Case Information

*0 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 5/7/2015 9:31:35 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 14-14-00091-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 5/7/2015 9:31:35 PM CHRISTOPHER PRINE CLERK No. 14-14-00091-CR In the

Court of Appeals for the

Fourteenth District of Texas at Houston

 No. 1400039

In the 185 th District Court Harris County, Texas  ADRIAN FRANCISCO MIRANDA Appellant

V. THE STATE OF TEXAS Appellee

 APPELLANT’S MOTION FOR REHEARING  M ANDY M ILLER Attorney for Adrian Francisco Miranda State Bar No: 24055561 2910 Commercial Ctr. Blvd., Ste. 103-201 Katy, TX 77494 (832) 900-9884 Fax: (877) 904-6846 mandy@mandymillerlegal.com *2 TABLE OF CONTENTS INDEX OF AUTHORITIES.................................................................................................ii

APPELLANT’S GROUND FOR REHEARING .............................................................1

PRELIMINARY STATEMENT ...........................................................................................2

GROUND FOR REHEARING............................................................................................2

CONCLUSION.........................................................................................................................5

CERTIFICATE OF SERVICE..............................................................................................6

i *3 INDEX OF AUTHORITIES CASES

Miranda v. State,

No. 14-14-00091-CR, 2015 WL 1870329 (Tex. App.--Houston [14th Dist.] Apr. 23, 2015, no pet. h.) (not designated for publication)...................2, 3 Strickland v. Washington,

466 U.S. 668 (1984)...........................................................................................................1, 4 United States v. Cronic,

466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984) ..................................4 RULES

T EX . R. A PP . P. 49.1...................................................................................................................1

T EX . R. A PP . P. 49.7...................................................................................................................1

ii

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, APPELLANT, by and through his undersigned attorney, and pursuant to Rule 49.1 of the Texas Rules of Appellate Procedure, and respectfully

requests the panel of this Court reconsider its opinion in this cause delivered on April

23, 2015. In support thereof, the State would show the panel of this Court the

following:

APPELLANT’S GROUND FOR REHEARING The panel erred in finding that appellant had not he suffered prejudice under the second prong of Strickland v. Washington ^[1] when trial counsel was deficient for eliciting testimony that appellant had previously been charged with a sexual offense and then having appellant admit he was untruthful with the jury. Specifically, under these circumstances, prejudice can be presumed.

*5 PRELIMINARY STATEMENT Appellant was charged by indictment with aggravated sexual assault of a child.

(CR 7). A jury convicted appellant of the charged offense. (CR 183, 184). Appellant

chose to forgo punishment by jury and the court sentenced him to 25 years

confinement in the Institutional Division of the Texas Department of Criminal

Justice. (CR 183, 184). This appeal followed.

On April 23, 2015, a panel of this Court issued an unpublished opinion affirming appellant’s conviction. Miranda v. State, No. 14-14-00091-CR, 2015 WL

1870329 (Tex. App.--Houston [14th Dist.] Apr. 23, 2015, no pet. h.) (not designated

for publication). Appellant now files this motion for rehearing.

GROUND FOR REHEARING The panel erred in finding that appellant had not established he suffered

prejudice under the second prong of Strickland v. Washington when trial

counsel was deficient for eliciting testimony that appellant had previously been

charged with a sexual offense and counsel also had appellant admit he was

untruthful with the jury. Under these circumstances, prejudice can be

presumed.

Appellant took the stand and testified on his own behalf and denied all of the accusations against him. On redirect examination, counsel asked appellant whether he

had ever previously been charged with a sex crime. (RR IV 193). Appellant testified

that he had not. (RR IV 193). However, the State approached the bench and

informed the court that appellant had, as a juvenile, been charged with indecency with

a child. (RR IV 195). Counsel knew of this offense because the State gave notice and

it was in the clerk’s file. (CR 76, 78-80; RR IV 196). Yet, counsel’s only response to

the State’s assertion that counsel had “opened the door” was that the charge was

dismissed. (RR IV 195). But counsel asked appellant whether he had ever been

charged with a sex crime, not whether he had been convicted.

