                           IH10-/6
                                                              ihOtlVfcU IK
ORIGINAL                        to the .             OOURTOFCRIMIWAl APPEAL
                                                     r\t




                               HONORABLE


                  COURT   OF    CRIMINAL   APPEALS
                                                              DEC 21 2016
                                                           AbeS Acqs!a, Clerk

From The Texas Court of Appeals,Third District,at Austin Texas

                      No..03-L4-00695-CR
                                                                 '   FILED IN.
                  Trial Court No-CR2013-512                 ^ofiTOF CRIMINAL APPEALS


                                                                Abel Acosta, Clerk



              PETITION    FOR   DISCRETIONARY   REVIEW




                                                              Pro'se   Brief


                                    MrApawl Daniel Campbell#1962014
                            Table   of    Content




Index of Authorities                  T                         A


Statement For Oral Arguments                                    A


Statement of     Procedural History                 ,           A


Ground   For   Review                                   A,1,2,3,4
                                   INDEX   Of    AUTHORITIES


Matthews      v.   State    830   S.W.2d    342                                    4

Phillips v. State 964 S.W.2d 735                                                 3,4

Sanders      v.    State   715    S.W.2d   771                                     4




                            Statement For Oral Arguments

       The        Petitioner contends that oral arguments should be granted

do to the nature of the arguments.




                           Statement of Procedural History

Date   of    offense:


Date   of    Sentence:


Date of Court of Appeals Affirmation:



                                    Grounds      For   Review


1. Did the Court of Appeals err when they ruled his defense counsel

was not deficient in failing to object to the State's questions on

voir   dire?


2. Did the Court of Appeals err when they ruled his counsel was

not deficient in           failing    to object to       the State's remarks regard:

ing parole law in closing argument?

3.   Did the Court of Appeals err when they ruled Defense counsel

was not deficient           in failing      to obtain an expert to test Campbell's

blood sample?




                                                 (A)
                                    Ground (1) One Argument



        The Petitioner's contention                   is    that his Sixth (6)          Amendment

of   the     United      States'     Constitution          was   violated     because    he   re


ceived       ineffective       assistance       of    counsel.        The   Petitioner    contends

that    he      received    ineffective       assistance         of    counsel    because     his


counselor failed to object to the improper questions by the prose

cutor to the prospective jurors on voir dire. The Petitioner con

tends that the the prosecutor asked the prospective jurors the

following improper questions or commitments(1)whether they believed

the main purpose of             sentencing•was rehabilitation,restitution/de

terrence, or punishment;(2)had the jurors rank their feelings about

a lengthy sentence for a first time offender in an alcohol related

offense on a scale of very uncomfortable to very comfortable;(3)

what factors from a list of factors they would consider important

in punishment;and(4)rank their feelings about whether remorse war

rants less severe punishment on a scale of strongly disagree to

strongly agree. The Petitioner contends that the prosecutor may

question a/any prospective jurors to detect any prejudices or bias

ness,but any further probing                   is suggestive on             feelings that is not

based      on    the   facts   of    the   case.     The    Petitioner      contends     that      his

counselor should have at                   least clarified what the prosecutor said

or   should       have   meant,however,his            counselor        remained    silent     or    inef

fective.




                                      Ground (2) Argument



        The Petitioner's:contention is that his Sixth (6)                               Amendment

                                                   (1)
of    the   United   States'    Constitution.was             violated   because    he   received


ineffective       assistance      of    counsel.       The   Petitioner    contends     that    he


received       ineffective     assistance        of    counsel   because    his   counselor


failed to object to the prosecutor imprpper arguments regarding

parole eligibility laws.               The Petitioner contends that the prosecu

tor in the closing argument specifically stated:                          "You heard the pa

role eligibility law.           And I can't tell you and I can't say what

it's going       to be for this particular defendant because that's left

up to       a whole bunch of other people really and his actions...                         A

person that's sentenced to 20 years is eligible to get out at ten

years of       half that sentence. You can't apply that to him,but y'all

can use that existence when detrmining a sentence the existence

of those parole eligibility laws'.' The Petitioner contends that

his counselor should have immediately objected to that improper re

marks, first those remarks was confusing, the prosecutor stated"I can't

tell you and I can't say what it's going to be for this particular defendant because that's left

up to a whole bunch of other people really and actions... ','the Petitioner counselor

should have objected and stated to                     the jury,by law a person of this

crime would be required to do half of their sentence prior of being

eligible for parole,however,being eligible for parole does not

mean you shall be granted parole.                     The Petitioner contends that any

reasonable counselor would have objected to that improper remarks

do    to the fact for clarification,nonetheless,counselor failing to

object left the impression that being eligible is being granted.

