             PD-1364-17
                                                       March 9, 2018

              NO.               _

                     IN THE

           COURT OF CRIMINAL APPEALS

                    OF TEXAS




              RICKY ALLEN DYISE,
                             Appellant/Petitioner

                       VS.

              THE STATE OF TEXAS,
                              Appellee/Respondent



      ON APPEAL IN CAUSE NO. 05-16-01408-CR
   FROM THE FIFTH DISTRICT OF TEXAS AT DALLAS
             IN CAUSE NO. F16-54228-M


APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


                                    Juanita Bravo Edgecomb
                                      State Bar No: 24029529
                                      Attorney for Appellant

                                              - 306 Sixth St.
                                      Waxahachie, TX 75165
                                        (972) 845-7131 (PH)
                                        (469) 342-8057 (fax)
                                         edgelaw@live.com
                              LIST OF PARTIES

APPELLANT
Ricky Allen Dyise

APPELLEE
The State of Texas

DEFENSE COUNSEL AT TRIAL
Nicolas Quezada
Dallas County Public Defender's Office
133 N. Riverfront Blvd,
Dallas, TX 75207

TRIAL COURT JUDGE
The Honorable Ernest White
194thDistrict Court of Dallas County, Texas
133 N. Riverfront Blvd, 7thFl.
Dallas, TX 75207-4313

STATE'S ATTORNEY AT TRIAL
Meredith BehgQ9Y
               ,,

Frank Crowley Criminal Courts Building
133 N. Riverfront Blvd
                    ;

Dallas, TX 752Q7-4313
                "
               ~i .

APPELLANT'S ATTORNEY AT 5TH COURT OF APPEALS
Juanita Bravo ~qgecomb
Attorney at Law"...
306 Sixth Street.,
Waxahachie, T~~as 75165
                I
                 ,.
STATE'S ATTORNEY ON APPEAL
Grace E. Shin , f


Frank Crowley Criminal Courts Building
133 N. Riverfrortt Blvd
Dallas, TX 752Q7-4313
                i       i




                                         11
               "




              ,!



STATE'S PROSECUTING ATTORNEY
P. 0 Box 12405
Austin, Texas 78711

APPELLATE COURT JUDGES:
The Honorable Francis, Evans and Boatright
5th Court of Appeals
600 Commerce St, Suite 200
Dallas, Texas 75202




               "'.

               j ~




              ,    ;\




                                      11l
                         TABLE OF CONTENTS

IDENTITY OF ·PARTIES                                                     11-111


TABLE OF CONTENTS                                                          .iv
INDEX OF AUTHORITIES                                                         v
STATEMENT REGARDING ORAL ARGUMENT                                             1
STATEMENT OF THE CASE                                                         1
STATEMENT OF PROCEDURAL HISTORY                                              2
GROUND FOR REVIEW NO. 1                                                      3


      The Court of Appeals erred in reaching its conclusion that the
        Record was unclear as to whether Appellant's trial counsel
          provided effective representation by failing to investigate
     Appellant's priors and "opening the door" to extraneous offenses
      and/or~ad character evidence when the record clearly reflected
        that if served no purpose to inquire into Appellant's violent
     demeaner other than to prejudice Appellant's ability to present a
             1.                                                .


                                   defense.
             f\...''

PRAYERFOR.RELIEF
           ,._.                                                            13
CERTIFICATE OF SERVICE                                                      14
APPENDIX A: [COA Opinion]                                                   15




             r. r




                                    IV
                           INDEX OF AUTHORITIES

CASES:

Abnor v. State,
      871 S.W.2d 726 (Tex. Crim. App. 1994)                                 7

Andrews v. State,
      159 S.W.3d 98 (Tex. Crim. App. 2005)                        :         7

Black   v.State, .:
        816 S.W.2d 350 (Tex. Crim. App. 1991)                               5

Butler v. State,
       716 S.W.2d 48 (Tex. Crim. App. 1986)                                 9

Cook v. State,
      240 S.W.3d 906 (Tex. Crim. App. 2007)                                 9
                 "




Doles v. State,
      786 S.W.f,d 741 (Tex. App. - Tyler 1989, no pet.)                     8
                 "
                 .)

