new trial as the

“Original Motion”). Appellant’s Original Motion did not advance an

allegation that he wished to testify at the punishment hearing, or a claim

that his constitutional right to testify was violated. See id. Next, on

August 19, 2014—42 days after his sentence was imposed in open court—

*10 Appellant filed a “supplement” to his Original Motion in which he

attached two affidavits, each suggesting two additional claims. CR 40–43

(the State will refer to this August 19, 2014 pleading as the “Amended

Motion”). The first affidavit seemed to suggest that the State mistreated

the complaining witness at trial. CR 42. The second affidavit was from

Appellant himself, in which he stated that he had desired to testify

during the punishment hearing, but that due to some kind of

misunderstanding with trial counsel, he did not. CR 43. ^[3]

The State timely objected to the trial court’s consideration of the Amended Motion, contending that it constituted an untimely amendment

of the Original Motion. CR 47–48. No hearings occurred on either motion

for new trial, and the lack of a written ruling in the record suggests that

they were overruled by operation of law. See Tex. R. App. P. 21.8(c).

Appellant filed his notice of appeal on September 9, 2014. CR 44; see Tex. R. App. P. 26.2(a)(2). The State understands Appellant to raise

a single point of error: That the trial court erred in denying his Amended

*11 Motion, in which he first sought a new punishment hearing, because

Appellant was unable to testify at that punishment hearing as a result of

a misunderstanding between he and trial counsel. See Appellant’s Br. at

8–11.

STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rule of Appellate Procedure 39.1, the State does not believe that oral argument is necessary because the dispositive issue

or issues have been authoritatively decided; the facts and legal

arguments are adequately presented in the briefs and record; and the

decisional process would not be significantly aided thereby.

STATEMENT OF FACTS Larry Wilkerson testified that on August 1, 2013, he was walking back from a local bank, along Fourth Street, when he heard two men

arguing. 3 RR 10–11, 13. As he approached, he saw the two men standing

in the open, continuing to argue. 3 RR 15–16. Eventually, Wilkerson saw

one of the men jump into a pickup truck and forcefully drive the truck in

reverse toward the other man, violently striking him. 3 RR 16. The driver

was moving in reverse with sufficient force to cause the tires to “spin.” 3

RR 16, 19. The man who was struck by the pickup was later identified as

Quincy Allyn Doyle, Appellant’s father. 3 RR 41. The truck’s tailgate was

down, and Quincy was struck with sufficient force that he “fell” onto the

back of the truck. 3 RR 16, 19–20. The driver continued moving

backwards, eventually striking the back of the truck—and Quincy—into

a pile of “junk.” 3 RR 16. If the driver had driven Quincy into anything

other than a “junk pile,” it would have “[s]quashed him dead.” 3 RR 16.

The driver then proceeded to move the truck forward with Quincy still

hanging on, “spinning the gravel and everything, and . . . [Quincy] finally

fell off the truck about the middle of the street.” ^[4] 3 RR 16. Wilkerson then

approached Quincy concerned that he was injured and might not be alive.

3 RR 16. Wilkerson then waited for police to arrive, and gave them his

statement. 3 RR 16.

Quincy Allyn Doyle testified that Appellant is his son. 3 RR 32.

Quincy has had a “rocky relationship” with Appellant for five to ten years.

3 RR 33–35. Appellant has a “really bad temper.” 3 RR 38. Appellant

tends to get angry when he “doesn’t get his way.” 3 RR 40. On August 1,

*13 2013, Quincy had a “very loud argument” with Appellant over Appellant’s

attempt to take a tow bar from Quincy without a deposit, and also over

Appellant’s failure to pay money owed to Quincy. 3 RR 37–38. Appellant

became extremely angry, got into his pickup truck, and “took off in his

truck coming at me, you know, backwards and rammed me up in a pile

of junk.” 3 RR 40. In order to avoid being crushed between the truck and

pile of junk, Quincy had to jump into the bed of the truck. 3 RR 40.

Appellant then “took off” and Quincy eventually rolled off the truck and

out into the street. 3 RR 40. In the street, Quincy encountered Wilkerson.

