Affirmed in Part, Reversed and Remanded in Part, and Majority and Dissenting
Opinions filed August 4, 2016.




                                           In The

                        Fourteenth Court of Appeals

                                  NO. 14-15-00313-CR

                      ALVIN WESLEY PRINE, JR., Appellant
                                             V.

                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 75th District Court
                               Liberty County, Texas
                          Trial Court Cause No. CR30786


                       DISSENTING OPINION

       We must deny relief on an ineffective-assistance claim on direct appeal if the
record does not provide trial counsel’s explanations for his conduct, unless there is no
possible legitimate trial strategy.1 This appeal is not one of the rare cases in which


       1
        See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State,
9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
the issue can be decided on direct appeal in the face of a silent record. 2 The court
should not conclude trial counsel lacked any strategic reasoning for the decisions
without first hearing trial counsel’s explanations. Because the court decides these
very serious allegations, finding trial counsel ineffective, without the benefit of
counsel’s explanations for his actions, I respectfully dissent.

                            This Court’s Opinion in DeLeon v. State

       Counsel’s reasons for his actions do not appear in the record. The majority
holds that under this court’s precedent in DeLeon v. State, 322 S.W.3d 375 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d), we must hold counsel’s conduct
ineffective without affording counsel the opportunity to explain counsel’s strategy
because the conduct was ineffective as a matter of law.

       In DeLeon, a divided panel of this court held that a defense attorney provided
ineffective assistance by (1) calling to the witness stand a probation officer who
testified that the counseling and treatment sex-offenders received during probation
could never erase the risk the sex-offender poses to the community, and (2) failing to
object to the probation officer’s testimony, which included accounts about other
probationers who relapsed and detailed various techniques these relapsed offenders
had used to lure children.3 The DeLeon court concluded the probation officer’s cross-
examination testimony was inadmissible because it was highly inflammatory and
arguably outside the probation officers’ realm of expertise.4            Notably, the holding
was based on both mistakes, and the finding that there was no reasonable trial
strategy that supported counsel’s conduct was based on the defense attorney’s dual

       2
         See Thompson, 9 S.W.3d at 813 (noting that a reviewing court rarely will be provided the
opportunity to make a determination that counsel was ineffective on direct appeal because the
record on direct appeal is undeveloped).
       3
           DeLeon, 322 S.W.3d at 384–85.
       4
           Id. at 385–86.

                                               2
decision to (1) call a damaging witness to the stand and (2) then fail to object to the
witness’s impermissible testimony.5        Today’s case differs from DeLeon in key
respects.

                                 Distinguishing DeLeon

      The majority asserts that trial counsel’s conduct is “more egregious” than that
of the defense attorney in DeLeon because trial counsel (1) called to the stand
witnesses who allegedly provided appellant no real benefit, knowing that they would
be impeached on cross-examination, (2) allegedly failed to investigate the probation
officer’s testimony, and (3) failed to object to the probation officer’s testimony that
the probation officer did not believe appellant deserved probation.6

      Trial Counsel’s Decisions to Call Witnesses

      The decision to call a witness to testify is fraught with risks. Some witnesses
do not perform on the stand the way they did in preparation. Sometimes witnesses
falter under cross-examination. Sometimes a witness’s testimony is something of a
mixed bag but key parts are necessary to achieve a particular goal, even though the
witness also might give damaging testimony. Often, the decision to call a particular
witness must be made quickly, based on imperfect or incomplete information.
Weighing the risks and benefits of presenting a particular witness is exactly the type
of strategic decision that ordinarily requires courts to evaluate an attorney’s
explanations before concluding counsel was ineffective.7




      5
          Id. at 386–87.
      6
          See ante at p. 29.
      7
          See Joseph v. State, 367 S.W.3d 741, 744 (Tex. App.—Houston [14th Dist.] 2012, pet.
ref’d) (noting that the decision to call witnesses is generally a matter of trial strategy).

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            1. Probation Officer

      In DeLeon, the defense attorney called to the stand a probation officer who
discussed the different aspects of probation, including that the sex-offender would
receive counseling.8         When the prosecutor asked the probation officer about
counseling, the probation officer explained that counseling could not eliminate the
risk of a particular offender re-offending.9 The DeLeon court apparently concluded
from the probation officer’s testimony that the defense attorney had not fully
investigated the probation officer’s opinion about probation and did not understand
the probation officer’s views.10

      Unlike in DeLeon, the probation officer in today’s case did provide appellant
some benefit. The probation officer testified regarding the eligibility for probation
and also testified that, based on his conversation with appellant, appellant met the
requirements for probation. The probation officer testified, however, that he had not
conducted any independent research into appellant’s background and simply took
appellant’s word regarding appellant’s criminal history. Though the probation officer
did not have personal knowledge that appellant met the eligibility requirements for
probation, the probation officer did provide testimony outlining the requirements.
That testimony laid the groundwork for appellant to put on other evidence showing
he met the requirements for probation.