Ex parte Harrington,
      310 S.W.3d 452 (Tex. Crim. App. 2010)                                 9

Garcia v. State,
      308 S.W.3d 62 (Tex. App. - San Antonio, 2009)                       7-8

Hernandez v. State,
      726 S.W.2d 53 (Tex. Crim. App. 1986)                                  5
                 ':t.

Jackson v. State,
      857 S.W.2d 678 (Tex. App. - Houston [14thDist.] 1993, pet. ref'd)    9

Me Wherter v. State,
        624 S.W.7'p
                ~...
                 \.
                     712 (Tex. App. - Houston [14thDist.] 1981)
                      '
                                                                          10




                                         v



                     . I
                      '"


                      -,




Melgar v. State"
       236 S.W.3d 302 (Tex. App - Houston [1stDist.], 2007, pet. refd)     10

Nobles v. State,
       843 S. W.2d 503 (Tex. Crim. App. 1992)                               7

Powell v. State, '
       63 S.W.3d 435 (Tex. Crim. App. 2001)                                10

Robbins   v.   State"
       88 S.W.3d' 256 (Tex. Crim. App. 2002)                               10
                           ,   ,

Robertson      v.   State,
       187     s.w.s; 475          (Tex. Crim. App. 2006)                  7
                       ",
                           Y                                        'I

Robertson v. State,
       214 S.W.3d 665 (Tex. App. - Waco, 2007)                             7

Stokes v. State,
       298 S.W.3d 428 (Tex. App. - Houston [14th Dist.] 2009, pet. refd)   9
                       (:
                       •<
Strickland     v.   Washington,
       466 U.S. 668 (1984)                                                 5

                                                  Code
TEX. CODE CRIMi;PROC. ART 37.07, SEC.3(g)                                  6
                       '.,
                       ,j"




                                                Statutes

TEX. CONST., ARt. I § 10                                                   5

                           ';
U.S. CONST. VI::                                                           x

                           "
U.S. CONST. XIV                                                            x




                                                   VI
                         Rules
TEX.   R. EVID. 403              10


TEX.   R. EVID. 404(a)           10


TEX.   R. EVID. 404(b)           10




                  Ii




                 ,   .




                          Vll
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

      Appellant/Petitioner   respectfully   submits this Petition for Discretionary

Review and moves that this Honorable Court grant review of this cause and offers

the following in support thereof:

              STATEMENT REGARDING ORAL ARGUMENT

      The Appellant/Petitioner      requests oral argument in this case because such

argument may assist the Court in applying the facts to the issues raised.          It is
                 ;.:
suggested that oral argument may help simplify the facts and clarify the issues.

                          STATEMENT OF THE CASE

      Appellant was convicted of ObstructionlRetaliation.      Appellant was found

guilty and subsequently assessed a punishment at ten (10) years imprisonment,
                T                                                    _
suspended for six (6) years community supervision, and a $1,000 fine.
                    i

                ',:' i




                                            1
                           PROCEDURAL HISTORY

      In Cause No. F 16-54228 the AppellantlPetitioner      was charged with the

offense: Obstruction / Retaliation in the 194th District Court of Dallas County, the

Honorable Ernest White, presiding. The AppellantlPetitioner      was convicted of

such offense on October 20, 2016 and appealed the conviction. On December 8,

2017, the 5th Court of Appeals affirmed the conviction. No motion for rehearing

was filed. On February 20, 2018 this Petition for Discretionary Review was timely

forwarded to the Court of Appeals for filing pursuant to Rule 9.2(b), Texas Rules

of Appellate Procedure.




               1 '.




                                         2
                              GROUND FOR REVIEW No.1

         The Court of Appeals erred in reaching its conclusion that the
          Record was unclear as to whether Appellant's trial counsel
            provided effective representation by failing to investigate
       Appellant's priors and "opening the door" to extraneous offenses
        and/or bad character evidence when the record clearly reflected
          that it served no purpose to inquire into Appellant's violent
       demeanor other than to prejudice Appellant's ability to present a
                                      defense.

