                                                                                       ACCEPTED
                                                                                   06-14-00220-CR
                                                                        SIXTH COURT OF APPEALS
                                                                              TEXARKANA, TEXAS
                                                                              9/18/2015 3:34:37 PM
                                                                                  DEBBIE AUTREY
                                                                                            CLERK


             IN THE COURT OF APPEALS FOR THE
          SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                               FILED IN
                                                        6th COURT OF APPEALS
SHAHID KARRIEM ANSARI III,      §                         TEXARKANA, TEXAS
   APPELLANT                    §                       9/21/2015 8:33:00 AM
                                §                           DEBBIE AUTREY
                                                                Clerk
    v.                          §             Nos. 06-14-00220-CR
                                §
                                §
THE STATE OF TEXAS,             §
   APPELLEE                     §




                         STATE'S BRIEF



              FROM THE 354nr JUDICIAL DISTRICT COURT
                      HUNT COUNTY, TEXAS

                 TRIAL CAUSE NUMBER 27,739
     THE HONORABLE RICHARD A. BEACOM, JR., JUDGE PRESIDING



                                    NOBLE DAN WALKER, JR.
                                    District Attorney
                                    Hunt County, Texas

                                    KELI M. AIKEN
                                    First Assistant District Attorney
                                    P. 0. Box441
                                    4th Floor Hunt County Courthouse
                                    Greenville, TX 7 5403
                                    kaiken@huntcounty.net
ORAL ARGUMENT IS NOT                (903) 408-4180
REQUESTED                           FAX (903) 408-4296
                                    State Bar No. 24043442
                                            TABLE OF CONTENTS


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

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

Issues Presented .................................................................................................... 5-10

   1. Appellant's trial counsel provided effective assistance by presenting the best
      trial strategy he could when his client chose to plead true to the elements of the
      offense and throw himself on the mercy of the comi ................................. 5-10

Prayer ........................................................................................................................ 11

Certificate of Service ................................................................................................ 12

Ce1iificate of Compliance with Rule 9 .4 .................................................................. 12
                               INDEX OF AUTHORITIES
CASES:

Blott v. State, 588 S.W.2d 588 (Tex. Crim. App. 1979) ........................................... 6

Eddie v. State, 605 S.W.2d 924 (Tex. Crim. App. 1980) ....................................... 6

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) ................................... 5

Johnson v. State, 959 S.W.2d 230 (Tex.App.-Dallas 1997) ................................ 6

Kimmelan v. Morrison, 477 U.S. 365, 91 L.Ed. 305 (1986) .................................. 6

Strickland v. Washington, 466 U.S. 668, 80 L.Ed. 674 (1984) .............................. 5-6

Moore v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ........................................ 6-7

Toupal v. State, 926 S.W.2d 606 (Tex. App.-Texarkana 1996)) ......................... 6
                 IN THE COURT OF APPEALS FOR THE
              SIXTH DISTRICT OF TEXAS AT TEXARKANA

SHAHID KARRIEM ANSARI III,              §
     APPELLANT                          §
                                        §
      v.                                §             NOS.   06-14-00220-CR
                                        §
                                        §
THE STATE OF TEXAS,                     §
     APPELLEE                           §




                                STATE'S BRIEF




TO THE HONORABLE COURT OF APPEALS:

      NOW COMES the State of Texas, Appellee, in this appeal from Cause No.
27,739 in the 354th Judicial District Court in and for Hunt County, Texas,
Honorable Richard A. Beacom, Jr., Presiding, now before the Sixth District Comi
of Appeals, and respectfully submits this its brief to the Court in suppmi of the
judgment of sentence in the comi below.
             STATE'S RESPONSE TO POINTS OF ERROR ONE

             Appellant's trial counsel provided effective assistance
             by presenting the best trial strategy he could when his
             client chose to plead true to the elements of the offense
             and throw himself on the mercy of the court.

