      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00665-CR



                                      Laura Hall, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-07-900170, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                            MEMORANDUM OPINION


                In 2007, a jury convicted appellant Laura Hall of offenses that included tampering

with physical evidence—namely, mutilating the body of a homicide victim. See Tex. Penal Code

Ann. § 37.09 (West 2011). For the evidence-tampering offense, the jury imposed a five-year

sentence. Hall v. State, 283 S.W.3d 137, 142 (Tex. App.—Austin 2009, pet. ref’d). Hall appealed,

and this Court affirmed the judgments of conviction. See id. at 179. However, based on Brady

violations1 that we concluded had unconstitutionally impacted Hall’s punishment hearing, we

reversed and remanded for a new trial on punishment only. See id. On remand, a different jury,

hearing some evidence not presented during Hall’s first trial (including additional accounts of self-

incriminating and rather disturbing statements made by Hall regarding her offenses and the victim2),


       1
           See Brady v. Maryland, 373 U.S. 83 (1963).
       2
          See Hall v. State, 283 S.W.3d 137, 149-52 (Tex. App.—Austin 2009, pet. ref’d)
(recounting Hall’s purported statements to four different witnesses).
imposed a ten-year sentence, plus a fine of $10,000. Hall again appeals. In six issues, Hall asserts

that she was denied counsel during the 30-day period for filing a motion for new trial, that she was

denied the effective assistance of counsel during that same period, and that the district court abused

its discretion when it failed to grant Hall a new trial on the basis of alleged Brady violations. We

will affirm the judgment.


                                         BACKGROUND

                To address the issues Hall raises in her present appeal, we need not comprehensively

recount the macabre facts underlying her convictions, which we have explored at length in our

opinions addressing Hall’s first appeal and that of her cohort, Colton Pitonyak.3 Briefly, as all

concerned are well aware by now, Pitonyak was convicted of murdering Jennifer Cave4 while

Hall was convicted of the misdemeanor offense of hindering apprehension (aiding Pitonyak in

fleeing to Mexico following the murder) and the felony offense of evidence-tampering (mutilating

Cave’s body). Hall received five years’ imprisonment for the tampering offense and one year’s

imprisonment for the hindering offense. As noted above, this Court affirmed both convictions

but reversed and remanded for a new trial on punishment. See id. During the punishment trial on

remand, the jury considered voluminous testimony and numerous exhibits from twenty-six witnesses

for the State and four witnesses for Hall. A summary of the evidence pertinent to Hall’s current

appellate issues follows.




       3
           See Pitonyak v. State, 253 S.W.3d 834 (Tex. App.—Austin 2008, pet. ref’d).
       4
           Which this Court affirmed on appeal. See id.

                                                  2
               One of the State’s theories during trial was that on the night of the offense, Hall

had been in the condominium where Cave was murdered. To support this theory, the State offered

the testimony of Cassie Carradine, the DNA supervisor for the Austin Police Department’s DNA

laboratory. Carradine testified that although Hall could be excluded as a contributor of DNA that

was found on many of the items that had been recovered from the crime scene, including a hacksaw

that had been used to dismember Cave’s body, Hall could not be excluded as a contributor of DNA

that was found on other items, including a blue shop towel and one of the flip-flop shoes that had

been found near the bathroom where Cave’s body was discovered. Carradine also testified that Hall

could not be excluded as a contributor of DNA that had been found on pistol grips found in

Pitonyak’s vehicle and that DNA samples from red sweat pants and brown underwear found in

Pitonyak’s vehicle were consistent with Hall’s DNA profile.

               In her defense, Hall called her own DNA forensic expert, William Watson. Watson

testified that he had reviewed the State’s DNA tests and essentially agreed with the State’s findings

that Hall could not be excluded as a contributor of DNA that had been found on certain items.

Watson claimed, however, that although the DNA “could” belong to Hall, “there is insufficient

information here to definitively say one way or the other.” Watson also offered alternative

explanations for the presence of Hall’s DNA on the items other than her involvement in the crime.

