Affirmed and Memorandum Opinion filed February 25, 2020.




                                      In the

                    Fourteenth Court of Appeals

                              NO. 14-18-00120-CR

                TREMAINE DESHAUN RACHAL, Appellant

                                         v.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 178th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1410271

                         MEMORANDUM OPINION

      Appellant Tremaine Deshaun Rachal was charged by indictment with the
first degree felony of intentionally or knowingly causing serious bodily injury to a
child (his 11-month-old son) by striking the child: (1) with a deadly weapon,
appellant’s hand; (2) with a deadly weapon, an unknown object; and (3) against an
unknown object on November 28, 2013. See Tex. Penal Code Ann. § 22.04(a)(1),
(c)(1). The jury found appellant guilty as charged in the indictment and assessed
punishment at imprisonment for a term of 23 years, without a fine. See id.
§§ 12.32, 22.04(e). In five issues, appellant argues that he was denied assistance of
counsel during the 30-day period for filing a motion for new trial, the trial court
erred by failing to give jury instructions concerning the voluntariness of appellant’s
third statement to the police, his trial counsel was ineffective because he failed to
request jury instructions concerning the voluntariness of appellant’s statement, and
the trial court erred in making a finding of use of a deadly weapon in its judgment.
We affirm.

                                 I.     BACKGROUND

      On November 28, 2013, police and paramedics were dispatched to
appellant’s residence, where they found appellant’s 11-month-old son, K.P.,1 lying
on the floor. The child did not have a pulse and was not breathing, and attempts to
resuscitate him were unsuccessful. K.P. was taken to the hospital and pronounced
dead. The autopsy showed a fatal skull fracture among approximately 40
contusions and abrasions to K.P.’s head and neck, along with a broken rib.

       During the investigation of the incident, Harris County Sheriff’s Office
Officer Clopton interviewed appellant three times. Prior to the third interview,
Clopton procured a warrant for appellant’s arrest, which he did not serve on
appellant or inform appellant of during the initial portion of the interview. After a
break, Clopton arrested appellant and read him the warnings required by Miranda
v. Arizona, 384 U.S. 436 (1966), and Code of Criminal Procedure article 38.22.
See Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2–3. At trial, appellant moved to
suppress the recording of the interview on the grounds that appellant should have
received the warnings at the start of the interview. The trial court denied the
motion. Appellant did not request jury instructions concerning the voluntariness of

      1
         We use the victim’s initials as he was a minor when the offense was committed. See
Tex. R. App. P. 9.10(a)(3), (b).

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his statement.

      On January 26, 2018, appellant was sentenced and filed a notice of appeal,
in which appellant’s trial counsel sought permission to withdraw and appellant
requested appointment of appellate counsel due to indigence. The trial court did
not rule on trial counsel’s motion to withdraw, with the court’s order stating that
“[Trial] Counsel’s motion to withdraw is Granted/Denied” without choosing either
option. The trial court’s order also indicated that appellant’s request for appellate
counsel was granted but left blank the space for naming the appointed appellate
lawyer, specifically stating that “Defendant/appellant’s motion is Granted and
[blank space] is appointed to represent defendant/appellant on appeal.”

                                   II.    ANALYSIS

   A. Assistance of counsel during the period for filing a motion for new trial
      In his first issue, appellant argues he was denied the assistance of counsel
during the 30-day period for filing a motion for new trial. See Tex. R. App. P.
21.4(a) (30 days to file motion for new trial after trial court imposes sentence). The
Court of Criminal Appeals of Texas has held, “as a matter of federal constitutional
law, that the time for filing a motion for new trial is a critical stage of the
proceedings, and that a defendant has a constitutional right to counsel during that
period.” Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007). In cases in
which a defendant is represented by counsel during trial, there is a rebuttable
presumption that trial counsel “continued to adequately represent the defendant
during this critical [motion-for-new-trial] stage.” Id.

