                                                                                       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                          FILED IN
                         Court of Appeals                1st COURT OF APPEALS
                                                             HOUSTON, TEXAS
                               For the                   11/6/2015 12:45:26 PM
                       First District of Texas           CHRISTOPHER A. PRINE
                             At Houston                           Clerk

                       ♦
                           No. 1434115
                     In the 179th 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
State Bar No. 24071454
morgan_clinton@dao.hctx.net                      Leah Fiedler
                                                 Assistant District Attorney
1201 Franklin St., Suite 600                     Harris County, Texas
Houston, Texas 77002
Telephone: 713.274.5826




                   Oral Argument Not Requested
                    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
      I.     Legal Background: The law of ineffective assistance claims ........ 3
      II. Argument: Thompson requires this Court to reject the
      appellant’s point. ..................................................................................................... 5
Conclusion ............................................................................................. 8
Certificate of Compliance and Service .............................................. 9




                                                              ii
                                                   Index of Authorities



Cases
Bone v. State
  77 S.W.3d 828 (Tex. Crim. App. 2002) ................................................................. 4
Gamble v. State
  916 S.W.2d 92 (Tex. App.—
  Houston [1st Dist.] 1996, no pet.) ......................................................................... 7
Mitchell v. State
 68 S.W.3d 640 (Tex. Crim. App. 2002) ................................................................. 4
Rylander v. State
  101 S.W.3d 107 (Tex. Crim. App. 2003) ......................................................... 4, 6
Strickland v. Washington
  466 U.S. 668 (1984) ............................................................................................... 3, 4
Thompson v. State
  9 S.W.3d 808 (Tex. Crim. App. 1999)............................................................... 4, 6
Thompson v. State
  981 S.W.2d 319 (Tex. App.—
  Houston [14th Dist.] 1998), rev’d, 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).




                                     1
              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


                                     2
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

the right to effective assistance of counsel. Strickland v. Washington, 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

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

at 687, 693.

      To show deficient performance for the first part of the Strickland

test, “the appellant must prove by a preponderance of the evidence that

his counsel’s representation objectively fell below the standard of

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


                                    3
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

reasonable professional assistance.” Strickland, 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

omission [by counsel].” Bone v. State, 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

performance. Rylander v. State, 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

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

by trial counsel for his actions will generally defeat an ineffective

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

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

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




                                     4
    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

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

particular line of questions that defense counsel objected to as eliciting

“backdoor hearsay.” Thompson v. State, 981 S.W.2d 319, 322-23 (Tex.

App.—Houston [14th Dist.] 1998), rev’d, 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

the trial court had, moments earlier, ruled inadmissible. Ibid. 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

conviction. Id. 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




                                     5
to elicit inadmissible hearsay,” Thompson had “failed to rebut the

presumption that this was a reasonable decision.”1

       This case involves a complaint about trial counsel failing to object

to supposedly objectionable evidence at trial, the same sort of claim at

issue in Thompson. Exactly like Thompson, 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




1 While it has become the norm for the parties and appellate courts to speculate
about what possible reason trial counsel might have had for the complained-of
omission, the Thompson 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
is a completely different question from whether trial counsel actually had a
reasonable basis for a particular act or omission. See also Rylander, 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.

                                          6
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

Appeals held in Thompson: There is not enough information in the

record to allow a conclusion that trial counsel was constitutionally

ineffective. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston

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

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.




                                     7
                              Conclusion

      The State respectfully submits that all things are regular and the

judgment of the trial court should be affirmed.



                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas


                                              /s/ C.A. Morgan
                                              CLINTON A. MORGAN
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              713.274.5826
                                              Texas Bar No. 24071454




                                    8
                 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


                                                /s/ C.A. Morgan
                                                CLINTON 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




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