                              ARGUMENT NUMBER ONE

      At trial, Appellant's trial counsel "opened the door" to extraneous offenses

which benefitted the State to introduce Appellant's         extensive criminal record .
                .'"j

Appellant's   trial attorney, then failed to object to the introduction        of these

extraneous offenses. Defense counsel also admitted, on the record, that he failed to

investigate the nature of these extraneous offenses which again, "opened the door"

to bad character evidence. This failure allowed the State to paint Appellant as the

type of person who acted in conformity with the charged behavior and was
                .\
therefore more likely to have committed the charged offense.
                , r ~




      No reasonably          competent   attorney would have "opened the door" to
                ;11

extraneous offense in such circumstances unless the trial attorney was not familiar

with Appellant's        criminal history. There could be no possible trial strategy for
                .1"
failing to investigate your own client's criminal history, particularly one on trial for

a Retaliation case coupled with a history of a violent past, and then asking him:

                                              3
                I i~
                   '.'




"do you consider yourself in any way, shape, or form a violent person?" (RR3:
                   .     ,


161-164). Counsel's failure to investigate Appellant's criminal record fell below an

objective     standard of reasonableness    and likely prejudiced   the outcome of

Appellant's trial

      The Fifth-Court of Appeals rejected Appellant's       ineffective assistance of

counsel claim because it argued rarely will the record "on direct appeal" be

developed to apoint that it can "adequately reflect the failings of trial counsel."
                    il.~


(Mem. Op. at * 5). Therefore, the Court reasoned that when direct evidence is not
                  i·,:.

available, it assumed counsel had a strategy, "if any reasonably sound strategic

motivation can be imagined." Id. The Court used this finding to dispose of
                   L
Appellant's    claim of ineffective assistance of counsel, reasoning that "a silent
                  , Ii ,~



record" which offers no explanation         for trial counsel's   strategy cannot be

"denounced      as ineffective"   because the record provides "no explanation      for
                       I
counsel's actions or omissions." Id. at *5-6 .
                ..~
      Contrary to the Court of Appeals OpInIOn, the law and the record
                  'J"



demonstrate that the Court of Appeals should have reversed and remanded this

case for a new trial because (1) there can be no possible reasonable trial strategy
                   ii'
for "throwing your client under the bus" and (2) the record is clear there was no

objectively reasonable explanation' for trial counsel's failure to investigate his own


                                           4
                r ,




client's criminal history and then concede he had erred in "opening the door" and

then file a motion in limine to preclude the state from introducing the violent

criminal history, and then ask his own client about the very evidence he attempted

to prevent the state from introducing. Trial counsel's actions constituted ineffective

assistance of counsel.

      A criminal defendant is entitled to effective representation at trial. U.S.

CONST.Amends VI, XIV; TEX. CONST. Art. I §10. To establish an ineffective
                :'! .
assistance   of counsel claim, a defendant must show that: (1) his counsel's
                ,     ,
representation fell below an objective standard of reasonableness; and (2) there is a

reasonable probability that, but for his counsel's unprofessional errors, the result of
                :.-'
                l../.



the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
                    \.t,"
689 (1984); Black v. State, 816 S.W.2d 350, 356 (Tex. Crim. App. 1991);

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

      Under the first part of the Strickland         test, deficient performance     is

established by showing that counsel made errors so serious that counsel was not
                C,          '



functioning as the "counsel guaranteed" by the Sixth Amendment. Strickland, 466

U.S. at 687. Under the second part of the Strickland test, prejudice is established
                    .\          .
by showing that counsel's errors were so serious as to deprive the defendant of a
                 I .
                t.t i
fair trial; l.e., that there is a reasonable probability that, but for counsel's


                                           5


                    '.
                    c '.
unprofessional errors, the result of the proceeding would have been different. Id. at

694, 687. On direct appeal, the question of whether Appellant's trial counsel was

ineffective focused on there being "no record" to establish trial counsel's strategy.