      Appellant argues that “[t]here is no Court Order appointing anyone to
represent Appellant on Appeal,” concluding that, “[o]n this record, Appellant was
not represented during the critical thirty (30) day period for filing a motion for a
new trial.” Even if we look solely at the trial court’s order, appellant’s argument
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fails. The January 26 order supports appellant’s contention that, at least as of
January 26, the trial court had not appointed appellate counsel. The trial court’s
order, however, does not release appellant’s trial counsel from his duties, as it
neither grants nor denies trial counsel’s motion to withdraw. In the absence of
evidence to the contrary, we must presume that trial counsel continued in his duties
in representing appellant, as trial counsel was obligated to continue representing
appellant through the appellate process unless he was permitted to withdraw by the
trial court or relieved by the appointment of appellate counsel—neither of which
occurred on January 26 based on the strict reading of the trial court’s order that
appellant urges. See Oldham v. State, 977 S.W.2d 354, 361–63 (Tex. Crim. App.
1998) (explaining that trial counsel remains defendant’s counsel for all purposes
until expressly permitted to withdraw and is presumed to continue to represent
defendant absent evidence showing otherwise).2


       2
          The record contains substantial evidence showing that appellant was represented by
counsel during the period for filing a motion for new trial. On January 31, 2018—five days after
the trial court imposed appellant’s sentence—as part of appellant’s Pauper’s Oath on Appeal,
Cynthia Cline signed an affirmation stating she “will be solely responsible for writing a brief and
representing the appellant on appeal.” In addition, a letter dated February 6, 2018—still well
within the 30-day period for filing a motion for new trial—from the Harris County District Clerk
to Cline concerning this case includes a line-entry stating, “Appeal Attorney of Record:
CYNTHIA CLINE.”
         In addition, the trial court’s docket sheet contains an entry dated January 31, 2018,
stating, “The defendant filed a sworn pauper’s oath, and JUDGE JOHNSON, KELLI DIANE
ordered CLINE, CYNTHIA J appointed as Appointed Atty On Appeal.” Appellant correctly
notes that a docket entry cannot control over a written order. See Hernandez v. State, 84 S.W.3d
26, 32 n.3 (Tex. App.—Texarkana 2002, pet. ref’d) (docket sheet “may supply facts in certain
situations, but it cannot be used to contradict or prevail over a final judicial order” (quoting N-S-
W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977)). Still, at least one of our sister courts of
appeals has credited a docket entry as evidence that a defendant was represented by counsel
during the period for filing a motion for new trial, albeit in an unpublished opinion. See Scull v.
State, No. 05-96-01718-CR, 1998 WL 340819, at *1 (Tex. App.—Dallas June 29, 1998, no pet.)
(mem. op., not designated for publication) (concluding defendant was represented during period
for filing motion for new trial when “the trial court’s docket sheet contains an entry stating that
appellate counsel was appointed and notified of her appointment by telephone”).

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          As appellant has failed to rebut the presumption he was represented by
counsel during the period for filing a motion for new trial, we overrule appellant’s
first issue.

   B. Jury instructions concerning voluntariness of statement

          In his second and third issues, appellant argues the trial court erred by failing
to give jury instructions concerning the voluntariness of his third statement to the
police under Code of Criminal Procedure article 38.22, sections 6 and 7. Section 6
states:

          In all cases where a question is raised as to the voluntariness of a
          statement of an accused, the court must make an independent finding
          in the absence of the jury as to whether the statement was made under
          voluntary conditions. . . . Upon the finding by the judge as a matter of
          law and fact that the statement was voluntarily made, evidence
          pertaining to such matter may be submitted to the jury and it shall be
          instructed that unless the jury believes beyond a reasonable doubt that
          the statement was voluntarily made, the jury shall not consider such
          statement for any purpose nor any evidence obtained as a result
          thereof. . . .

Tex. Code Crim. Proc. Ann. art. 38.22, § 6.

          Section 7 states, “When the issue is raised by the evidence, the trial judge
shall appropriately instruct the jury, generally, on the law pertaining to such
statement.” Id. § 7. For purposes of section 7, “the issue” refers to compliance with
the statutory warnings set forth in Code of Criminal Procedure articles 15.17
(duties of arresting officer and magistrate) and 38.22, sections 2 and 3 (expanded
Miranda warnings), and the voluntariness of the defendant’s waiver of those rights.
Oursborn v. State, 259 S.W.3d 159, 176 (Tex. Crim. App. 2008) (citing Tex. Code
Crim. Proc. Ann. arts. 15.17, 38.22, §§ 2–3).