               Following its deliberations, the jury returned a verdict of ten years’ imprisonment and

a fine of $10,000 for the tampering offense and one year’s imprisonment and a fine of $4,000 for the

misdemeanor hindering offense.5 The district court sentenced Hall in accordance with the jury’s


       5
          No notice of appeal for the hindering offense was filed, and the judgment of conviction for
that offense has not been included in the clerk’s record. However, the verdict of the jury was read
in open court and thus can be found in the reporter’s record.

                                                 3
verdict. On July 23, 2010, trial counsel timely filed a motion for new trial alleging, among other

things, that the State had withheld material evidence favorable to the accused relating to the State’s

DNA evidence. See Brady v. Maryland, 373 U.S. 83 (1963). On that same date, trial counsel filed

a motion to withdraw.6

                The motion for new trial was later overruled by operation of law. Subsequently, on

September 21, 2010, the district court signed an order permitting trial counsel’s withdrawal and a

separate order appointing appellate counsel. This appeal followed.


                                             ANALYSIS

Denial of counsel

                In her first and second issues, Hall asserts that she was denied counsel during the time

that she was required to present her motion for new trial and that this denial violated her right to

counsel under the federal and state constitutions and the Texas Fair Defense Act. See U.S. Const.

amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.051 (West Supp. 2010).7 In

response, the State argues that the record does not reflect that Hall was deprived of counsel during

the period at issue.




       6
          The basis for counsel’s request to withdraw is unclear from the record. In the prayer of
his motion for new trial, trial counsel asks that he be allowed to withdraw because “he has become
a fact witness” relating to matters alleged in the motion for new trial. However, in his motion to
withdraw, counsel simply states that he has “completed the trial to which he was appointed.”
       7
          Hall does not argue that either the Texas Constitution or the Texas Fair Defense Act
provides greater or different protection than the Sixth Amendment to the United States Constitution.
Accordingly, we address these claims together. See Muniz v. State, 851 S.W.2d 238, 251-52
(Tex. Crim. App. 1993).

                                                   4
                “[A]ppointment of counsel for an indigent is required at every stage of a criminal

proceeding where substantial rights of a criminal accused may be affected.” Mempa v. Rhay,

389 U.S. 128, 135 (1967); Cooks v. State, 240 S.W.3d 906, 910 (Tex. Crim. App. 2007). This

includes the first appeal as of right. See Douglas v. California, 372 U.S. 353, 357 (1963). To ensure

that a defendant’s appellate rights are protected, the thirty days after a defendant’s sentence has been

imposed and during which a motion for new trial can be filed is also considered a critical stage. See

Cooks, 240 S.W.3d at 911; see also Massingill v. State, 8 S.W.3d 733, 736-37 (Tex. App.—Austin

1999, pet. ref’d) (explaining that in order to obtain meaningful appeal, sometimes defendant must

prepare, file, present, and obtain hearing on motion for new trial and that it is unreasonable to require

him to do so without assistance of counsel).

                To prevail on a claim of deprivation of counsel during the time to prepare, file,

and present a motion for new trial, Hall must affirmatively prove that she was not represented

by counsel during this critical stage of the proceedings. Nguyen v. State, 222 S.W.3d 537, 540

(Tex. App.—Houston [14th Dist.] 2007, pet. ref’d); Garcia v. State, 97 S.W.3d 343, 347

(Tex. App.—Austin 2003, no pet.). In cases where a defendant is represented by counsel during

trial, a rebuttable presumption exists that trial counsel continued to adequately represent the

defendant during this critical stage. Cooks, 240 S.W.3d at 911 (citing Oldham v. State, 977 S.W.2d

354, 360-63 (Tex. Crim. App. 1998)). This presumption arises, in part, because appointed counsel

remains as the accused’s counsel for all purposes until expressly permitted to withdraw, even if the

original appointment was for trial only. Garcia, 97 S.W.3d at 347 (citing Ward v. State, 740 S.W.2d

794, 796 (Tex. Crim. App. 1987)). The presumption is not rebutted when there is nothing in the



                                                   5
record to suggest that appellant was not represented by counsel during the period in question. See

id. (citing Smith v. State, 17 S.W.3d 660, 662-63 (Tex. Crim. App. 2000)).