The Trial Record - Extraneous             Offenses:

   1) Prior to trial, the State filed: "State's Notice of Intent to Introduce Evidence

      of Extraneous Offenses pursuant to Tex. R. Crim. Evid. 404(b), Tex. Code

      Crim Proc. Art. 37.07, see 3(g)." (CR: 37-40).
                \   ..~:'                                                      ;

   2) Appellant's counsel made an "on record" argument referencing the State's
                    't
      Notice and filed his own Motion in Limine asking that the State not be
                .s
      allowed to go into Appellant's prior convictions unless they approached .
                .   -"
      (RR2: 4-5) (RR3: 6).
                    ,1
   3) Appellant's            trial attorney was clearly aware of Appellant's       pnors: "the
                ..   ~
      officer who wrote the report mentions that as one of the basis, I guess,
                    '",
      for his fear, which is sort of an element of the offense, he says that the
                    ,
      defendant has a prior violent history." (RR2: 5-6).
                     i,


   4) During the cross of the officer who wrote the report, Appellant's                   trial

      counsel inquired into why he "feared" Appellant. (RR3: 72-74).
                     '. I
   5) The State argued Appellant "opened the door" to extraneous offenses; the
                    ,
                    i. .
                         '
      court agreed; Appellant's trial counsel did not object, but merely stated:


                                                 6
      "Sure, I understand." (RR3: 72-74).

      An accused may be tried only for the offense charged and not for some

collateral crime or for being a criminal generally. Nobles v. State, 843 S.W.2d 503,

514 (Tex. Crim. App. 1992). The introduction of extraneous offenses to the jury is

inherently prejudicial and can harm a defendant because it requires the defendant

to defend against not only the charged offense but also his uncharged actions.

Abnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994).

      Defense counsel can be held to be ineffective if there is no reasonable trial
                .\   ..•..

strategy for bringing inadmissible prior convictions to light. Garcia v. State, 308
                     "-
S.W.3d 62, 68 (Tex. App. - San Antonio, 2009). When there is no reasonable trial

strategy that can justify trial counsel's conduct, counsel's performance falls below
                «.
an objective standard of reasonableness as a matter of law, regardless of whether
                 1:·
the record adequately reflects trial counsel's subjective reasons for acting as he did.
                ~.,
Andrews v. State, 159 S.W.3d 98, 101-102 (Tex. Crim. App. 2005); Robertson v.
                (\

State, 187 S.W.3d 475 (Tex. Crim. App. 2006), reversed and remanded by
                11'.'                                                  \:
Robertson v. Stale, 214 S.W.3d 665 (Tex. App. - Waco, 2007).
                      I                                                .
      There is no strategic value to allow admission of prejudicial and clearly
                it
inadmissible evidence. Robertson v. State, 187 S.W.3d at 484-86 (holding that
                ..:
where defense. depended      on defendant's     credibility,   there was no possible


                                          7
reasonable   strategy and defense counsel rendered              deficient performance   by

intentionally eliciting and opening the door to otherwise inadmissible evidence);

See also Garcia v. State, 308 S.W.3d at 68-69 (Tex. App. - San Antonio, 2009, no

pet. ) (defense counsel opening door to extraneous offenses served no purpose other

than prejudicing defendant's           ability to present a defense); Doles v. State, 786

S.W.2d 741, 74~ (Tex. App. - Tyler 1989, no pet.) (trial counsel's failure to make

objections to evidence of extraneous offenses was ineffective assistance which

adversely affected appellant's defense).
                  ,,
                  )




The Trial Record - Failure to Investigate:
                  ! .
   1) Appellant testified on his own behalf. During direct, his trial attorney asked
                ~,)        ~
      him: "do you consider yourself to be in any way, shape, or form a violent

      person?" ~ppellant denied he was a violent person. (RR3: 161).
                .     (,
   2) The State argued Appellant "opened the door" to bad character evidence.
                      'v
      (RR3: 164, 171).
                       "




                      ','

   3) Appellant's violent priors came into evidence which included notice of a
                Jr.
      protectiveorder           issued against Appellant. (RR3: 178-180).
                  l i                                                       ;
   4) Appellant's trial attorney argued he had not reviewed the protective order
                           \                                                !
      prior to trial, although a copy was available for his view on Monday. (RR3:

      180-182).



                      -,    .                    8
   5) The trial court asked trial counsel: "any reason you didn't ask to see it

      on Monday?" Trial counsel replied: "No, your Honor." (RR3: 180-182).