3 RR 41. Quincy acknowledged that he told police that Appellant had

tried to kill him, and that in retrospect “you could say that.” 3 RR 42.

Quincy also testified that Appellant sent him several letters from jail, in

which he repeatedly asked Quincy to file an affidavit of non-prosecution,

in an effort to get the charged offense dismissed. 3 RR 54–63. Quincy also

testified that in one of the letters, Appellant suggested that Quincy

contact Wilkerson in an effort to obtain an affidavit of non-prosecution

from Wilkerson. 3 RR 61–62.

Officer Rodrigo Jackson testified that he is a police officer for City of Dalhart Police Department. 3 RR 74. He testified that he was on duty

on August 1, 2013, when he received a call to go to 320 Scott Street. 3 RR

74. Upon arrival Officer Jackson observed Quincy sitting on the ground,

3 RR 76, and asked Quincy what had happened, to which Quincy replied

“Shane just tried to kill me.” 3 RR 75; accord 3 RR 104 (“[Quincy] told me,

my son, Shane, just tried to run me over.”). Officer Jackson observed tire

tracks that appeared to confirm that someone tried to hit Quincy with a

vehicle. 3 RR 79. Officer Jackson testified that backing a truck up into a

person could be a deadly weapon. 3 RR 101. Officer Jackson confirmed

that Wilkerson was a witness to the “entire incident,” and that Wilkerson

provided a witness statement to that effect. 3 RR 105. Officer Jackson

also testified that Appellant’s reputation in the community was “not

good.” 3 RR 84.

Michelle Griffin testified that she was the chief dispatcher for the

Dalhart County Jail. 3 RR 111. She testified regarding a letter that

Appellant sent to Quincy from the jail. 3 RR 111–16; State Ex. 5. In the

letter, Appellant attempted to have Quincy execute and file a non-

prosecution affidavit. 3 RR 114. Appellant also asked Quincy to contact

Wilkerson and ask “him if he would tell that chick in Austin – and chick

is spelled c-h-i-c just so you know – in Austin he wants no part in the

situation, then she has no pull at all anyway look – any way you look at

it.” ^[5] 3 RR 115.

After he was found guilty, and during sentencing, Angela Reynolds testified that she had previously dated Appellant from May or June of

2008, until October of 2011. 3 RR 133–34. Reynolds testified that during

the five-year period she dated Appellant, he was “very” violent, and that

he repeatedly made her fear for her life. 3 RR 135. Reynolds testified that

she was convicted of a drug offense that Appellant had actually

committed, for the benefit of Appellant. 3 RR 136. She testified that

Appellant repeatedly violated protective orders against him, and

threatened to kill Reynolds and her family. 3 RR 140. Despite such

violations, Appellant was not prosecuted. 3 RR 142. On one occasion,

Reynolds attempted to leave Appellant, but he followed her with his

*16 truck, grabbed her by her hair and put in the passenger seat. 3 RR 143.

After Reynolds exited the truck, Appellant repeatedly tried to ram her

with the truck, forcing her to get behind trees to prevent him from hitting

her. 3 RR 144. This was not the first time that Appellant grabbed

Reynolds by her hair and forced her into his truck, against her will. 3 RR

146–47. Reynolds testified that over a five-year period, Appellant beat,

choked, hit, slapped, kicked, threw down, and pulled her hair “a hundred

times.” 3 RR 148. And that she thought she was going to die “quite a few”

times. 3 RR 148.

Brandy Blanco testified during sentencing that she had previously dated Appellant “on and off the last two . . . years.” 3 RR 157. Blanco

testified that during the two-year period she dated Appellant, he was

violent, and he continually beat her up. 3 RR 157. Blanco testified that

Appellant’s threats caused her to be concerned for the safety of her entire

family, and particularly her daughter. 3 RR 157–58. Blanco testified that

she once tried to leave Appellant, and that after he found her, he forced

her into his truck by threatening to kill her grandmother and daughter.

3 RR 159. At one point Appellant burned Blanco with a “torch,” telling

her that “love hurts.” 3 RR 160. Blanco testified that she believed

Appellant injected her with narcotics without her consent. 3 RR 161–62.