The    Petitioner     contends      that   he    has    demonstrated      his   counselor's

ineffectiveness.




                                                (2)
                     Ground   (3)   Three Arguments




      The Petitioner's contention is that his Sixth (6) Amendment

of the United States* Constitution was violated because he received

ineffective assistance of counsel. The Petitioner contends that

his counselor should have objected to the State offering false      -;:

evidence to the jury that the Petitioner had smoked marijuana on

the day of the offense,his counselor should have immediately re
quested a toxicology     report. The Petitioner contends that his
counselor's error allowed the jury to consider evidence that was

not factual,that error prejudiced and harmed his defense.



                       Ground (4)   Four Arguments




      The Petitioner's contention is that his Sixth (6) Amendment

of the United States Constitution was violated because he received

ineffective assistance of counsel. The Petitioner contends that

he received ineffective assistance of counsel because his counselor

failed to have any type of trial strategy,lay an adequate and sound
foundation for a defense. The Petitioner contends that his counselor

advised him to plead guilty,outside of the advice there was no

meeting between him and his counselor to discuss any type of strategy,

defense,or preparation for trial. The Petitioner contends that his
counselor did not challenge any of the prosecutor's theories,even

if the Petitioner plead guilty by the Texas Constitution Article

Section 10 and the Sixth (6) Amendment of the United States Consti

tution his counselor is required to render him effective assistance

of   counsel .

       "llailure of attorney to review law. and facts of case amounts
                                      (3)
to   ineffective assistance of counsel"please see,Phillips v. State
                                             )
964 S.W.2d   735;

       "Defense counsel has duty to conduct thorough independent in

vestigation of facts of crime alleged against his client,regardless

of client's representations'/please see,Sanders v. State 715 S.W.2d

771,

       "Attorney's failure to have firm command of      facts and law of

case can render his performance deficient,for purposes of Sixth A

mendment claim','please see,Matthews v.   State 830 S»W.2d 342.



                               Prayer




       The Petitioner prays that this Honorable Court would "GRANT"

this Petition For A Discretionary Review,by placing him in the posi

tion prior of his counselor's errors.


                                                 RESPECTFULLY   SUBMITTED,



                                                 Daniel Campbell#1962014




                                   )olph Brascoe Unit
                                   1459 West Highway 85
                                   Dilley,Texas 78017
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-14-00695-CR




                                Paul Daniel Campbell, Appellant




                                  The State of Texas, Appellee



     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
          NO. CR2013-512, HONORABLE GARY L. STEEL, JUDGE PRESIDING




                            MEMORANDUM                   OPINION




               Paul Daniel Campbell was indicted for the offense of intoxication manslaughter. He

pled guilty to that offense and pled true to an allegation in the indictment that a deadly weapon was

used in the commission of the offense. A jury found him guilty and assessed his punishment at

seventeen years' confinement. The trial court entered a judgment accordingly. In his sole issue on

appeal, Campbell claims that his defense counsel rendered ineffective assistance by failing to object

to certain questions and comments made by the prosecutor during voir dire and closing argument and

by failing to retain an expert to test Campbell's blood sample. For the reasons that follow, we

will affirm.
                                          DISCUSSION

I.     Ineffective assistance of counsel


               We apply the Strickland test when reviewing claims of ineffective assistance of

counsel under the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668,687 (1984); Nava

v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). To prevail on a claim, an appellant must

show by a preponderance of evidence that (1) counsel's representation fell below the standard of

prevailing professional norms and (2) there is a reasonable probability that the result of the

proceeding would have been different but for counsel's deficient performance. Strickland, 466 U.S.

at 687-88, 694; Nava, 415 S.W.3d at 307-08. There is a strong presumption that counsel rendered

adequate assistance and made all significant decisions in the exercise of reasonable professional

judgment. Mata v. State, 226 S.W.3d 425, 428 (Tex. Crim. App. 2007).