      An ineffective assistance of counsel claim may be based on inadequate

performance during the investigation or preparation of the case. Butler v. State, 716

S.W.2d 48, 54-57 (Tex. Crim. App. 1986); Jackson v. State, 857 S.W.2d 678, 683

(Tex. App. - Houston [14th Dist.] 1993, pet. refd).           However, a claim for

ineffective assistance based on trial counsel's general failure to investigate fails
                1          I

absent a showing of what the investigation would have revealed that reasonably
                (;"j
                r.••.~


could have changed the result of the case. Cook v. State, 240 S.W.3d 906, 912
                .•....."

(Tex. Crim. App. 2007); Stokes v. State, 298 S.W.3d 428, 432 (Tex. App. -
                . ('       ~
Houston [14th Dist.] 2009, pet. refd); See also Ex parte Harrington, 310 S.W.3d
                 ).

452, 459 (Tex. Crim. App. 2010) (counsel's failure to conduct even a cursory
                   1r
investigation into a prior DWI conviction which was used to enhance to a felony
                3t
DWI constituted deficient performance).
                Ii.
      In this case, trial counsel's error reasonably changed the result of the trial

given that the State was given the opportunity to question Appellant about specific
                 ...       ~
instances of conduct including that a protective order existed, that he got into fights
                   ,.
                       ".
and interfered with public duties. (RR3: 183, 186).         As such, trial counsel's
                           (
representation can only be characterized as ineffective.


                       .., -.
                       i
                                           9
The Trial Record - Bad Character        Evidence:

   1) Appellant's trial counsel elicited the following exchange:

          [COUNSEL]: I mean, do you - do you - do you consider yourself to
          be in any way, shape, or form a violent person?

          [DYISE]: I'm not a violent person.

(RR3: 161).

   2) The State argued Appellant "opened the door" to bad character evidence.

      (RR3: 16~, 171).

   3) Appellant's violent priors came into evidence. (RR3: 178-180).

      In general., evidence of a pertinent character trait offered by an accused in a
                ..
                ','
criminal case, or by the prosecution   to rebut the same, is admissible. Tex. R. Evid.
                ,t
404(a)(1)(A).   Texas law provides, "[e]vidence of other crimes, wrongs or acts is

not admissible to prove the character of a person in order to show that he acted in

conformity therewith. It may, however, be admissible for other purposes, such as
                -r
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
                , .
               ..
absence of mistake or accident." TEX. R. EVID. 404(b). Despite its admissibility
                 ,
                d·
under Rule 404(b), or any other rule of evidence, "evidence may be excluded if its
                 ,
probative value is substantially outweighed by the danger of unfair prejudice."
                .( t

TEX.R. EVID.403.
                ,.:   ~
      The introduction of character evidence may be admissible when it is relevant

                                           10
                 ".
                l.... .. ,
to a noncharacter conformity fact of consequence in the case, such as rebutting a

defensive theory. Robbins v. State, 88 S.W.3d 256, 259 (Tex. Crim. App. 2002);

Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Generally, character

evidence is not admissible to show that a person acted in conformity with a

character trait on:a particular occasion. Tex. R. Evid. 404(a). However, an accused

in a criminal case is permitted to introduce evidence of a specific good-character

trait to show that it is improbable that he committed the charged offense, when that

character trait i~'relevant to the offense. ld. A "pertinent character trait" relates to
                 \      .                                               .   .
a trait involved in the offense charged or a defense raised. Melgar v. State, 236
                       (
S.W.3d 302, 306-307 (Tex. App - Houston [1stDist.], 2007, pet. ref d). When the

accused believes that his case will be strengthened by proof of his good character,
                  ';-f
                .J



the door may be opened to proof by the prosecution that the accused's character is

actually bad. McWherter v. State, 624 S.W.2d 712 (Tex. App. - Houston [14th

Dist.] 1981).
                :'l'
      In a prosecution for a crime of violence, the defendant's character for being

peaceful is pertinent, because evidence of peaceful character makes it less likely
                 ( -.
                 I.'

that the defendant committed the crime charged. ld. By asking Appellant if he
                  d


considered himself to be a "violent person" in a retaliation case was clearly a high

risk move especially when trial counsel admitted he did not investigate his prior
                 t
                 ,:',.