Counsel then followed up by asking appellant, in front of the jury, whether his testimony that he had never been charged with a sex crime was truthful. (RR IV 196).

Appellant responded that it was not and counsel passed the witness. (RR IV 196).

The State did not ask any further questions and both sides rested. (RR IV 197). The

very last evidence the jury received was that appellant had previously been charged

with a “sexually-based offense.” (RR IV 196). Counsel did not elicit testimony that

the charge occurred when he was a juvenile, and did not inform the jury that it was

dismissed. They only knew that appellant was involved in some sort of sexual crime

and that he had lied to them initially when he said he had never been charged.

This Court agreed that counsel’s performance “very well could amount to deficient performance under Strickland because appellant’s defense rested almost

entirely on his credibility versus the complainant’s credibility.” Miranda , 2015 WL

1870329, at *5. This Court also noted that the record revealed no valid trial strategy

for counsel’s opening the door to the extraneous offense. Id . at n.3. Despite

counsel’s deficient performance, this Court found that appellant did not demonstrate

that he was prejudiced because “the evidence of the extraneous offense was extremely

brief.” Id . at *6.

Certain types of errors by counsel are considered so serious that prejudice is presumed. Strickland , 466 U.S. at 692, 104 S.Ct. at 2067; United States v. Cronic, 466

U.S. 648, 659 n. 25, 104 S.Ct. 2039, 2047 n. 25, 80 L.Ed.2d 657 (1984). In cases

involving those errors, a defendant is not required to affirmatively prove prejudice

under the second prong of the Strickland test. For example, in a denial of counsel

case, and in certain types of government interference cases, prejudice is presumed

because “prejudice in these circumstances is so likely that case-by-case inquiry into

prejudice is not worth the cost.” Strickland, 466 U.S. at 692. The Supreme Court also

recognized that a “more limited” presumption of prejudice will apply when a

defendant alleges actual ineffectiveness based on counsel’s conflict of interest. Id.

However, the Court hesitated to presume prejudice in all actual ineffectiveness cases.

Id. at 693.

Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.... Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Id.

While concern over the uncertainty of prejudice and the inability to define deficient

conduct is valid in many situations, such concern is unjustified in this case.

Appellant was charged with aggravated sexual assault of a child. Appellant testified on his own behalf and denied the allegations against him. Thus, appellant’s

defense hinged on the jury’s evaluation of his credibility. Through trial counsel’s

direct examination, the jury was allowed to hear that appellant was previously charged

with another sexually-based offense. Additionally, the jury learned that appellant lied

about never being charged, thus continuing to injure his credibility. This was the last

evidence presented to the jury before closing arguments. By finding that appellant did

not establish prejudice from his counsel’s deficient conduct, this Court ignored the

enormous impact counsel’s actions would have had on the jury and how it would have

affected its decision on appellant’s guilt or innocence. Under these circumstances,

prejudice can, and should, be presumed.

CONCLUSION

It is respectfully submitted that appellant’s motion for rehearing should be granted, and that his conviction should be reversed and the cause remanded for a new

trial.

/s/ Mandy Miller M ANDY M ILLER Attorney for Adrian Francisco Miranda State Bar No: 24055561 2910 Commercial Ctr. Blvd., Ste. 103-201 Katy, TX 77494 (832) 900-9884 Fax: (877) 904-6846 mandy@mandymillerlegal.com *9 CERTIFICATE OF COMPLIANCE In accordance with the Texas Rules of Appellate Procedure, I hereby certify that appellant’s supplemental brief, filed on May 7, 2015, has 1,348 words based upon

a word count under MS Word.

/ S /Mandy Miller M ANDY M ILLER Attorney for Adrian Francisco Miranda 2910 Commercial Center Blvd., Ste. 103-201 Katy, TX 77494 SBN 24055561 (832) 900-9884 FAX (877) 904-6846 mandy@mandymillerlegal.com CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing instrument has been delivered via electronic mail to the following:

Alan Curry

curry_alan@dao.hctx.net

/s/ Mandy Miller M ANDY M ILLER

[1] 466 U.S. 668 (1984)