      On cross-examination, the prosecutor attempted to question the probation
officer about appellant impregnating a fifteen-year-old, but the trial court did not
allow testimony on that matter. The probation officer did testify, after hearing the
details of the offense for which appellant had been convicted, that he did not think

      8
          See DeLeon, 322 S.W.3d at 384–85.
      9
          See id. at 385.
      10
           See id. at 386.

                                              4
appellant deserved probation. But, unlike the probation officer in DeLeon, whose
views of the efficacy of probation were rooted in the probation officer’s experience,
the probation officer’s opinion regarding appellant’s worthiness for probation appears
to have changed based on the prosecutor’s cross-examination. Trial counsel sought
probation for his client.          The record does not reveal whether counsel had an
opportunity to discuss with appellant the potential risks of proving appellant’s
entitlement to probation, nor does the record reveal whether appellant participated in
the decision to establish his eligibility for probation despite potential risks.      In
DeLeon, the court found no possible strategic reason for calling the probation officer;
but, in today’s case, trial counsel was faced with a strategic choice about whether the
benefits of calling the probation officer outweighed the potential risks.11

            2. Appellant’s Aunt

      Appellant argues that trial counsel called appellant’s sister and aunt to the
witness stand knowing that the State likely would elicit testimony from these
witnesses that appellant impregnated a fifteen-year-old nearly three decades before,
conduct that amounted to statutory rape.12 The majority concludes that calling these
witnesses was ineffective assistance as a matter of law because trial counsel should
have anticipated that the witnesses would give this testimony on cross-examination.13
But, calling the witness might have been part of a reasonable trial strategy.14

      Though appellant’s aunt acknowledged that appellant had impregnated a
fifteen-year-old, the aunt gave favorable testimony as well.          She testified that
appellant was very helpful to his family, that he worked all of his life, and took care

      11
           See id.
      12
           See ante at p. 29.
      13
           See ante at pp.28–29.
      14
           See Joseph, 367 S.W.3d at 744.

                                              5
of his family until he had a stroke. Appellant’s aunt testified that in addition to
suffering multiple strokes, appellant had suffered two heart attacks. The aunt pointed
out that the daughter appellant produced with the fifteen-year old is now twenty-
seven-years old and appellant continues to support the daughter financially.
Appellant’s aunt testified that she had personal knowledge that appellant had not been
convicted of any crimes and therefore was eligible for probation.

         3. Appellant’s Sister

      Appellant’s sister also acknowledged appellant impregnated the fifteen-year
old. And, like the aunt, the sister provided favorable testimony explaining how
appellant had been a personal source of support for her during difficult times. The
sister testified that she had been raped and impregnated by her father, she had
attempted suicide, and would be dead without appellant’s help. Appellant’s sister
testified that the conviction for which the jury was assessing punishment was out of
character for appellant, particularly after he supported her through her difficult
experience. Appellant’s sister implied that intoxication was a factor in appellant’s
actions in the offense for which he was convicted. The sister testified that appellant
did not drink again after that night, noting that appellant suffered a stroke shortly
thereafter. Appellant’s sister also explained that appellant’s health was poor. She
relayed that as a result of appellant’s heart attacks and strokes, appellant no longer
has the use of his hands, that appellant experiences problems with his hip, and that
appellant also struggles with memory and speech.         When the prosecutor cross-
examined appellant’s sister about appellant impregnating the fifteen-year old,
appellant’s sister stated the sexual relationship was consensual even if it had been
illegal based on the age difference between appellant and the girl.

      The majority concedes that there may have been some strategic purpose in
calling appellant’s family members, but the majority concludes there could not be any

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reasonable trial strategy for calling appellant’s sister to testify.15       Although
appellant’s sister gave damaging testimony, on a silent record, this court does not and
cannot know the reason trial counsel decided to call the sister to the stand. Did trial
counsel weigh the damage of the statutory rape committed twenty-seven-years earlier
against the impact of the additional testimony the sister provided about appellant’s
limitations and his past support of family members? Did trial counsel think it was
important for the jury to understand the impact and extent of appellant’s health
problems? Did trial counsel think the sister’s opinion that appellant’s actions were
heavily influenced by his intoxication might sway the jury based on the fact that the
sister testified appellant no longer consumes alcohol?       Did appellant insist on
presenting both character witnesses to the jury? Did trial counsel think the sister
would provide a more sympathetic or compelling explanation of appellant’s actions?
Did counsel make a calculated decision to risk additional testimony about the fifteen-
year-old for the chance to present favorable testimony that might not have been
available from other sources?