                The record in this case reflects that trial counsel was appointed on June 17, 2010.8

The order appointing counsel expressly states that counsel “is hereby appointed to represent the

defendant in this cause until the case is concluded, including appeals, if any, or until released by

order of the Court.” Although trial counsel moved to withdraw when he filed his motion for

new trial, there is no indication in the record that the district court granted his request at that time.

To the contrary, the record reflects that counsel was not allowed to withdraw until September 21,

2010, which was after the motion for new trial had been overruled by operation of law. On that same

date, appellate counsel was appointed. There is no evidence that counsel withdrew prior to that date.

On this record, we conclude that Hall has failed to rebut the presumption that she was represented

by counsel during the period for filing a motion for new trial.

                We overrule Hall’s first and second issues.


Motion for new trial

                We next address Hall’s fourth and fifth issues, as our disposition of these issues

informs the analysis of Hall’s two other remaining issues. In her fourth and fifth issues, Hall

argues that she was denied due process when the district court allowed her motion for new trial to

be overruled by operation of law and that the district court abused its discretion in failing

to grant the motion on the basis of her alleged Brady violations. In response, the State argues



        8
          Trial counsel specifically requested that he be appointed on retrial because he had
represented Hall during her first trial.

                                                   6
primarily that there was no Brady violation and thus the district court did not abuse its discretion in

overruling the motion.

                The motion for new trial contained numerous allegations against the State, most of

which have not been carried forward on appeal. In her appellate brief, Hall states that the motion

for new trial “concerned itself, in the main, with allegations that came to light, days before Hall’s

trial, that the Austin Police Department’s Forensics lab . . . had been accused of doing substandard,

shoddy, and incomplete DNA analysis with lax training and quality controls.” Hall asserted the

following material factual allegations in her motion for new trial.

                Prior to jury selection on June 28, 2010, according to Hall’s motion, the prosecutors

approached defense counsel and provided them with “a short document outlining what they alleged

were personnel issues by a disgruntled employee of the Austin Police Department Forensic Science

Division. The document was a short synopsis of a complaint filed by DNA analyst Cecily Hamilton

against the DNA Laboratory Director, Cassie Carradine. They explained that Ms. Hamilton had

resigned in May . . . [and they] assured [defense counsel] it did not reflect on the quality of the work

performed at the Austin Police Department Forensic Science Division.”

                On July 7, several days after the trial had concluded, defense counsel received a

“form email” from one of the prosecutors addressed to other prosecutors and members of the

criminal defense bar. The email, which was entitled, “APD DNA Complaints and Investigation—

IMPORTANT,” informed the recipients that “[t]he Travis County District Attorney’s Office has

recently been made aware of a complaint filed by former APD DNA analyst Cecily Hamilton” and

that the “complaint was investigated internally by the Austin Police Department.” Attached to the

email were several documents including an “Initial written concern by Hamilton dated February 11,

                                                   7
2010,” and an “Investigative Results Memo dated March 22, 2010.” According to counsel, it was

only after receiving this email that he “learned that this investigation had begun in February of 2010

and had ended with a Memo dated March 22, 2010.”

               Hall’s counsel went on to allege that this investigation had been documented in a

front-page article in the Austin American-Statesman on July 8. The article indicated that “thousands

of cases could be affected,” that the District Attorney had been notified of the investigation on

June 23, and that “last week” she had instructed her prosecutors to “notify defense attorneys involved

in any cases with DNA evidence.” Counsel claimed that “the ‘last week’ [the District Attorney] is

speaking of in the newspaper was the week of [Hall]’s re-trial.”