                                           11
                    ,-



offenses. Trial counsel opened the door to the very evidence he tried to exclude in

his Motion in Limine. Once Appellant denied he was a violent person, the State

exploited the bad character evidence and argued it was admissible to rebut any

defensive theory that Appellant had "never before been in this much trouble."

(RR3: 177).

       Appellant's trial counsel fell below an objective standard of reasonableness

because he questioned the witness and his own client about his own client's priors

without conducting an investigation      into the priors and by inquiring into a

witnesses' fears when he knew what the answer would be. There could be no
                I,i~
                   .
possible strategy for the inquiry unless you intend to prejudice your client to the
                     '\                                                ,   ~
point that it prevents Appellant from receiving a fair trial and there is a reasonable

probability that, but for his trial counsel's unprofessional errors, the result of the
                    t'
proceeding would have been different.
                    ",


       Failing to investigate opened the door to Appellant's prior violent criminal
                    ".!
record. Up to that point, the jury had a mental picture of a homeless man who got
                 -,
into an altercation with an officer. This could have resulted in an acquittal rather
                    "
than conviction.'
                     ..~                                                   l
      The Court of Appeals improperly concluded there was no explanation for

trial counsel's actions or omissions, therefore he could not be "denounced as
                      l.-
                    :jl..




                                          12
                   .   ,,
               ;
                    .  \




ineffective." Tr-ial counsel admitted, on the record, he had "no reason" for his

failure to investigate and given his actions, there is no possible sound strategic

motivation which can be imagined but to prejudice Appellant. Appellant is entitled

to have his conviction reversed and his cause remanded for a new trial.

                                   PRAYER FOR RELIEF

      For the reasons stated above, it is respectfully submitted that the Court of

Criminal Appeals of Texas should grant this Petition for Discretionary Review.
               d:
                                         Respectfully submitted,

                                         /S/ Juanita Bravo Edgecomb

                                         Juanita Bravo Edgecomb
                                         State Bar Number: 24029529
                                         ATTORNEY FOR APPELLANT

                                         306 Sixth St.
                   '   ...•
                       "••-t.
                              ".         Waxahachie, Texas 75165
                                         (972) 845-7137 (telephone)
                                         (469) 342-8057 (fax)
                                         edgelaw@live.com




                       ,   ~  ,


                                           13
                         CERTIFICATE OF SERVICE

The undersigned Appellant/Petitioner hereby certifies that a true and correct copy

of the foregoing Petition for Discretionary Review has been hand delivered and e-

served to the District Attorney, Appellate Division, Frank Crowley Criminal

Courts Building, 133 N. Riverfront Blvd., Dallas, TX 75207 and mailed to the

State Prosecuting Attorney, P. O. Box 12405, Austin, Texas 78711, on this the 8th

day of March, 2018.




                                     /S/ Juanita Bravo Edgecomb

               1
               L'
                     !               Juanita Bravo Edgecomb




               Ii:




                                        14
    Appendix

          A
[ATTACH COpy OF OPINION]




           15
Affirmed as Modified and Opinion Filed December 8, 2017




                                             In The
                                   Qrnurt of Appea15
                        lfl'iftl1lllintri.ct of Wexan at lllallan
                                     No.05-16-01408-CR

                             RICKY ALLEN DYISE, Appellant
                                               v.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 194th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1654228-M

                            MEMORANDUM OPINION
                         Before Justices Francis, Evans, and Boatright
                                  Opinion by Justice Francis
       After a jury convicted Ricky Allen Dyise of retaliation for threatening to assault a police

officer who had arrested him, the trial court assessed punishment at ten years in prison,

suspended for six years' community supervision, and a $1,000 fine. In a single issue, appellant

contends he received ineffective assistance of counsel. For reasons discussed below, we overrule

this issue. On our own motion, we modify the trial court's judgment to reflect the trial court

assessed punishment, which included a fine. We affirm the judgment as modified.