Indeed, Blanco testified that Appellant repeatedly punished her for

calling the police. 3 RR 163. Although she repeatedly tried to leave

Appellant, Blanco would return because he would threatened to hurt her

daughter. 3 RR 164. Moreover, when Blanco stood up to Appellant’s

violent abuse, he often instituted the “three-second rule” in which he

would choke her to unconsciousness in three seconds. 3 RR 166. On one

occasion Appellant became particularly violent and forced Blanco’s face

and head into hot water, burning her. 3 RR 172–73. Appellant did this in

front of Blanco’s daughter, who yelled at Appellant to stop. 3 RR 173.

Blanco’s daughter then called Blanco’s grandmother on a cellphone who

came over to pick them up and Appellant threatened to kill them. 3 RR

173–74. Despite the presence of Blanco’s grandmother—and her threat

to call police—Appellant refused to let Blanco leave. 3 RR 174. Blanco

also testified that Appellant contacted her from jail (after his arrest for

the present offense), and asked her to lie. 3 RR 174–75.

SUMMARY OF THE ARGUMENTS *18 The Court should overrule Appellant’s single point of error. First, the Amended Motion for new trial in which Appellant first suggested his

desire to testify, and in which he first requested a new punishment

hearing, constituted an untimely amendment to the Original Motion.

This is because the Amended Motion was filed more than 30 days after

the trial court imposed Appellant’s sentence in open court. The State

objected on this basis in the trial court, which meant the Amended

Motion was not properly before the trial court. Since the trial court could

not have abused its discretion in denying Appellant’s motion for new trial

on that basis, the single point of error presents nothing for this Court to

review.

Second, even assuming that the Amended Motion was properly before the trial court—and hence, that the trial court made a

discretionary decision thereto, reviewable by this Court—Appellant’s

point of error is without merit. Under Texas law there is no free-standing

obligation on the part of the trial court to either inform a defendant of his

right to testify, or to ensure that the right is properly waived. Rather, the

Texas courts place the duty to so inform on trial counsel, and analyze the

question of whether a defendant was denied his right to testify under the

auspices of Strickland v. Washington. ^[6] And because the record does not

contain any information upon which to reverse the trial court with

reference to Strickland, Appellant fails his burden and the Court should

overrule his point of error.

ARGUMENTS AND AUTHORITIES

I. Standard of Review

This Court reviews a trial court’s denial of a motion for new trial under an abuse of discretion standard. Lewis v. State, 911 S.W.2d 1, 7

(Tex. Crim. App. 1995). “We do not substitute our judgment for that of

the trial court; rather, we decide whether the trial court’s decision was

arbitrary or unreasonable.” Holden v. State, 201 S.W.3d 761, 763 (Tex.

Crim. App. 2006). A trial court abuses its discretion denying a motion for

new trial only when no reasonable view of the record would support the

trial court’s ruling. Id.

*20 II. Resolution of Appellant’s Point of Error Is Impossible Because It Is

Premised Upon Extra Record “Facts” Not Properly before the Court, and Which Could Not Have Been Considered by the Trial Court When Appellant’s Original Motion Was Overruled by Operation of Law.

A. The 30-day time limit to file a motion for new trial To be timely, a motion for new trial must be filed within 30 days of “the date when the trial court imposes or suspends sentence in open

court.” Tex. R. App. P. 21.4(a). The same 30 day rule applies to

amendments:

To Amend. Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.

Tex. R. App. P. 21.4(b). Here, Appellant’s request for a new punishment

hearing—which included the affidavit suggesting his desire to testify—

was advanced as part of the Amended Motion, filed more than 30 days

after sentencing. Hence, to the extent that the Amended Motion

constituted an “amendment” under Rule 21.4(b), it was untimely.

B. Appellant’s “supplemental” motion for new trial was in reality an untimely amendment.

The law in Texas is plain: Filing affidavits in support of a motion for new trial more than 30 days after sentencing, is considered an

untimely attempt to amend the initial motion for new trial. Dugard v.

State, 688 S.W.2d 524, 529–30 (Tex. Crim. App. 1985), overruled on other

grounds by Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App.