               Counsel went on to allege that the documents attached to the email he had received

were not the “short synopsis of personnel problems” that prosecutors had disclosed to counsel prior

to trial. Instead, counsel claimed, the documents contained allegations “regarding testing and quality

assurance” and “management of the lab.” Counsel included in his motion a summary of Hamilton’s

complaint against Carradine, which included allegations that Carradine had allowed a lab analyst

with “very significant issues and problems” to perform independent DNA analysis and that Carradine

had “misconstrued and misrepresented the facts about the quality assurance problems in the DNA

unit to upper management.”

               Counsel concluded that, “[r]egardless of the truth of the matters asserted in these

documents, it is clear that this was Brady material and any Assistant or Elected District Attorney

had an immediate duty to bring the information to the attention of the Defense by providing

all the documents in their possession.” Hall makes the same argument on appeal: “Whether those

allegations were true or not is beside the point. Substantive allegations had been made, and the

                                                  8
allegations were known by the state’s counsel to have been made, and the state was obligated to

inform Ms. Hall of the allegations, if for no other reason than for impeachment purposes.”9

                Because the alleged Brady violations were raised in the context of a motion for

new trial, we review the trial court’s ruling under an abuse-of-discretion standard. See Webb v. State,

232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim.

App. 2004); Pittman v. State, 321 S.W.3d 565, 570 (Tex. App.—Houston [14th Dist.] 2010, no pet.);

Hall, 283 S.W.3d at 165 (citing Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)).

Under this standard, an appellate court should uphold a trial judge’s ruling unless it is outside the

“zone of reasonable disagreement.” Hall, 283 S.W.3d at 165 (citing Oprean v. State, 201 S.W.3d

724, 726 (Tex. Crim. App. 2006)). In other words, we do not substitute our judgment for that of the

trial court, but rather we decide whether the trial court’s decision was arbitrary or unreasonable.

Charles, 146 S.W.3d at 208. We must view the evidence in the light most favorable to the trial

court’s ruling and presume that all reasonable factual findings that could have been made against

the losing party were made against that losing party. Id. Thus, a trial court abuses its discretion in

denying a motion for new trial only when no reasonable view of the record could support the

trial court’s ruling. Id.

                Before addressing the merits of the motion for new trial, the State raises a procedural

point concerning the motion. The State argues that Hall failed to present her motion for new trial

to the district court. A motion for new trial must be “presented” to the trial court within ten days of


        9
         There is no dispute that the State knew of the allegations made by Hamilton against
Carradine. In fact, in its motion in limine filed on the day of trial, the State requested that the
defense be prohibited from making “[a]ny reference to an allegation against Cassie Carradine by
Cecily Hamilton.”

                                                  9
being filed. Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009) (citing Tex. R. App.

P. 21.6). The term “present,” as used in this context, “means the record must show the movant for

a new trial sustained the burden of actually delivering the motion for new trial to the trial court or

otherwise bringing the motion to the attention or actual notice of the trial court.” Carranza v. State,

960 S.W.2d 76, 79 (Tex. Crim. App. 1998). “This may be accomplished in several ways such as,

for example, obtaining the trial court’s ruling on a motion for new trial.” Id. “[T]he presentment

‘must be directed to the trial court or another authorized to act on behalf of the trial court,’ and it

‘may be evidenced by the judge’s signature or notation on a proposed order or by a hearing date

set on the docket. This list is not meant to be exhaustive, but merely suggestive as to how one

may fulfill the communication requirement for presenting a motion for new trial.’” Stokes v. State,

277 S.W.3d 20, 22 (Tex. Crim. App. 2009) (quoting Carranza, 960 S.W.2d at 79). “The rationale

for this requirement is the same as that which supports preservation of error generally: A trial court

should not be reversed on a matter that was not brought to the trial court’s attention.” Rozell v. State,

176 S.W.3d 228, 230 (Tex. Crim. App. 2005). “Presenting the motion, along with a request for a

hearing, is required to let the court know that the defendant wants the trial court to act on the motion

and whether the defendant would like a hearing on the motion.” Id.

