                                                                                 ACCEPTED
                                                                             03-15-00241-CR
                                                                                     8205644
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                       12/11/2015 3:32:40 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK


                      No. 03-15-00241-CR
                                                            FILED IN
                                                     3rd COURT OF APPEALS
                   In the Texas Court of Appeals          AUSTIN, TEXAS
                      Third District, at Austin      12/11/2015 3:32:40 PM
                                                         JEFFREY D. KYLE
                     Michael John James,                      Clerk

                          Appellant

                                  v.

                      The State of Texas,
                           Appellee

       Appeal from the 427th District Court of Travis County
                Cause Number D-1-DC-13-907320

                        STATE’S BRIEF


                                 Rosemary Lehmberg
                                 District Attorney
                                 Travis County

                                 Angie Creasy
                                 Assistant District Attorney
                                 State Bar No. 24043613
                                 P.O. Box 1748
                                 Austin, Texas 78767
                                 (512) 854-9400
                                 Fax (512) 854-4810
                                 Angie.Creasy@traviscountytx.gov
                                 AppellateTCDA@traviscountytx.gov

Oral argument is not requested
                                     Table of Contents

Index of Authorities............................................................................. ii
Summary of the State’s Argument........................................................1
Standard of Review.............................................................................. 2
Argument ............................................................................................. 3
 Reply Point: Appellant has not shown ineffective assistance of
 counsel. ............................................................................................. 3
Prayer .................................................................................................. 5
Certificate of Compliance and Service ................................................. 6




                                                       i
                                   Index of Authorities

     Cases
Ochoa v. State, 119 S.W.3d 825 (Tex. App.—San Antonio 2003, no
  pet.)................................................................................................... 5
Strickland v. Washington, 466 U.S. 668 (1984) ................................. 2
Woodall v. State, No. 03-05-00850-CR, 2008 Tex. App. LEXIS 6249
  (Tex. App.—Austin 2008, pet. ref’d) ................................................ 5




                                                       ii
                        No. 03-15-00241-CR

                     In the Texas Court of Appeals
                        Third District, at Austin

                       Michael John James,
                            Appellant

                                   v.

                         The State of Texas,
                              Appellee

        Appeal from the 427th District Court of Travis County
                 Cause Number D-1-DC-13-907320

                           STATE’S BRIEF


To the Honorable Third Court of Appeals:

   Now comes the State of Texas and files this brief in response to

Appellant’s brief.


                Summary of the State’s Argument

   Appellant claims that he received ineffective assistance of counsel

because his attorney did not object to a police officer’s testimony that

he thought Appellant’s vehicle was a deadly weapon. He argues that

the officer was not qualified as an expert to give this opinion.




                                        1
   First, Appellant has not shown that trial counsel was deficient

because he has not given counsel an opportunity to defend himself

and he has not shown that the witness was not qualified to give this

opinion.

   Additionally, Appellant has not shown that the officer’s opinion

harmed him because the record is replete with evidence that

Appellant used his motor vehicle as a deadly weapon, and the trial

court focused on this evidence, not the officer’s opinion, in coming to

a verdict.

   For these reasons, Appellant has not met his burden on his

ineffective assistance of counsel claim, and the court’s judgment

should be affirmed.


                        Standard of Review

   In an ineffective assistance claim, the burden is on the appellant

to show by a preponderance of the evidence that (1) counsel's

performance was deficient, and (2) there is a reasonable probability

that, but for counsel’s errors, the result of the proceeding would have

been different. Strickland v. Washington, 466 U.S. 668 (1984).




                                     2
                               Argument

Reply Point: Appellant has not shown ineffective assistance
of counsel.

   At trial, the prosecutor asked the police officer, “Based on the

story that you received from [the victim], was the car a deadly

weapon?” The officer responded, “Yes.” 4RR 48.

   Appellant argues that his trial counsel should have objected

because the officer was not qualified as an expert to give this opinion.


   1) Appellant has not shown that counsel’s performance
      was deficient.

   First, Appellant has not shown that counsel was deficient because

he has not given counsel an opportunity to defend himself.

   Second, Appellant has not shown that the police officer was not

qualified to give this opinion. The officer had 10 years’ experience as a

patrol officer, which surely qualified him to give an opinion that the

vehicle was a deadly weapon in this case. 4RR 45-46. And if not,

Appellant has not shown that the State could not have qualified the

officer as an expert, if trial counsel had objected.




                                      3
   2) Appellant has not shown that the result of the
      proceeding would have been different.

   The record is replete with evidence that Appellant used his vehicle

as a deadly weapon. Specifically, the evidence shows that:

    Appellant was driving a full-size Dodge 1500 pickup;
    the victim was driving a little BMW;
    Appellant tailgated the victim, driving within a foot of her
     bumper;
    she sped up;
    he tried to hit her bumper;
    he tried to run her off the road;
    he tried to hit her car multiple times;
    she had to swerve to avoid him;
    she drove up on the curb to avoid being hit, causing
     damage to her car;
    she was afraid that he was going to kill her or that she
     was going to hurt somebody while trying to avoid him;
    he drove over a concrete median in an attempt to make a
     U-turn to get back to her;
    and all this happened on Braker Lane near MoPac,
     during lunch time, in heavy traffic.

4RR 28-40, 68-69, 80; and SX 1 (the 911 call).

   In light of all of this evidence, the officer’s opinion was pretty

inconsequential. In fact, the record reflects that the trial court focused

on the testimony about Appellant’s driving, not the officer’s opinion,

in deciding whether the vehicle was a deadly weapon. 4RR 98-102.




                                      4
    Appellant argues that he was harmed because, without the

officer’s opinion, the evidence would be legally insufficient to prove

that the vehicle was a deadly weapon. That is not the case. The

evidence listed above is clearly sufficient to show that Appellant used

his truck as a deadly weapon. See Ochoa v. State, 119 S.W.3d 825,

828 (Tex. App.—San Antonio 2003, no pet.) (finding evidence legally

sufficient when defendant almost hit another vehicle); Woodall v.

State, No. 03-05-00850-CR, 2008 Tex. App. LEXIS 6249, *9-10 (Tex.

App.—Austin 2008, pet. ref’d) (mem. op., not designated for

publication) (same).

    In sum, Appellant has not shown that counsel was deficient or

that he was harmed, so he has not met either prong of the Strickland

test.


                                Prayer

    The State asks this Court to overrule Appellant’s point of error and

affirm the trial court’s judgment.

                              Respectfully submitted,

                              Rosemary Lehmberg
                              District Attorney
                              Travis County


                                     5
                              Angie Creasy
                              Assistant District Attorney
                              State Bar No. 24043613
                              P.O. Box 1748
                              Austin, Texas 78767
                              (512) 854-9400
                              Fax (512) 854-4810
                              Angie.Creasy@traviscountytx.gov
                              AppellateTCDA@traviscountytx.gov


             Certificate of Compliance and Service
   I certify that this brief contains 581 words. I further certify that,

on the 11th day of December, 2015, a true and correct copy of this brief

was served, by U.S. mail, electronic mail, facsimile, or electronically

through the electronic filing manager, to the defendant’s attorney,

Leonard Martinez, 812 San Antonio, Suite 104, Austin, Texas 78701.




                              Angie Creasy




                                      6
