Case Information

*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 11/6/2015 12:45:26 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00397-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 11/6/2015 12:45:26 PM CHRISTOPHER PRINE CLERK

No. 01-15-00397-CR In the

Court of Appeals

For the First District of Texas

♦ At Houston

No. 1434115

th In the 179 District Court ♦ Of Harris County, Texas Augustus Mitchell

Appellant

v.

The State of Texas

Appellee

♦ ♦

State’s Appellate Brief

Clinton A. Morgan Devon Anderson

Assistant District Attorney District Attorney Harris County, Texas Harris County, Texas Leah Fiedler State Bar No. 24071454

morgan_clinton@dao.hctx.net

Assistant District Attorney 1201 Franklin St., Suite 600 Harris County, Texas Houston, Texas 77002

Telephone: 713.274.5826

Oral Argument Not Requested *2 Statement Regarding Oral Argument The appellant did not request oral argument and neither does the State.

Identification of the Parties Counsel for the State:



Devon Anderson

District Attorney of Harris County Leah Fiedler

— Assistant District Attorney at trial 

Clinton A. Morgan

Assistant District Attorney on appeal Appellant:

Augustus Mitchell

Counsel for the Appellant:

Jeffrey Karl “Jeff” Hale

— Counsel at trial

Joseph W. Varela

— Counsel on appeal

Trial Court:



Jay W. Burnett

Presiding judge

i

Table of Contents

Statement Regarding Oral Argument ................................................. i

Identification of the Parties ................................................................ i

Table of Contents ................................................................................. ii

Index of Authorities ........................................................................... iii

Statement of the Case .......................................................................... 1

Statement of Facts ................................................................................ 1

Reply to the Appellant’s Sole Point of Error ................................... 2

The record is insufficiently developed to determine that trial counsel was ineffective for failing to object to the complained-of evidence........ 2 Thompson I. Legal Background: The law of ineffective assistance claims ........ 3

II. Argument: requires this Court to reject the appellant’s point. ..................................................................................................... 5 Conclusion ............................................................................................. 8

Certificate of Compliance and Service .............................................. 9

ii *4 Index of Authorities Cases

Bone v. State

Gamble v. State 77 S.W.3d 828 (Tex. Crim. App. 2002) ................................................................. 4 916 S.W.2d 92 (Tex. App.—

Mitchell v. State Houston [1st Dist.] 1996, no pet.) ......................................................................... 7

Rylander v. State 68 S.W.3d 640 (Tex. Crim. App. 2002) ................................................................. 4

Strickland v. Washington 101 S.W.3d 107 (Tex. Crim. App. 2003) ......................................................... 4, 6

Thompson v. State 466 U.S. 668 (1984) ............................................................................................... 3, 4

Thompson v. State 9 S.W.3d 808 (Tex. Crim. App. 1999) ............................................................... 4, 6

rev’d

981 S.W.2d 319 (Tex. App.—

Houston [14th Dist.] 1998), , 9. S.W.3d 808 (Tex. Crim. App. 1999) .............................................................................................................................................. 5 iii

Statement of the Case

The appellant was indicted for possession of a firearm at a location other than his residence after having been convicted of a felony.

(CR 10). In an enhancement paragraph, the indictment alleged a prior

felony conviction. (CR 10). The appellant pleaded not guilty, but a jury

found him guilty as charged. (CR 61, 75). The jury found the

enhancement paragraph true and assessed punishment at twelve years’

confinement (CR 73, 75). The trial court certified the appellant’s right of

appeal and the appellant filed a notice of appeal. (CR 78, 79).

Statement of Facts Two Houston Police officers were working extra jobs at an apartment complex when they saw the appellant take a pistol from his

pocket and lay it on the ground. (2 RR 97-98; 3 RR 11). The officers

detained him and learned that he had a prior felony conviction. (2 RR

104).

Reply to the Appellant’s Sole Point of Error The record is insufficiently developed to determine that trial

counsel was ineffective for failing to object to the complained-of

evidence.

In his sole point of error, the appellant complains that his trial counsel was ineffective for failing to object to several documents that

were admitted as part of the appellant’s juvenile probation records. The

appellant alleges that, out of the 203 pages comprising State’s Exhibit

14, at least 10 pages contained inadmissible hearsay. (Appellant’s Brief

at 12-14). The appellant alleges that there are also unspecified “reports

of clinicians and a psychiatrist” contained in State’s Exhibit 14, and that

trial counsel was ineffective for failing to challenge the expertise of these

clinicians and psychiatrists. (Appellant’s Brief at 16-17). The appellant

concludes his list of complaints by alleging that State’s Exhibit 14

“contains other items which were objectionable,” but he does not specify

what these “items” are or why they were objectionable.

The State’s response is simple: As is usually the case, the record on direct appeal is insufficient to allow this Court to determine that trial

counsel was ineffective. Because the appellant did not file a motion for

new trial, there was no opportunity below to obtain a response from

trial counsel as to why he did not object to this evidence. Binding

precedent from the Court of Criminal Appeals holds that for claims of

ineffective assistance involving a single failure to object to evidence,

appellate courts cannot declare trial counsel ineffective in cases where

trial counsel has not had a chance to respond.

I. Legal Background: The law of ineffective assistance claims As part of its general guarantee of a fair trial, the Sixth Amendment to the federal Constitution guarantees criminal defendants Strickland v. Washington

the right to effective assistance of counsel. , 466

U.S. 668, 686 (1984). An appellant alleging this his attorney’s

performance was so bad as to constitute ineffective assistance of

counsel — an allegation that, in effect, the Sixth Amendment’s guarantee

was not kept — must show that counsel’s performance was objectively Id

deficient, and that the deficient performance harmed the appellant. .

at 687, 693. Strickland

To show deficient performance for the first part of the test, “the appellant must prove by a preponderance of the evidence that

his counsel’s representation objectively fell below the standard of Mitchell v. State

professional norms.” , 68 S.W.3d 640, 642 (Tex. Crim.