                In this case, there is no entry on the district court’s docket sheet regarding the

motion for new trial, no hearing on the motion was set or held, there is no signature or other notation

by the judge on the motion, the proposed order attached to the motion setting the matter for hearing

is completely blank, there is no order in the record denying the motion for new trial, and there is no




                                                   10
indication in the record that the court had actual knowledge that the motion for new trial was filed.10

There is a “register of actions” in the record that includes an entry reflecting the date the motion for

new trial was filed, but this appears to be nothing more than the district clerk’s computer-generated

record of documents that were filed in the district clerk’s office and the calendar settings in the case.

There is no entry on the clerk’s registry showing any presentment to or action by the district court

regarding the motion for new trial. The record, in short, does not reflect that the motion for new trial

was ever “presented” to the district court. Hall ultimately acknowledges as much in her brief,

observing, “[I]t is not clear from the record whether the motion for new trial was ever presented to

the district court.”11

                Moreover, even if the motion for new trial had been presented, we could not

conclude on this record that the district court abused its discretion in not granting the motion. In our

prior opinion addressing Hall’s previous Brady complaints, we explained the requirements that

Brady imposes on the State:


        A defendant in a criminal case has no general right to pretrial discovery of evidence
        in the State’s possession. However, under Brady and its progeny, the United States
        Supreme Court has recognized “what amounts to a federal constitutional right
        to certain minimal discovery.” These authorities hold that “[t]o protect a criminal
        defendant’s right to a fair trial, the Due Process Clause of the Fourteenth Amendment
        to the United States Constitution requires the prosecution to disclose exculpatory and
        impeachment evidence to the defense that is material to either guilt or punishment,”


        10
           We also observe that there is an entry on the district court’s docket sheet reflecting that
a motion for new trial was filed following Hall’s first trial. Thus, the absence of a notation on the
docket sheet reflecting the filing of the current motion for new trial is particularly probative of the
district court’s lack of awareness of the current motion.
        11
         In fact, this lack of presentment forms the basis of Hall’s ineffective-assistance-of-counsel
complaint, discussed below.

                                                   11
       and that the State’s failure to comply with this duty constitutes harm requiring
       reversal and a new trial.


Hall, 283 S.W.3d at 163 (internal citations omitted). The failure to comply with this duty violates

due process “irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.

However, to find reversible error under Brady, a defendant must show three things: (1) the State

failed to disclose evidence in its possession; (2) the withheld evidence is favorable to the defendant;

and (3) the evidence is “material.” Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002).

The evidence may be material to either guilt or punishment. Brady, 373 U.S. at 87.

               The district court would not have abused its discretion in finding that the evidence

at issue was not material. As we explained in our prior opinion, undisclosed evidence is “material”

to guilt or punishment “only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.” Hall, 283 S.W.3d

at 171 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). A “reasonable probability” is “a

probability sufficient to undermine confidence in the outcome.” Id. In other words, “[t]he question

is not whether the defendant would more likely than not have received a different verdict with

the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a

verdict worthy of confidence.” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Although

the standard “is not a sufficiency of the evidence test,” the defendant must “show[] that the favorable

evidence could reasonably be taken to put the whole case in such a different light as to undermine

confidence in the verdict.” Id. (quoting Kyles, 541 U.S. at 434-35). “The mere possibility that an

item of undisclosed information might have helped the defense, or might have affected the outcome

of the trial, does not establish ‘materiality’ in the constitutional sense.” Hampton, 86 S.W.3d at 612

                                                  12
(quoting United States v. Agurs, 427 U.S. 97, 109 (1976)). “Usually, a determination concerning

the materiality prong of Brady involves balancing the strength of the [favorable] evidence against

the evidence supporting [the verdict].” Id. at 613. We must accordingly consider “the entire body

of evidence” at trial. Id.

                In this case, the favorable evidence had a tendency to undermine the State’s

DNA evidence and the credibility of the State’s DNA expert, Cassie Carradine. However, on this

record, we cannot conclude that there is a reasonable probability that, had such evidence been

disclosed, the result of the proceeding would have been different. First, the allegations by Hamilton

against Carradine related to a particular analyst under Carradine’s supervision, Diana Morales. But

there is no indication in the record that Morales participated in the DNA testing in Hall’s case.