          While appellant’s trial counsel did not request jury instructions concerning


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the voluntariness of appellant’s third statement under Code of Criminal Procedure
article 38.22, such instructions are mandatory if there is sufficient supporting
evidence. See Tex. Code Crim. Proc. Ann. art. 38.22, §§ 6–7; Oursborn, 259
S.W.3d at 178–81. An instruction under section 6 is warranted “if, based on the
evidence presented at trial, a reasonable jury could conclude that the statement was
not voluntary.” Vasquez v. State, 225 S.W.3d 541, 545 (Tex. Crim. App. 2007).
For a section 7 instruction to be mandatory, there “must be a genuine factual
dispute” as to the voluntariness of the statement. Oursborn, 259 S.W.3d at 176.

      Appellant argues he was entitled to jury instructions regarding the
voluntariness of his third statement to Clopton because he was in custody during
the first portion of the interview, but had not received Miranda warnings or
warnings under article 38.22, sections 2 and 3. See Tex. Code Crim. Proc. Ann. art.
38.22, §§ 2–3; Oursborn, 259 S.W.3d at 169 (explaining that failure to give
expanded Miranda warnings under sections 2 and 3 is one potential ground for
involuntariness challenge); see also Miranda, 384 U.S. at 444–45. A person is
considered “in custody” if a reasonable person in the same circumstances would
have perceived his physical freedom to be restricted “to the degree associated with
a formal arrest.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)
(citing Stansbury v. Cal., 511 U.S. 318, 322 (1994)). “The determination of
custody must be made on an ad hoc basis, after considering all of the (objective)
circumstances.” Dowthitt, 931 S.W.2d at 255 (citing Shiflet v. State, 732 S.W.2d
622, 629 (Tex. Crim. App. 1985)). The court of criminal appeals has established
four general situations which may constitute custody: (1) if the suspect is
physically deprived of his freedom in any significant way; (2) if a peace officer
tells the suspect not to leave; (3) if a peace officer creates a situation that would
lead a reasonable person to believe that his freedom of movement has been


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significantly restricted; or (4) if there is probable cause to arrest the suspect, and
the peace officer does not tell the suspect he is free to leave. Id.

       Appellant claims he was in custody because the evidence before the jury
showed that Clopton “had a warrant in his pocket at the time of the third interview
after which Appellant was arrested, and [Clopton] was not being truthful with
Appellant when he told him he was free to go.” This evidence, even if true, does
not support the notion that appellant was in custody. While Clopton had a “pocket
warrant” for appellant’s arrest at the time of the interview, he testified that he did
not make appellant aware of it. To the extent appellant argues he was in custody on
the basis there was probable cause to arrest him and Clopton did not tell him he
was free to leave, the fact that appellant was unaware of the warrant defeats the
premise. An officer’s knowledge of probable cause only bears on the question of
custody if it is somehow communicated to the suspect; that is, if “the manifestation
of probable cause, combined with other circumstances, would lead a reasonable
person to believe that he is under restraint to the degree associated with an arrest.”
Id. (emphasis added). It is undisputed that appellant was unaware of the warrant.3
Moreover, Clopton testified that appellant voluntarily accompanied Clopton to the
station for the interview and that Clopton told appellant before beginning the
interview that it was voluntary. These facts support the conclusion that appellant
was not in custody, as a reasonable person would not have perceived his physical
freedom to be restricted to the degree associated with a formal arrest. Id. at 254.

       We accordingly conclude that the evidence before the jury did not raise a
genuine issue as to the voluntariness of appellant’s third statement and that a
       3
         To the extent appellant argues that his statement was involuntary because it was induced
by deception due to Clopton’s failure to disclose the warrant, this argument also fails because
appellant was not aware of the warrant. See Flemming v. State, 949 S.W.2d 876, 879 (Tex.
App.—Houston [14th Dist.] 1997, no pet.) (“Logic dictates that before facts or circumstances
can compel a defendant to make an involuntary statement, he must know of them.”).

                                               7
reasonable juror could not have concluded that the statement was made
involuntarily. Under these circumstances, the trial court was not obligated to
instruct the jury in accordance with Code of Criminal Procedure article 38.22,
sections 6 and 7. See Oursborn, 259 S.W.3d at 176. We overrule appellant’s
second and third issues.