App. 2002). Reviewing courts are to be “highly deferential” toward the

decisions of trial counsel in making this determination, and “indulge a

strong presumption that counsel’s conduct falls within the wide range of Strickland

reasonable professional assistance.” , 466 U.S., at 689. It is the

appellant’s burden to “prove, by a preponderance of the evidence, that

there is, in fact, no plausible professional reason for a specific act or Bone v. State

omission [by counsel].” , 77 S.W.3d 828, 836 (Tex. Crim. App.

2002).

The Court of Criminal Appeals has recognized that, in most cases, the record on direct appeal will not support a finding of deficient Rylander v. State

performance. , 101 S.W.3d 107, 110-111 (Tex. Crim.

App. 2003). “[T]rial counsel should ordinarily be afforded an

opportunity to explain his actions before being denounced as id

ineffective,” . at 111, and the absence in the record of an explanation

by trial counsel for his actions will generally defeat an ineffective Thompson v. State

assistance claim on direct appeal. , 9 S.W.3d 808, 814

(Tex. Crim. App. 1999). Matters that are outside the record may be See id.

better addressed by a writ of habeas corpus. at 814-15.

II. Argument: Thompson requires this Court to reject the appellant’s point.

The appellant’s claim that trial counsel was ineffective for not objecting to certain evidence is very similar to the ineffective-assistance Thompson

claim at issue in . At Thompson’s trial, the prosecutor asked a

particular line of questions that defense counsel objected to as eliciting Thompson v. State

“backdoor hearsay.” , 981 S.W.2d 319, 322-23 (Tex. rev’d

App.—Houston [14th Dist.] 1998), , 9. S.W.3d 808 (Tex. Crim. App.

1999). The trial court sustained this objection, but the prosecutor

continued the line of questioning and defense counsel failed to make any

further objection, thus allowing the prosecutor to elicit testimony that Ibid

the trial court had, moments earlier, ruled inadmissible. . The record

contained no information from trial counsel as to why he did not object.

On direct appeal, Thompson claimed that trial counsel was ineffective, and the Fourteenth Court of Appeals agreed, reversing the Id

conviction. . at 323-24. On discretionary review, the Court of Criminal

Appeals focused not on what the record showed, but instead on what

was missing. Because the record contained no information as to “why

appellant’s trial counsel failed to object to the State’s persistent attempt

to elicit inadmissible hearsay,” Thompson had “failed to rebut the

[1] presumption that this was a reasonable decision.”

This case involves a complaint about trial counsel failing to object to supposedly objectionable evidence at trial, the same sort of claim at Thompson Thompson

issue in . Exactly like , the record is completely

silent as to why trial counsel did not object to the evidence. Exactly like Thompson , the appellant complains of only one error by trial counsel.

See Thompson

, 9 S.W.3d at 814 (“An appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged

miscalculation during what amounts to otherwise satisfactory

representation, especially when the record provides no discernible

*11 explanation of the motivation behind counsel’s actions—whether those

actions were of strategic design or the result of negligent conduct.”).

Therefore, this Court should hold exactly as the Court of Criminal Thompson

Appeals held in : There is not enough information in the

record to allow a conclusion that trial counsel was constitutionally See Gamble v. State

ineffective. , 916 S.W.2d 92, 93 (Tex. App.—Houston inter alia

[1st Dist.] 1996, no pet.) (where defendant complained of, ,

trial counsel’s failure to object to inadmissible evidence, but record was

silent as to trial counsel’s reasons, there was insufficient evidence to

overcome presumption of reasonably effective assistance). The

appellant’s claim would be better evaluated on a writ of habeas corpus,

where a record can be developed and trial counsel’s actions can be more

fully examined.

Conclusion The State respectfully submits that all things are regular and the judgment of the trial court should be affirmed.

D EVON A NDERSON District Attorney Harris County, Texas C LINTON A. M ORGAN /s/ C.A. Morgan Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 713.274.5826 Texas Bar No. 24071454 *13 Certificate of Compliance and Service I certify that, according to Microsoft Word’s word counting function, the portion of this brief for which Rule of Appellate Procedure

9.4(i)(1) requires a word count contains 1,307 words.

I also certify that I have requested that efile.txcourts.gov electronically serve a copy of this brief to:

Joseph W. Varela

jwvarela@gmail.com

C LINTON A. M ORGAN /s/ C.A. Morgan Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 713.274.5826 Texas Bar No. 24071454 Date: November 6, 2015

[1] While it has become the norm for the parties and appellate courts to speculate Thompson about what possible reason trial counsel might have had for the complained-of omission, the court felt no need to engage in such speculation. Appellate lawyers and judges have a different skillset and area of expertise from trial lawyers, and counsel at trial is always privy to significant information that does not make it into the appellate record. Whether appellate lawyers can read an appellate record and come up with a reasonable basis for a particular act or omission of trial counsel See also Rylander is a completely different question from whether trial counsel actually had a reasonable basis for a particular act or omission. , 101 S.W.3d at 110-11 (without speculation into trial counsel’s reasoning, holding that silent record defeated ineffective-assistance claim on direct appeal). For what it is worth, the State’s appellate counsel supposes trial counsel might have believed it better to allow hearsay documents into evidence than to object and prompt the State to call additional witnesses. The appellant points out that the State did not subpoena any additional witnesses (Appellant’s Brief at 16), but the lack of subpoenas is not proof that the witnesses were actually unavailable.