                                                                                                              PD-0392-15
                                     PD-0392&0393-15                                     COURT OF CRIMINAL APPEALS
                                                                                                         AUSTIN, TEXAS
                                                                                       Transmitted 4/22/2015 10:55:21 AM
                                                                                          Accepted 4/23/2015 9:38:59 AM
                                                                                                          ABEL ACOSTA
                                     MICHEAL B. MURRAY                                                            CLERK
                                            DISTRICT ATTORNEY
                                      35TH JUDICIAL DISTRICT OF TEXAS
                                            BROWN AND MILLS COUNTIES

                                                                                        CHRIS BROWN
200 S. BROADWAY, COURTHOUSE                                                  FIRST ASSISTANT DISTRICT ATTORNEY
   BROWNWOOD, TEXAS 76801
(325) 646-0444 FAX: (325) 643-4053                                                      ELISHA BIRD
                                                                                ASSISTANT DISTRICT ATTORNEY

                                                                                     J. CHRISTINA NELSON
                                                                                ASSISTANT DISTRICT ATTORNEY




               April 23, 2015

                                                     April 22, 2015

        The Court of Criminal Appeals
        Supreme Court Building
        201 West 14th Street, Room 106
        Austin, Texas 78701

        Re:      Breanna Spencer, PD 0392-15 & PD 0393-15, 11-13-00007-CR & 11-13-00008-CR

        To the Honorable Court of Criminal Appeals:

                The State has received Breanna Spencer’s Petition for Discretionary Review. In lieu of
        filing a formal response to the Petition for Discretionary Review, the State would simply ask this
        Court to refuse to review this case for the following reasons.
                First, Petitioner has not alleged a reason for review that appropriately represents the
        decision by the Eleventh Court of Appeals. Petitioner’s question presented for review claims
        that there was no strategic motivation for trial counsel’s failure to object to the State’s closing
        argument. See Applicant’s Petition for Discretionary Review, p. 3. However, the Eleventh
        Court of Appeals held that the State’s closing argument was proper and therefore failure to
        object cannot constitute deficient performance by Applicant’s trial counsel. Spencer v. State,
        Nos. 11-13-00007-CR and 11-13-00008-CR, 2015 WL 1089813, at *7 (Tex. App.—Eastland
        Mar. 5, 2015, pet. filed).
                Petitioner has not alleged any ground for reviewing the Eleventh Court of Appeals’
        decision that the State’s closing argument was proper. Absent a decision to reverse the court of
        appeals ruling on the appropriateness of the State’s closing argument, there is no issue of
        ineffective assistance available for Petitioner to have reviewed. Counsel cannot be held
        ineffective for failing to object to proper closing argument.
                 Additionally, Petitioner has failed to provide an appropriate reason for review under
        Rule 66.3 of the Texas Rules of Appellate Procedure. The court of appeals did not decide an
        important question of state or federal law in a manner that would conflict with applicable
        decisions of this Court.
                As this Court is aware, refusal of a petition for discretionary review does not constitute
endorsement or adoption of the reasoning employed by the court of appeals. Aguilar v. State,
830 S.W.2d 612, 613 (Tex. Crim. App. 1992) (en banc).
       Should this Court choose to grant review, the State requests notice and time to respond to
the merits of the claims presented by Petitioner.


                                            Sincerely yours,




                                            /s/
                                            Elisha Bird
                                            Assistant District Attorney

cc:    Stan Brown, attorney for Petitioner, mstrb@aol.com