                             Argument and Authorities

      In order to prevail on a claim that counsel was ineffective, appellant must

prove that: (1) his counsel's representation was deficient; and (2) the deficient

performance was so serious that it prejudiced his defense. That is, appellant must

prove by a preponderance of the evidence that counsel's representation fell below

the standard of prevailing professional nonns and there is a reasonable probability

that, but for counsel's deficiency, the result of the trial would have been different.

See Stricklandv. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).

      The review of counsel's representation is highly deferential, and the Comi

should indulge a strong presumption that counsel's conduct falls within a wide

range of reasonable representation. Strickland, 466 U.S. at 689. The burden is on

the appellant to overcome that presumption by identifying the acts or omissions of

counsel that are alleged to have constituted the ineffective assistance and to

affirmatively prove that they fall below the professional norm or reasonableness.

Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Additionally,

appellant must prove that counsel's en-ors, judged by the totality of the
representation, denied him a fair trial. Merely showing that they had some

conceivable effect on the proceedings is inadequate to prevail on a claim of

ineffective assistance of counsel. Strickland, 466 U.S. at 693.

       In evaluating the first prong of the Strickland inquiry, appellant must rebut

the presumption that counsel's representation was competent by proving that the

challenged assistance was not sound trial strategy. Kimm,elan v. Morrison, 4 77

U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed. 305 (1986) (citing Strickland, 466 U.S. at

688-689); Johnson v. State, 959 S.W.2d 230, 236-237 (Tex.App.-Dallas 1997).

The comi must not second-guess through hindsight the strategy of counsel at trial;

nor should the fact that another attorney might have pursued a different course of

action support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592

(Tex. Crim. App. 1979). The fact that another attorney, including appellant's

counsel on appeal, might have pursued a different course of action does not

indicate that the trial att0111ey was ineffective. Id.

      Fmihermore, when an Appellant pleads guilty (or true), trial counsel does

not have to perform the same level of independent investigation he would in a

contested proceeding. Toupal v. State, 926 S.W.2d 606, 608 (Tex. App.-

Texarkana 1996); Eddie v. State, 100 S.W.3d 437, 442 (Tex. App.-Texarkana

2002). The State only has to prove one of the allegations in the motion for the trial

comi to revoke (or adjudicate) probation. Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. 1980).

      A. Appellant chose to plead true to the allegations that the State
         could prove.

      This was not Appellant's first motion to adjudicate so Appellant knew what to

expect at the hearing. A year before Appellant faced a motion to adjudicate.

RRl 7/pp.1-39. During that hearing the State offered proof that Appellant: 1) made

only $65.00 in payments while on probation; 2) had only completed 44 hours of

community service; 3) failed to complete the anger management class; 4) did not

complete the psychological evaluation; 5) failed to appear at a violation review and

6) was an-ested for family violence assault. RR19/p.18, lines 10-21. At the prior

MTA Appellant presented no witnesses. RRl 78/pp.1-39. Appellant did testify at

the end of the prior hearing when the comi asked him questions. RRl 7/pp.36-37.

At the end of Appellant's first MTA, Appellant was allowed to remain on probation

with amended terms including: an extension of the length of probation, a 90 day

sanction and work release. RRl 7/pp.38-39; RR19/p.9, lines 9-16 and pp.11-12.

      Appellant made the decision to plead true as part of his overall trial strategy of

admitting to everything but asking the trial court to give him another chance at

probation. Appellant had the opportunity to have his MTA set off so the State

could order certified copies of the two judgments for the offenses in paragraphs 1

and 2 or pled true and have a hearing the following week. RR18/p.5, lines 7-19.

Trial counsel spoke with Appellant and then came back onto the record with
Appellant establishing his intent to plead true to both paragraphs alleging the new

offenses. RR18/pp.5-6. Once Appellant pled true, the trial comi asked ifhe

wanted to proceed with the final hearing that day or next week. RRl 8/p.6, lines

19-20. Appellant did enter pleas of not true to paragraphs 3-5 and true to the

allegations in paragraph 6 and the trial comi set the final hearing for a week away

after consulting to make sure the date worked with trial counsel's schedule.