       Appellant is homeless and lives on the streets of Dallas. Police Sgt. Ross Stinson was

assigned to the Central Business District, an area of downtown Dallas with a homeless

population.   Stinson was on patrol on April 23, 20] 6 when he saw appellant asleep on the
sidewalk and "jostled" his foot to awaken him. He asked if appellant was okay and told him to

go somewhere else to sleep. After complaining, appellant walked away but then returned.

       Officer Brad Hance was at the scene with Stinson. Hance checked appellant's ID and

discovered three outstanding warrants for public intoxication. When Stinson told appellant he

was being arrested on warrants, appellant began walking away. Appellant became irate and

"balled his fist." To deescalate the situation, Stinson pulled out his Taser and told appellant

again that he was under arrest. The officers were then able to handcuff appellant.

       Hance transported appellant to the City Detention Center. During the drive, Hance said

appellant was "very upset" and "very loud" and said, several times, that if Stinson had tased him,

appellant would have killed him. Appellant also said that if Stinson did not "quit fucking with

people" in that area, he was "going to get killed." Once they arrived at the CDC, appellant saw

Stinson and loudly said if "you pull a Taser at me again, I'm gonna shoot you in the head."

       Sgt. Timothy Parker of the Dallas Marshal's Office was on duty at the CDC when

appellant was brought in.    Appellant was irate, screaming, and perspiring.         Appellant was

looking over his shoulder and making statements to Officer Hance "to the effect that mother - -

needs to watch out; somebody's going to kill him; if he'd hit me, I'd - - I'd shot him."      Parker

subsequently learned appellant was referring to Stinson, who was in the back writing his arrest

report. Appellant stood out to Parker because, unlike many of the arrestees who went through

the CDC and made threats, appellant did not appear to be drunk or high. Rather, Parker said

appellant was "just extremely violent" and was "grunting" and "snorting" and using his head to

"punctuate what he was saying."

       When Stinson finished making his report and walked out of the back of the building,

Parker and Hance told him about the threats appellant had been making.          Although he was

concerned, Stinson said he decided to take the matter "under advisement" and, instead of


                                               -2-
arresting appellant, wrote up a bulletin about appellant to give a "heads up" to other officers who

might come in contact with him.

       Five days later, on April 28, Stinson was driving through the same downtown

neighborhood with his car windows down when he saw someone staring at him from a crowd of

people. He realized it was appellant. While staring at Stinson, appellant said, "I'm going to fuck

you up," and took a "combative stance" with his fists balled up. Stinson recalled the previous

threats and was also concerned that appellant's willingness to fight a police officer might lead to

his harming a random citizen. So, Stinson stopped and told appellant to come over and place his

hands on his vehicle. Appellant refused. Appellant began to shed his clothes, which Stinson

believed indicated appellant was preparing for a street fight. Stinson pulled his Taser and called

for backup. Ultimately, other officers arrived and appellant was arrested.

       Stinson said appellant made threats against him and his family, saying he would kill

anybody Stinson loved and "there's nothing safe."       According to Stinson, appellant said he was

going to kill him and that "you're going to get yours." What particularly concerned Stinson was

appellant's statement, "It's not a threat, it's a promise." Stinson was concerned because he and

his wife lived in the neighborhood and were frequently in that area. A recording of appellant

after he had been restrained was admitted into evidence.       On the recording, appellant can be

heard talking about the Taser.    When the officer asked if he was making threats, appellant

responds, "I'm not making no threats; that's a promise." Minutes later, he repeatedly tells the

officers standing around him, "Y'all are not going to shock me and get away with it--ever."

       On redirect, the trial court allowed Stinson to testify that appellant's criminal background

showed appellant had threatened and committed violent crimes in the past. When asked about

those offenses, Stinson said he believed there was one retaliation and "like an agg assault." The



                                                 ...,
                                               -,)-
trial court determined appellant's counsel opened the door to this evidence by asking Stinson

what specifically caused him to fear appellant.

       Appellant testified he did not remember interacting with Stinson during the April 23

incident and did not remember anyone pulling a Taser. He did remember Stinson from the April

28 incident. Appellant said he was walking down the street and could feel someone following

behind him in a car. When he looked back, he saw Stinson and said, "What the ef are you

looking at." He believed Stinson misheard this statement to be, "I'm going to fuck you up."