      Unlike in DeLeon where the court held there was no possible strategic reason
for calling the probation officer to the stand,16 trial counsel faced a tactical choice
about whether to call appellant’s aunt and sister to testify. Without a record, this
court does not know why trial counsel called appellant’s sister to the witness stand.
We should not denounce counsel as ineffective without giving counsel an opportunity
to explain his actions.




      15
           See ante at pp. 28-30.
      16
           See DeLeon, 322 S.W.3d at 386.

                                            7
      Alleged Failure to Investigate

      In DeLeon this court concluded that trial counsel did not properly investigate
the likely substance of the probation officer’s opinion.17 The majority asserts that
appellant’s trial counsel likewise did not investigate the probation officer’s testimony
in today’s case.18 The record reveals that the probation officer met with appellant
only briefly, but the record does not reveal what steps, if any, trial counsel took to
investigate what the probation officer’s testimony would be or what knowledge trial
counsel may have had based on research or prior dealings with the probation officer.
On this record, we do not know whether the probation officer stated he intended to
testify in a particular way and changed his testimony at trial or whether trial counsel
did not perform a sufficient investigation.

      The record reveals that the probation officer did not know some specifics of the
particular offense for which appellant had been convicted, but trial counsel has not
had the opportunity to explain what he told the probation officer and what he
expected the probation officer might say. Did trial counsel think the probation
officer’s testimony was necessary, but determined that telling the probation officer
details such as the defendant’s denial of his guilt, would make it more difficult for
appellant to receive probation? Did trial counsel inform the probation officer of
those facts and the probation officer forgot?       Did trial counsel have reason to
believe, based on prior conversations with the probation officer, that those facts
would not impact the probation officer’s testimony?

      The record does not reveal what counsel thought or reasonably might have
believed, but the probation officer’s testimony did not conclusively establish that trial
counsel did not adequately investigate the probation officer’s testimony before trial.
      17
           See id.
      18
           See ante at p. 29.

                                              8
The majority might be correct that trial counsel did not investigate the substance of
the probation officer’s testimony, but, at this juncture, we simply do not know and
should not speculate in the face of a silent record.

      Failure to Object to Evidence

      To hold trial counsel was ineffective because counsel failed to object to
evidence, the court must conclude that the evidence was inadmissible.19 The majority
holds that trial counsel was ineffective in failing to object to the probation officer’s
testimony that, based on his limited interview of appellant, and the few facts of the
case given by the State, the probation officer did not think appellant deserved
probation.20 In DeLeon, the court concluded that the probation officer’s testimony
regarding tactics some sex-offenders used to lure children after they relapsed was
highly inflammatory and thus inadmissible.21 In today’s case, the majority does not
conclude the probation officer’s testimony would have been inadmissible.

      The probation officer’s statement is not inflammatory in the way the probation
officer’s testimony was in DeLeon. Though the majority states that trial counsel was
ineffective in failing to object to the probation officer’s testimony that appellant did
not deserve probation, unlike the court in DeLeon, the majority does not explain why
this evidence was inadmissible at trial.22




      19
           See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002).
      20
           See ante at p. 29.
      21
           See DeLeon, 322 S.W.3d at 385.
      22
           See id. at 385–86; see ante at pp. 29-30.

                                                   9
                                      CONCLUSION

      Today’s case differs from DeLeon. First, there are possible strategic reasons
for calling the witnesses trial counsel chose to call. Second, the record does not
reveal that trial counsel did not investigate the probation officer’s testimony. Finally,
trial counsel was not deficient in failing to object to the probation’s officer’s
testimony. Because the facts are distinguishable from the DeLeon facts, and because
there are potential explanations for trial counsel’s conduct, there is no reason to find
trial counsel ineffective as a matter of law without affording trial counsel an
opportunity to explain his actions.




                                       /s/        Kem Thompson Frost
                                                  Chief Justice


Panel consists of Chief Justice Frost and Justices Boyce and Wise (Boyce, J.,
majority).

Publish — Tex. R. App. P. 47.2(b).




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