Rather, Carradine testified that analyst Maurice Padilla “did the DNA testing” while Carradine

herself “did all the technical review.” Carradine testified that this meant that she “went back to

all the raw data that was generated and made all [her] own interpretations . . . and verified that

my results were consistent with his results.” Hamilton’s allegations, as far as the record reveals,

implicated Carradine’s supervisory and management skills, not her abilities as an analyst. Also,

there is no indication in the record as to the time frame of the allegations against Carradine and

whether those allegations occurred during the time period in which Hall’s DNA was tested.

Additionally, Hall’s own DNA expert, William Watson, testified that he had independently reviewed

the DNA test results himself and that he agreed with the findings regarding the presence of Hall’s

DNA on certain items and the absence of her DNA on other items. When asked if had found any

problems with the testing procedures, Watson testified, “Nothing that stood out as a major issue, no.

I can’t even really think of any minor issues specifically related to the testing itself, the generation

                                                  13
of data from the samples that were tested by the laboratory.” Watson added on cross-examination

that Carradine “has a very good reputation as a professional” and that he, as an auditor with the

agency that accredits Carradine’s lab, does not have any issues with the quality of the work

performed there.

               Also, according to the DNA evidence presented, Hall was positively excluded as a

contributor to most of the items recovered at the crime scene, and defense counsel effectively

emphasized this during his cross-examination of Carradine and his direct examination of Watson.

Thus, the disclosure of the favorable evidence, although it might have undermined the State’s theory

that DNA evidence proved Hall was present in the condominium on the night in question, could

have also undermined the defense theory that the DNA evidence exonerated her.12 For this reason,


       12
          In fact, it was defense counsel that emphasized the DNA evidence in its closing argument,
while the State discounted it. Defense counsel argued,

       We turn to those things that have no emotion, and in this case it’s science because
       science we can trust. And in this case it’s DNA, and the DNA proves what [Hall]
       has been proclaiming this entire time. Both experts agree that the testing and the
       procedures performed in this case were performed correctly. . . . And the DNA
       shows that on a blue towel and a shoe, only 4 loci out of 13 were consistent with
       [Hall] and as many as 25 percent of the Caucasian population chosen at random. . . .
       And of all the DNA that is found, more importantly where she is not found: the
       machete, the hacksaw, and the buck knife. And out of all of those items where
       Ms. Cave’s blood is found, where Colton Pitonyak’s blood is found and where a
       mixture of other blood is found, 18 items in total, Ms. Hall is not only not found;
       she is excluded. No, DNA tells us who did this. Colton Pitonyak. And how do we
       know? Because his DNA is in all of those items.

In contrast, the State argued,

       We spent an hour listening to their DNA expert . . . tell you that he agrees with the
       State’s DNA expert. . . . But this evidence in this case is not . . . DNA is a piece of
       it, but it’s not all of it. And you heard an hour going on and on and on about how no
       one can say that she touched the gun, and DNA doesn’t prove she touched the gun.

                                                 14
defense counsel might not have wanted to present the evidence even if it had been disclosed to him.

Thus, the district court could have found for this reason also that there was not a reasonable

probability that, had the evidence been disclosed, the result of the proceeding would have

been different.

                  Moreover, this was not a case that turned on DNA evidence. As the State emphasized

during its closing argument, there was considerable evidence in the State’s case against Hall that was

completely independent of the DNA evidence. The evidence included the testimony of:


       Nora Sullivan, a friend of Pitonyak’s, who testified that Hall had told her that she had
       been with Pitonyak after Cave was killed and that Hall was “trying to motivate him
       or urge him . . . to complete their intention” to “dismember” Cave’s body.

       Ryan Martindill and Star Salzman, friends of Hall’s, who testified that Hall had told
       them that she had gone with Pitonyak to Mexico and that they were “on vacation.”