       Appellant denied trying to provoke a fight that day and said his fists were balled up

because he was bracing for being tased. At one point, he testified he normally did not get in

"this much trouble," which prompted the State to argue appellant had opened the door to prior

criminal convictions. The trial court agreed and allowed the jury to hear evidence that appellant

had a protective order issued against him and had 2008 convictions for interfering with public

duties and two criminal trespasses, all involving a former girlfriend, as well as convictions in

2000 for theft and criminal trespass. Appellant denied making any threats to kill Stinson or his

family and said he harbored no ill will.

       In his sole issue, appellant contends counsel provided ineffective assistance. Appellant

complains defense counsel either "opened the door" or failed to object to the introduction of

extraneous offense and bad character evidence, failed to object to the State's argument that he

opened the door to extraneous offenses, and failed to investigate appellant's prior offenses listed

in the State's notice of intent to introduce evidence of extraneous offenses.

       A substantial risk of failure accompanies an appellant's claim of ineffective assistance of

counsel on direct appeal.    Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Rarely will a reviewing court be provided the opportunity to make its determination on direct

appeal with a record capable of providing a fair evaluation of the merits of the claim involving

                                                  -4-
such a serious allegation. Id. In the majority of instances, the record on direct appeal is simply

undeveloped and cannot adequately reflect the failings of trial counsel. Id.

         To prevail on a claim of ineffective assistance of counsel, an appellant must show that (1)

counsel's representation fell below an objective standard of reasonableness and (2) the deficient

performance prejudiced the defense; that is, but for the deficiency, there is a reasonable

probability that the result of the proceeding would have been different.              Strickland v.

Washington, 466 U.S. 668, 689 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.

2011).    Unless appellant can prove both prongs, an appellate court must not find counsel's

representation to be ineffective. Lopez, 343 S.W.3d at 142.

         We must make a "strong presumption that counsel's performance fell within the wide

range of reasonably professional assistance."       !d.   To find counsel ineffective, counsel's

deficiency must be affirmatively demonstrated in the record, and we must not engage in

retrospective speculation. Id. When such direct evidence is not available, we will assume that

counsel had a strategy if any reasonably sound strategic motivation can be imagined. Id.

         The court of criminal appeals has made clear that, in most cases, a silent record which

provides no explanation for counsel's actions will not overcome the strong presumption of

reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Further,

counsel should ordinarily be accorded the opportunity to explain his actions before being

denounced as ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).

Because the reasonableness oftrial counsel's choices often involve facts that do not appear in the

appellate record, an application for writ of habeas corpus is the more appropriate vehicle to raise

ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640,642 (Tex. Crim.

App.2002).




                                                 -5-
           Here, appellant filed a motion for new trial but did not raise a complaint of ineffective

assistance of counsel; consequently, the record before us provides no explanation for counsel's

actions or omissions.                  From this record, one could conclude there were legitimate and

professionally sound reasons for counsel's conduct or one could speculate that there were not.

And, trial counsel has not been given an opportunity to explain. Under these circumstances, we

cannot conclude appellant met the requirements of Strickland. We overrule the sole issue.

           Although neither party has raised the issue, our review of the record reveals two errors in

the judgment. The judgment shows the jury assessed punishment and it does not reflect a fine.

The reporter's record, however, shows the trial court assessed punishment, which included a

$1,000 fine.'         We have authority to correct a judgment below to make the record "speak the

truth" when we have the necessary data and information to do so. Asberry v. State, 813 S.W.2d

526, 529 (Tex. App.-Dallas                    1991, pet. ref' d). Accordingly, we modify the judgment to reflect

the trial court assessed punishment, which included a $1000 fine.

           We affirm the trial court's judgment as modified.




                                                                            /Molly Francis/
                                                                            MOLL Y FRANCIS
                                                                            JUSTICE


Do Not Publish
TEX.R. ApP. P. 47.2(b)
161408F.U05




   I   Acknowledging appellant had no money, the trial court allowed appellant's back time "to take care of the fine and all court cost."