1989); see also Klapesky v. State, 256 S.W.3d 442, 455 (Tex. App.–Austin

2008, pet. ref’d). Since the Amended Motion—which was filed some 42

days after sentencing—contained the new legal claim described in the

affidavit (regarding Appellant’s purported desire to testify at sentencing),

it constituted an untimely amendment to the Original Motion. See

Dugard, 688 S.W.2d at 529–30; Klapesky, 256 S.W.3d at 455.

And to the extent that Appellant might argue that the Amended Motion was merely a more detailed argument in support of the Original

Motion, his argument again fails. See State v. Zalman, 400 S.W.3d 590,

594–95 (Tex. Crim. App. 2013) (noting that counsel cannot supplement a

form motion for new trial that advances a generic claim, with an untimely

and more detailed amendment that advances a specific claim). Here,

there was nothing in the Original Motion that even hinted at Appellant’s

purported desire to testify; and hence, Appellant’s Amended Motion,

upon which this appeal is premised, was untimely.

C. The trial court could not have considered the Amended Motion over the State’s objection; hence, Appellant failed to preserve his single point of error for review.

“[I]t is error for the trial court to rule on an untimely amendment [to a motion for new trial] over a proper objection.” Zalman, 400 S.W.3d

at 595. Here, the State objected to the Amended Motion as being

untimely. CR 47–48. As a result, the trial court was not permitted to

“rule” on the untimely amendment contained within the Amended

Motion. Zalman, 400 S.W.3d at 595. And since the order denying

Appellant’s motions for new trial (by operation law) could not have

extended to discretionary consideration of the Amended Motion, the point

of error presents nothing for this Court to review.

The same holds for the factual assertions in the affidavit itself: A motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary to adduce facts not in the record.

Tex. R. App. P. 21.2 (emphasis added). Because review of Appellant’s

point of error would require reference to a factual assertion existing

outside of the record of the trial proper, Appellant’s failure to advance the

affidavit as part of a timely motion for new trial means that his evidence

of error is not before the Court, and any error is “waived.” See Adams v.

State, 514 S.W.2d 262, 264 (Tex. Crim. App. 1974); see also Marras v.

State, 741 S.W.2d 395, 407 (Tex. Crim. App. 1987), overruled on other

grounds by Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1993) (“The

appellant failed to make this complaint at trial or in his motion for new

trial. The appellant has failed, therefore, to show this Court any violation

of Article 36.27 and has failed to overcome the presumption of regularity

in the proceedings.”). Appellant’s point of error should be overruled.

III. Even Assuming, Arguendo, that the Amended Motion was Properly

Before the Trial Court, Appellant Fails to Establish that the Trial Court Abused its Discretion When it Denied the Amended Motion. A. The trial court has no duty to inform a defendant that he has a constitutional right to testify, or to ensure that a defendant’s waiver of that right is knowing or voluntary, under Texas law this obligation is on defense counsel.

In the interests of justice, the State alternatively addresses Appellant’s unpreserved point of error on its merits. A criminal

defendant undoubtedly has a constitutional right to testify in his own

defense. See Rock v. Arkansas, 483 U.S. 44, 49–52 (1987). This right

arises from the Fifth and Sixth Amendments of the Constitution, is

personal to the defendant, and cannot be waived by counsel. Id. at 46–47.

To be effective, any waiver of the right to testify must be made knowingly

and voluntarily. Johnson v. State, 120 S.W.3d 10, 15 (Tex. App.—

Amarillo 2003), aff’d 169 S.W.3d 223 (Tex. Crim. App. 2005) (citing

Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997)).

While the right to testify occupies an important place in our constitutional framework, the Court of Criminal Appeals (the “CCA”) has

determined that a trial court has no duty to actually inform a defendant

about that right to testify. Johnson v. State, 169 S.W.3d 223, 235 (Tex.

Crim. App. 2005) (“If the trial court is not required to admonish a

represented defendant about the right not to testify—arguably the “more

fragile right”—then the trial court surely has no duty to do so with regard

to the converse right to testify”) (emphasis in original).