   C. Ineffective assistance of counsel

      In his fourth issue, appellant argues that his trial counsel “was
constitutionally ineffective in failing to object to the Court’s charge for not
including the instructions required by [Code of Criminal Procedure article 38.22,]
Sections 6 and 7.” Both the federal and state constitutions guarantee an accused the
right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. This
right necessarily includes the right to reasonably effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez v. State, 726
S.W.2d 53, 55 (Tex. Crim. App. 1986) (applying Strickland standard to
ineffective-assistance claims under Texas Constitution). To prevail on his claims of
ineffective assistance of counsel, appellant must prove (1) counsel’s representation
fell below the objective standard of reasonableness and (2) a reasonable probability
that, but for counsel’s deficiency, the result of the proceeding would have been
different. See Strickland, 466 U.S. at 687–88; Hernandez, 726 S.W.2d at 55. In
considering an ineffective-assistance claim, we indulge a strong presumption that
counsel’s actions fell within the wide range of reasonable professional behavior
and were motivated by sound trial strategy. Strickland, 466 U.S. at 689; Duncan v.
State, 717 S.W.2d 345, 347–48 (Tex. Crim. App. 1986).

      There was no record developed below concerning trial counsel’s strategy, so
we will not hold counsel’s performance was deficient “unless the challenged
conduct was ‘so outrageous that no competent attorney would have engaged in it.’”

                                          8
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia
v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). As we previously
determined that appellant was not entitled to jury instructions on voluntariness
under article 38.22, sections 6 and 7, we likewise determine that trial counsel’s
performance in not requesting the instructions did not fall below the objective
standard of reasonableness. See Strickland, 466 U.S. at 687–88; Hernandez, 726
S.W.2d at 55. We overrule appellant’s fourth issue.

   D. Deadly-weapon finding

      In his fifth issue, appellant argues that the trial court erred in making a
finding of the use of a deadly weapon in its judgment. In the section of the
judgment marked “Findings on Deadly Weapon,” the judgment states, “YES, NOT
A FIREARM.”

      The jury found appellant “guilty of injury to a child, as charged in the
indictment.” The indictment reads:

      Before me, the undersigned Assistant District Attorney of Harris
      County, Texas, this day appeared the undersigned affiant, who under
      oath says that he has good reason to believe and does believe that in
      Harris County, Texas, TREMAINE DESHAUN RACHAL, hereafter
      styled the Defendant, heretofore on or about NOVEMBER 28, 2013,
      did then and there unlawfully, intentionally and knowingly cause
      SERIOUS BODILY INJURY to [K.P.], hereinafter styled the
      Complainant, a child younger than fifteen years of age, by STRIKING
      THE COMPLAINANT WITH A DEADLY WEAPON NAMELY,
      HIS HAND.
      It is further presented that in Harris County, Texas, TREMAINE
      DESHAUN RACHAL, hereafter styled the Defendant, heretofore on
      or about NOVEMBER 28, 2013, did then and there unlawfully
      intentionally and knowingly cause SERIOUS BODILY INJURY to
      [K.P.], hereinafter styled the Complainant, a child younger than
      fifteen years of age, by STRIKING THE COMPLAINANT WITH A
      DEADLY WEAPON NAMELY, AN UNKNOWN OBJECT.

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      It is further presented that in Harris County, Texas, TREMAINE
      DESHAUN RACHAL, hereafter styled the Defendant, heretofore on
      or about NOVEMBER 28, 2013, did then and there unlawfully
      intentionally and knowingly cause SERIOUS BODILY INJURY to
      [K.P.], hereinafter styled the Complainant, a child younger than
      fifteen years of age, by STRIKING THE COMPLAINANT
      AGAINST AN UNKNOWN OBJECT.
      Appellant argues that, because one of the three paragraphs in the indictment
does not include the phrase “deadly weapon,” there is a risk that the jurors were
not unanimous as to a deadly-weapon finding. However, each paragraph contains
the phrase “serious bodily injury,” which, according to the court of criminal
appeals, necessarily implies a deadly-weapon finding: “If a deadly weapon is
anything that is capable of causing death or serious bodily injury, and the
indictment alleges that the defendant caused death or serious bodily injury, and the
jury finds the defendant guilty as charged in the indictment, the verdict is
necessarily a finding that a deadly weapon was used.” Crumpton v. State, 301
S.W.3d 663, 665 (Tex. Crim. App. 2009); see Tex. Penal Code Ann.
§ 1.07(a)(17)(B) (defining “deadly weapon” as “anything that in the manner of its
use or intended use is capable of causing death or serious bodily injury”). We
overrule appellant’s fifth issue.

                                    III.   CONCLUSION

      We affirm the trial court’s judgment.



                                           /s/    Charles A. Spain
                                                  Justice

Panel consists of Justices Wise, Zimmerer, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).


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