               An undeveloped appellate record will usually prevent the appellant from meeting the

first Stricklandprong, as the reasonableness of counsel's performance can be proven deficient only

through facts that do not normally appear in the appellate record. Id. at 430. If counsel has not been

afforded the opportunity to explain the reasons for his conduct, his behavior will not be found to

have been deficient unless the challenged conduct was so outrageous that no competent attorney

would have engaged in it. Nava, 415 S.W.3d at 308.
II.    Campbell has not shown that he received ineffective assistance of counsel

        A.      Defense counsel was not deficient in failing to object to the State's questions on
               voir dire


                Campbell first argues that defense counsel was ineffective in failing to object to

alleged commitment questions asked by the prosecutor of the prospective jurors on voir dire.

Specifically, he contends that the prosecutor asked improper commitment questions when he

(1) asked the jurors whether they believed the "main purpose of sentencing" was rehabilitation,

restitution, deterrence, or punishment; (2) had the jurors rank their feelings about a lengthy sentence

for a first-time offender in an alcohol-related offense on a scale of "very uncomfortable" to "very

comfortable;" (3) asked the jurors what factors from a list of factors they would consider important

in punishment; and (4) had the jurors rank their feelings about whether remorse warrants less severe

punishment on a scale of "strongly disagree" to "strongly agree." The appellate record is silent as

to why counsel failed to object to those questions. However, our review of the record reveals that

counsel's conduct was not so outrageous that no competent attorney would have engaged in it.

See Nava, 415 S.W.3d at 308.

                A commitment question attempts to commit a prospective juror to resolve or refrain

from resolving an issue a certain way after learning ofa particular fact. Davis v. State, 349 S.W.3d 517,

518 (Tex. Crim. App. 2011). It generally calls for a "yes" or "no" answer rather than providing a

range of options from which jurors may select. Id. at 519; Standefer v. State, 59 S.W.3d 177, 179

(Tex. Crim. App. 2001). By contrast, attorneys are given broad latitude to inquire into the jurors'
general philosophies, such as discovering factors that would be important to their deliberations

without inquiring as to how those factors would influence their decisions. Davis, 349 S.W.3d at 519.

               We conclude that the complained-of questions were not improper commitment

questions. The State's questions were not binary "yes" or "no" questions, but rather provided the

jurors a range of options from which they could choose. See id. The questions also did not seek

assurances from the jurors or bind them to a position on any issue and instead merely inquired into

their general philosophies on the issue of punishment. See id. at 518-19 (not error to ask jurors to

identify theories of punishment from a list of theories or to discuss factors the jurors considered

important to punishment) (citing Vrba v. State, 151 S.W.3d 676, 679 (Tex. App.—Waco 2004, pet.

ref d)). Because the State's questions were not improper, defense counsel was not deficient in

failing to object to them.


        B.      Defense counsel was not deficient in failing to object to the State's remarks
                regarding parole law in closing argument

                Campbell next complains that defense counsel was ineffective in failing to object to

remarks the prosecutor made in closing argument regarding parole-eligibility laws. Campbell claims

that the remarks constituted an improper application of parole law to him by leading the jurors to

believe that he would not serve the full term of the sentenced assessed. The record does not support

that contention.


                As a general rule, prosecutors are permitted to quote, paraphrase, or explain the law

contained in the court's charge unless the prosecutor's statements are inaccurate or contrary to the

charge. See Whiting v. State, 797 S.W.2d 45,48 (Tex. Crim. App. 1990). The charge in the present
case instructed the jury regarding applicable parole-eligibility law generally and that the jury could

not consider how parole law would be applied to Campbell. See Tex. Code Crim. Proc. art. 37.07

§ 4. In his closing argument, the prosecutor explained parole-eligibility law accordingly:


        You heard the parole [eligibility] law. And I can't tell you and I can't say what it's
        going to be for this particular defendant because that's left up to a whole bunch of
        other people really and his actions. ... A person that's sentenced to 20 years is
        eligible to get out at ten years of half that sentence. You can't apply that to him, but
        y'all can use that existence when determining a sentence - the existence of those
        parole eligibility laws.