Rather “defense counsel shoulders the primary responsibility to inform the defendant of his right to testify, including the fact that the

ultimate decision belongs to the defendant.” Id. Moreover, in Johnson the

CCA rejected the minority approach which would have required a trial

court to affirmatively ensure that a defendant who does not testify has

knowingly waived that right. See id. at 234–35 (rejecting the minority

view “imposing on the trial court a duty to ensure a knowing waiver of

the right to testify.”).

And because “imparting that information is defense counsel’s responsibility,” the courts are directed to apply the legal framework

described in Strickland v. Washington to measure whether a defendant’s

right to testify was effectively “denied by defense counsel.” Johnson, 169

S.W.3d at 235. In other words, the CCA has grafted Strickland’s two-part

legal measure to resolve all claims that a defendant was denied his

constitutional right to testify. Id.

To this end, the State next analyzes the requirements of Strickland to determine if Appellant has met his burden of establishing that the trial

court’s decision not to act and to deny his Amended Motion new trial was

arbitrary or unreasonable.

B. Appellant has failed to meet his burden of establishing that the trial court’s decision to deny his motion for new trial was an arbitrary or unreasonable application of Strickland.

“Strickland v. Washington is the seminal case setting forth the standard for ineffective assistance of counsel claims under the United

States Constitution.” Rodriguez v. State, 292 S.W.3d 187, 188 (Tex. App.–

Amarillo 2009, no writ). Strickland established a two-pronged legal

measure—reversal requires Appellant to demonstrate: (1) that counsel’s

representation fell below an objective standard of reasonableness, and (2)

the deficient performance prejudiced Appellant. Id. at 188–89 (citing

Hernandez v. State, 726 S.W.2d 53, 54–55 (Tex. Crim. App. 1986)).

The first prong of the Strickland test requires an appellant prove that counsel made such serious errors that he did not function as the

“counsel” guaranteed by the Sixth Amendment. Id. at 189. The second

Strickland prong requires an appellant “show a reasonable probability

that, but for his counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. (citing Mitchell v. State, 68

S.W.3d 640, 642 (Tex. Crim. App. 2002)). “Reasonable probability” means

probability of a degree sufficient to undermine confidence in the outcome.

Id. The Strickland test for prejudice applies even in cases like this one,

in which the purported deficiency relates only to a non-capital sentencing

outcome, and not to the question of a defendant’s guilt. See Hernandez v.

State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (“Assuming Strickland

left open the question of whether a defendant is required to show

prejudice from deficient attorney performance at noncapital sentencing

proceedings, we perceive no valid reason why Strickland cannot apply, or

why a different rule should apply, to noncapital sentencing

proceedings.”).

An appellant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Rodriguez, 292 S.W.3d at 189

(citing Mitchell, 68 S.W.3d at 642). The Court’s review of counsel’s

performance is highly deferential, and a strong presumption exists that

counsel’s conduct fell within a wide range of reasonable professional

assistance. Id. (citing Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.

2001)); see Strickland, 466 U.S. at 689 (noting there are countless ways

to provide effective assistance in any given case).

To overcome the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly rooted in the record.

Rodriguez, 292 S.W.3d at 189 (citing Thompson v. State, 9 S.W.3d 808,

813–14 (Tex. Crim. App. 1999)). In the majority of cases, the record on

direct appeal is inadequate to show that counsel’s conduct fell below an

objectively reasonable standard of performance; thus, the better course

is to pursue the claim in habeas proceedings. Mitchell, 68 S.W.3d at 642.

Absent evidence of counsel’s reasons for the challenged conduct, the

Court is not permitted to conclude the challenged conduct constituted

deficient performance unless the conduct was so outrageous that no

competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d

436, 440 (Tex. Crim. App. 2001).

And this burden is even higher in the present procedural posture, because the Court is to review the two prongs of Strickland v.

Washington , through this abuse of discretion prism governing motions

for new trial, reversing only if the trial court’s decision is arbitrary or

unreasonable. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App.

2004), superseded in part by rule of appellate procedure 21.8(b) on other

grounds, as recognized by State v. Herndon, 215 S.W.3d 901, 905 n.5

(Tex. Crim. App. 2007); My Thi Tieu v. State, 299 S.W.3d 216, 223 (Tex.