       Joseph Smith, a Deputy United States Marshall with the Lone Star Fugitive Task
       Force, who testified that he found video footage of Pitonyak and Hall crossing
       the border together into Mexico the night following the murder, that in the video,
       “Laura Hall was clearly driving,” and that Hall was found in Mexico with Pitonyak.

       Detective Mark Gilchrest of the Austin Police Department, who testified that
       Pitonyak’s cell phone showed a call sent to and a text message received from Hall’s
       cell phone on the morning following the murder and that Hall’s Facebook page had
       a favorite quotation that read, “You’re part music and part blood, part thinker and
       part killer, and if you can find that—all of that within you and control it, then you
       deserve to be set apart” and “I should really be more of a horrific person. It’s in the
       works.”

       Said Aziz, a friend of Hall’s, who testified that Hall had called him after she had been
       apprehended in Mexico and told him, “I have been all up in this shit since about like


       We don’t need DNA to prove she touched the gun. Their client told 48 Hours she
       touched the gun. . . . So science does not give us the answer to what happened. It’s
       a piece of it, but it’s not the whole thing. If you only focus on the DNA, you are
       going to get sidetracked.

                                                  15
       two hours after shit started”; that she wanted to help Pitonyak so that “he might
       walk”; and that, when he asked her why she wanted to help Pitonyak, she answered
       “that she loved him” and “that’s how she rolled.”

       Javier Rosales, a co-worker of Hall’s, who testified that Hall had told him that she
       was the “mastermind” of the plan for her and Pitonyak to “escape” to Mexico.

       Katy Grayson, a convicted felon who had met Hall while they were in jail together,
       who testified that Hall had told her that “the eeriest part” of cutting up a body “was
       cutting through bone.”

       Christy Freeman, a convicted felon who had met Hall in jail, who testified that Hall
       had stated in a group therapy session that “the whore was just a dancer. She deserved
       to die.”

       Henriette Langenbach, another convicted felon who had met Hall in jail, who
       testified that Hall had told her that it was her idea to dispose of the body because
       Pitonyak “just couldn’t think straight” and that Hall had suggested they “cut up the
       body by removing the hands, the feet and the head” because “those three things
       would be the way to identify a body.”

       Various other witnesses who testified to Hall’s demeanor and statements that she had
       made while in jail.

       Elizabeth Peacock, a medical examiner who performed the autopsy on Cave’s body,
       who testified that Cave’s body was subject to several post-mortem wounds, including
       stab wounds to the face, neck, and chest; severed hands and head, and a gunshot
       wound through her neck into her head.

       The stepfather and mother of the victim, who provided testimony about how much
       they loved their daughter, how much they feared and felt threatened by Hall when she
       was out on bail, and how they felt safer when she was incarcerated.


The evidence also included numerous exhibits, including cell phone records showing that Hall and

Pitonyak had communicated with each other following the murder, transcripts of jailhouse phone

conversations between Hall and her friends and family, and an episode of the television program

48 Hours, in which Hall was interviewed extensively and made statements that supported the State’s

theory of the case.

                                                16
                We conclude that the record in this case supports a finding by the district court that

there is not a reasonable probability that, had the evidence concerning the issues at the forensics lab

been disclosed, the result of the proceeding would have been different. Accordingly, even assuming

the motion for new trial had been presented to the district court, we could not conclude that the

district court abused its discretion in overruling the motion.

                We overrule Hall’s fourth and fifth issues.


Effective assistance of counsel

                In her third issue, Hall claims that she was denied effective assistance of counsel

“when her trial counsel wrongfully believed he had been relieved of his duty to represent Hall.” In

her sixth issue, Hall similarly asserts that trial counsel, believing he had become a fact witness in the

motion for new trial, failed to present his motion for new trial to the district court. “The failure of

such presentment,” Hall claims, “denied [her] effective assistance of counsel.”