That argument did not attempt to instruct the jury as to how parole law would apply to Campbell.

See id.; see also Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004) (holding that it is not

improper for the prosecutor to ask the jury to take the existence of parole law into account when

assessing punishment). Because the prosecutor's argument was not improper, defense counsel was

not deficient in not objecting to it.


        C.      Defense counsel was not deficient in failing to obtain an expert to test
                Campbell's blood sample

                At the punishment hearing, it was undisputed that Campbell's blood-alcohol content

was .132 at the time ofthe offense, well over the legal limit of .08. In support ofgreater punishment,

the State introduced evidence that Campbell had also smoked marijuana on the day of the offense.

Campbell now complains that defense counsel was deficient in failing to obtain an expert to test

Campbell's blood sample taken at the time of the offense for the presence of marijuana. He argues

that the test result, if negative, would have refuted that particular piece of aggravating evidence

introduced by the State.
              When assessing the reasonableness of counsel's investigation, the reviewing court

must consider whether the evidence known to counsel would lead a reasonable attorney to

investigate further. Ex parte Martinez, 195 S.W.3d 713, 721 (Tex. Crim. App. 2006). A silent

record that provides no explanation for counsel's actions generally will not overcome the strong

presumption of reasonable assistance, particularly when an alleged error is an error of omission

rather than commission. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Defense

counsel is not required to investigate every conceivable line of mitigating evidence no matter how

unlikely the effort would be to assist the defendant at punishment.            Freeman v. State,

167 S.W.3d 114, 117 (Tex. App.—Waco 2005, no pet.) (citing Wiggins v. Smith, 539 U.S. 510,

512(2003)).

               The record in this case provides no explanation for counsel's failure to obtain an

expert to test Campbell's blood sample. We conclude that Campbell has failed to overcome the

strong presumption of reasonable assistance because the record demonstrates that a decision not to

seek testing could have been reasonable under the circumstances. See Thompson, 9 S.W.3d at 814.

Specifically, the record contains substantial evidence showing that the result would have been

unfavorable to Campbell: it was undisputed that Campbell had smoked marijuana a few days before

the offense; that his glass marijuana pipe was found unbroken outside his vehicle immediately after

the offense; and that he had been previously placed on probation for marijuana possession, which

was later revoked for marijuana possession. Campbell also testified that he was an "advocate" of

marijuana and continued to smoke it after the offense. By contrast, Campbell points to nothing in
the record that would have supported a reasonable belief that testing would have yielded

mitigating evidence.1

               In light of the information available to defense counsel, we find that he could have

reasonably concluded that any such testing would not have assisted Campbell at punishment. See

Ex parte Martinez, 195 S.W.3d at 721; Freeman, 167 S.W.3d at 117. Accordingly, we cannot

conclude that counsel's alleged failure was so egregious that no effective attorney would have

engaged in it. See Nava, 415 S.W.3d at 308.

               Campbell has failed to rebut the presumption that defense counsel's performance was

not deficient. See Mata, 226 S.W.3d at 431. Because he has failed to satisfy the first Strickland

prong, we overrule his sole issue.


                                        CONCLUSION


               We affirm the judgment of conviction.




       1 Although Campbell testified at trial that he had not smoked marijuana the day of the
offense, nothing in the record shows that defense counsel was aware ofCampbell's denial before that
time. Further, even had counsel been aware of Campbell's denial at a time in which testing could
have been performed, counsel could have reasonably concluded that testing would not have yielded
favorable results under the circumstances.

                                                 7
                                          Cindy Olson Bourland, Justice

Before Justices Puryear, Goodwin, and Bourland

Affirmed


Filed: November 18, 2016

Do Not Publish
                                                                         eOSOEK- T T iei.         <3
fi....#f-.ii#ff/#rl/«f.«il»"'-"'!«ff»|-f'ff*ffr',:»i«ir#,M"«"",-'fl*'l
                                                                                            \r^ \~^9~?

                                                           1,^ *ju'-w*


      U3 A 3 d Od v s n