App.—Houston [14th Dist.] 2009, pet. ref’d); Shanklin v. State, 190

S.W.3d 154, 158–59 (Tex. App.—Houston [1st Dist.] 2005), pet. dism’d,

211 S.W.3d 315 (Tex. Crim. App. 2007); State v. Gill, 967 S.W.2d 540, 542

(Tex. App.—Austin 1998, pet. ref’d) (holding that when a trial court

grants a motion for new trial on the basis of ineffective assistance of

counsel, an appellate court should review the standards of Strickland

through a prism of the abuse of discretion standard and decide whether

the trial court’s decision to grant a new trial was so outside the zone of

reasonable disagreement that it is subject to reversal). Appellant has

failed to establish a Strickland violation by means of this highly

discretionary standard.

C. Appellant fails to meet his burden under either prong of Strickland.

The record is devoid of any evidence upon which to analyze the lower court’s purported decision to overrule the Amended Motion for new

trial, at least with respect to this point of error. In his Amended Motion,

Appellant failed even to allege—much less to argue—that counsel was

constitutionally ineffective with respect to Appellant’s right to testify

during punishment. Moreover, Appellant fails to establish the required

Strickland prejudice as to his ultimate sentence; and failed even to

provide the lower court with a description of the testimony he would have

given. Appellant cannot establish prejudice because of the horrific nature

of the State’s evidence during the penalty phase of the trial. Because

Appellant provided no affirmative evidence in support of either prong of

Strickland, he necessarily fails to establish that the trial court acted

arbitrarily or unreasonably when it denied his motion for new trial. See

Holden, 201 S.W.3d at 763.

This point of error should be overruled.

PRAYER FOR RELIEF FOR ALL THESE REASONS, the State respectfully requests that this Honorable Court overrule Appellant’s single point of error and affirm

his conviction and sentence.

Respectfully submitted, NANCY NEMER District Attorney, Pro Tem Assistant Attorney General /s/ Joseph P. Corcoran *Lead Appellate Counsel JOSEPH P. CORCORAN*

Assistant District Attorney, Pro Tem Assistant Attorney General Supervising Attorney for Non-Capital Appeals Criminal Appeals Division State Bar No. 00793549 Joseph.Corcoran@TexasAttorneyGeneral.gov P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 936-1400 Facsimile: (512) 936-1280 ATTORNEYS FOR THE STATE *32 CERTIFICATE OF SERVICE Pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate Procedure, I do hereby certify that a true and correct copy of the foregoing

notice was served electronically through the electronic filing manager, on

the following attorney via electronic mail:

Timothy D. Salley

State Bar No. 00795633

tsalley53@gmail.com

Moreover, I do hereby certify that a true and correct copy of the foregoing

pleading has been served directly on counsel of record on the same day of

this electronic filing, to Mr. Salley, via electronic mail.

/s/ Joseph P. Corcoran JOSEPH P. CORCORAN Assistant District Attorney, Pro Tem Assistant Attorney General *33 CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF APPELLATE PROCEDURE 9.4 This brief complies with Tex. R. App. Proc. 9.4(i)(2)(C) in that it contains 4,109 words (excluding the sections designated in Rule 9.4(i)(1)),

in Microsoft Word 2010, Century, 14 points..

/s/ Joseph P. Corcoran JOSEPH P. CORCORAN Assistant District Attorney, Pro Tem Assistant Attorney General

[1] “CR” refers to the Clerk’s Record—the transcript of pleadings and documents filed with the clerk during trial and is followed by page number. “RR” refers to the Reporter’s Record of the transcribed trial proceedings, and is preceded by volume number and followed by page number.

[2] The trial court also entered two additional findings: first that the offense for which Appellant had been convicted involved family violence under Tex. Code Crim. Proc. art 42.013; and second, that Appellant used a deadly weapon in commission of the offense. CR 5.

[3] The second affidavit appears to be the basis for the single point of error pending before the Court.

[4] The driver left the scene. 3 RR 79.

[5] This reference appears to be to Nancy Nemer, the assistant attorney general who prosecuted Appellant. See 3 RR 115.

[6] 466 U.S. 668 (1984).