RR18/p.7, lines 2-20. The trial comi found that paragraphs 1, 2 and 6 were true

and proceeded to a sentencing hearing. RR19/pp.6-7.


     B. Trial counsel's strategy was to have Appellant testify and ask
        for mercy as when Appellant testified at the prior adjudication
        hearing the trial court allowed him to remain on probation with
        a jail sanction.

     The evidence presented at sentencing reflected the initial allegations in the

MTA as well as Appellant's perfonnance on probation. At the final MTA hearing,

the State abandoned paragraphs 3,4, and 5. RR19/pp.5-6. Probation Officer

Cindy Ware explained how Appellant accomplished very little while on probation.

RR19/pp.7-10. Appellant perfonned only 3 community service hours in the last

year. RR19/p.7, lines 16-22. Appellant made one payment of $30.00 since

December 2013. RR19/pp.7-8. Appellant last repmied to probation in December

of 2013 and has not repmied since. RR19/p.8, lines 2-9. At the final hearing

Officer Ware also testified that she reviewed a final judgment showing
Appellant's conviction for the offense of possession of marijuana alleged in

paragraph 2. RRl 9/p.10, lines 8-20.

     Appellant even admitted to the offenses alleged in paragraphs 1 and 2 again

in his testimony at punislunent. RR19/pp.11-12. Appellant received probation for

the new offenses alleged in paragraphs 1 and 2. RRl 9/p.10, lines 8-20. Appellant

also admitted he never took the anger management class listed in paragraph 6.

RR/19/p.12, lines 12-17. Appellant did claim he performed additional hours of

community service for the City of Commerce on probation and that he told his

probation officer when he reported about the additional hours. RRl 9/pp.12-13.

     Appellant asked the trial court to give him another chance and reinstate

Appellant on probation. RRl 9/p.14, lines 3-6. Appellant admitted he was on his

second motion to adjudicate and had not perfonned well on probation but felt that

now he was able to make it work and wanted another chance. RRl 4-15. He

explained he was a young man with four small children under the age of 3 and that

he had a place to live here in Greenville if allowed to remain on probation.

RR19/pp.14-15. Appellant admitted he was not perfonning community service

because he knew there was a wan-ant out for his arrest. RR19/p.17, lines 9-15.

Trial counsel argued to the comi asking for leniency and to give Appellant another

chance at probation so he could take care of his children. RR19/p.18, lines 2-8.

     Appellant's trial counsel provided effective assistance of counsel; therefore,
Appellant's point of eITor should be denied and his conviction and sentence

affirmed.
        CONCLUSION AND PRAYER FOR RELIEF

The State prays that the Court will affirm Appellant's sentence.


                                       Respectfully submitted,


                                      NOBLE DAN WALKER, JR.
                                      District Attorney
                                      Hunt County, Texas


                                         Isl Keli M. Aiken
                                      KELI M. AIKEN
                                      Assistant District Attorney
                                      P. 0. Box 441
                                      4th Floor, Hunt County Comihouse
                                      Greenville, TX 7 5403
                                      kaiken@huntcounty.net
                                      State Bar No. 240434482
                                      (903) 408-4180
                                      FAX (903) 408-4296
CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

      In accordance with Texas Rules of Appellate Procedure 9 .4 ( e) and (i), the
undersigned attorney or record certifies that Appellants Brief contains 14-point
typeface of the body of the brief and contains 1,896 words and was prepared on
Microsoft Word 2013.



                                                /sf Keli M. Aiken
                                             KELI M. AIKEN
                                             First Assistant District Att01ney
                                             P. 0. Box 441
                                             4th Floor Hunt County Comihouse
                                             Greenville, TX 75403
                                             (903) 408-4180
                                             FAX (903) 408-4296
                                             State Bar No. 24043442


                          CERTIFICATE OF SERVICE


      A true copy of the State's brief has been placed in Jason Duffs box in the

Hunt County District Clerk's Office and emailed to him, today September 18,

2015, pursuant to local rules.



                                               Isl Keli M. Aiken
                                             KELI M. AIKEN
                                             First Assistant District Att01ney