                Hall’s arguments implicate Strickland v. Washington, 466 U.S. 668 (1984). To

prevail on a Strickland claim, Hall must prove by a preponderance of the evidence that counsel was

ineffective. Perez v. State, 310 S.W.3d 890, 892 (Tex. Crim. App. 2010) (citing Strickland, 466 U.S.

668). There are two required components of an ineffectiveness claim: performance and prejudice.

Id. First, Hall must prove that counsel’s performance was deficient. Strickland, 466 U.S. at 687;

Perez, 310 S.W.3d at 892. To satisfy this prong of the analysis, Hall “must show that counsel’s

representation fell below an objective standard of reasonableness” based upon “prevailing

professional norms.” Strickland, 466 U.S. at 688; Perez, 310 S.W.3d at 893. For this performance

inquiry we consider all of the circumstances, with “a strong presumption that counsel’s conduct falls


                                                   17
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 688-89; Perez,

310 S.W.3d at 893.

                “Second, the defendant must show that the deficient performance prejudiced

the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. To succeed under the

prejudice component, Hall “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id.

“It is not enough for the defendant to show that the errors had some conceivable effect on

the outcome of the proceeding.” Id. at 693. Rather, she must show that “there is a reasonable

probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.”

Id. at 695. “In making this determination, a court hearing an ineffectiveness claim must consider

the totality of the evidence before the judge or jury.” Id. “[A] verdict or conclusion only weakly

supported by the record is more likely to have been affected by errors than one with overwhelming

record support.” Id. at 696.

                There is nothing in the record to support Hall’s theory that trial counsel “wrongfully

believed he had been relieved of his duty to represent Hall.” The record does not indicate what

counsel believed or, for that matter, what counsel did after filing the motion for new trial and

motion to withdraw. There are no affidavits from Hall, counsel, or anyone else shedding light on

the matter. Although counsel, in his motion for new trial, asked to be allowed to withdraw because

he had become a fact witness, there is no indication in the record that following those filings, he

ceased in his representation of Hall. Absent evidence to the contrary, we must presume counsel

                                                  18
continued in his representation until the district court allowed him to withdraw. See Cooks,

240 S.W.3d at 911.

                As for the fact that counsel did not present the motion for new trial to the

district court, the record is silent as to the reasons for counsel’s decision. When the record is silent

regarding the reasons for counsel’s decisions, we will not find deficient performance unless the

challenged conduct was “so outrageous that no competent attorney would have engaged in it.”

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). We cannot say on this record

that no competent attorney would have decided not to present the motion for new trial. Counsel

could have decided, for the reasons discussed above or for other reasons, that he did not have

sufficient evidence to support his motion or that the motion for new trial had little to no chance of

success. There is also the possibility that counsel filed the motion for new trial simply to extend the

appellate deadline or that, after filing the motion, counsel spoke with his client about the motion

and was told by her that, for whatever reason, she did not wish to pursue the motion further. See

Oldham, 977 S.W.2d at 363; see also Venzor v. State, No. 04-05-00808-CR, 2006 Tex. App. LEXIS

6149, at *4-5 (Tex. App.—San Antonio July 19, 2006, no pet.) (mem. op., not designated for

publication) (declining to find ineffective assistance when record did not contain specific explanation

for counsel’s decision to not present motion for new trial and observing that “a motion for new trial

is often filed exclusively to extend the appellate time limits”). On this record, we can do nothing but

speculate as to the reasons for counsel’s conduct. Such speculation does not satisfy the requirements

of Strickland. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

                We also cannot conclude on this record that Hall proved that she was prejudiced

by counsel’s decision not to present the motion for new trial. For the reasons discussed above,

                                                  19
the record fails to show a reasonable probability that, but for counsel not presenting the motion for

new trial to the district court, the result of the proceeding would have been different. See Strickland,

466 U.S. at 693-96.

                We overrule Hall’s third and sixth issues.


                                          CONCLUSION

                We affirm the judgment of the district court.




                                                __________________________________________

                                                Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: August 24, 2011

Do Not Publish




                                                  20
