                                                                  ACCEPTED
                                                              01-15-00484-CR
                                                   FIRST COURT OF APPEALS
                                                           HOUSTON, TEXAS
                                                       10/13/2015 10:14:46 AM
    No. 01-15-00484-CR                                  CHRISTOPHER PRINE
                                                                       CLERK
    No. 01-15-00485-CR

             In the
       Court of Appeals                   FILED IN
                                   1st COURT OF APPEALS
            For the                    HOUSTON, TEXAS
    First District of Texas       10/13/2015 10:14:46 AM
          At Houston               CHRISTOPHER A. PRINE
                                           Clerk
  
    No. 1432555, 1432805
  In the 230th District Court
   Of Harris County, Texas
  
CHRISTIAN AVERY NORRIS
           Appellant
               V.
   THE STATE OF TEXAS
            Appellee
  

 STATE’S APPELLATE BRIEF

  

                     DEVON ANDERSON
                     District Attorney
                     Harris County, Texas

                     KATIE DAVIS
                     Assistant District Attorney
                     Harris County, Texas
                     State Bar Number: 24070242
                     davis_katie@dao.hctx.net

                     ALAN OTTO
                     Assistant District Attorney
                     Harris County, Texas

                     1201 Franklin Street, Suite 600
                     Houston, Texas 77002
                     Telephone: (713) 755-5826
                     Fax Number: (713) 755-5809

ORAL ARGUMENT WAIVED
                 STATEMENT REGARDING ORAL ARGUMENT

       Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State waives

oral argument since the issues appear well-settled in Texas jurisprudence. But the

State will present argument if this Court deems it necessary.


                         IDENTIFICATION OF THE PARTIES

Counsel for the State:

       Devon AndersonDistrict Attorney of Harris County

       Katie DavisAssistant District Attorney on appeal

       Alan Otto Assistant District Attorney at trial

Appellant or Criminal Defendant:

       Christian Avery Norris

Counsel for Appellant:

       Syngman Stevens, Jr.—Counsel on Appeal

       Terry Gaiser—Counsel at trial


Trial Judge:

       Honorable Brad HartPresiding Judge of 230th District Court




                                         i
                                                 TABLE OF CONTENTS
                                                                                                                                     Page
STATEMENT REGARDING ORAL ARGUMENT .......................................................... i

IDENTIFICATION OF THE PARTIES ................................................................................ i

TABLE OF CONTENTS........................................................................................................... ii

INDEX OF AUTHORITIES ................................................................................................... iii

STATEMENT OF THE CASE ................................................................................................. 1

STATEMENT OF FACTS ........................................................................................................ 1

SUMMARY OF THE ARGUMENT ..................................................................................... 3

REPLY TO APPELLANT’S SOLE POINT OF ERROR .................................................... 3
   I.     The appellant has failed to show that his trial counsel rendered a deficient
          performance that harmed him. ................................................................................... 3

          A. The totality of the representation afforded the appellant was above the prevailing
          professional norms. ............................................................................................................. 5

          B. The appellant failed to show that trial counsel was deficient in regards to his
          presentation of evidence at sentencing. ................................................................................ 6

          C. The appellant failed to meet the prejudice prong of Strickland because he failed to show
          that the result of the trial would have been different had trial counsel not made these
          alleged errors. .....................................................................................................................13
CONCLUSION .........................................................................................................................16

CERTIFICATE OF SERVICE AND COMPLIANCE ...................................................... 17




                                                                      ii
                                           INDEX OF AUTHORITIES


CASES

Batiste v. State,
  888 S.W.2d 9 (Tex. Crim. App. 1994) ............................................................................ 14
Beyince v. State,
  954 S.W.2d 878 (Tex. App.—
  Houston [14th Dist.] 1997, no pet.) ................................................................................... 8
Bone v. State,
  77 S.W.3d 828 (Tex. Crim. App. 2002) .....................................................................13, 14
Burdine v. Johnson,
  262 F.3d 336 (5th Cir. 2001).............................................................................................. 14
Cantu v. State,
  993 S.W.2d 712 (Tex. App.—
  San Antonio 1999, pet. ref’d) ............................................................................................. 10
Chamberlain v. State,
  998 S.W.2d 230 (Tex. Crim. App. 1999) ........................................................................ 12
Craig v. State,
  847 S.W.2d 434 (Tex. App.—
  El Paso 1993, no pet.) ........................................................................................................... 11
Ex parte Rogers,
  369 S.W.3d 858 (Tex. Crim. App. 2012) .........................................................................15
Flemming v. State,
  949 S.W.2d 876 (Tex. App.—
  Houston [14th Dist.] 1997, no pet.) ................................................................................. 12
Garcia v. State,
  57 S.W.3d 436 (Tex. Crim. App. 2001) .......................................................................... 12
Goodspeed v. State,
  187 S.W.3d 390 (Tex. Crim. App. 2005) ........................................................................ 12
Jagaroo v. State,
  180 S.W.3d 793 (Tex. App.—
  Houston [14th Dist.] 2005, pet. ref’d) .............................................................................. 9



                                                                 iii
Jordan v. State,
   859 S.W.2d 418 (Tex. App.—
   Houston [1st Dist.] 1993, no pet.) ..................................................................................... 11
King v. State,
  649 S.W.2d 42 (Tex. Crim. App. 1983 ............................................................................ 10
Kizzee v. State,
  788 S.W.2d 413 (Tex. App.—
  Houston [1st Dist.] 1990, pet. ref’d) ................................................................................ 10
Lair v. State,
  265 S.W.3d 580 (Tex. App.—
  Houston [1st Dist.] 2008, pet. ref’d)................................................................................ 10
Lopez v. State,
  343 S.W.3d 137 (Tex. Crim. App. 2011) ............................................................................ 4
Mallet v. State,
 65 S.W.3d 59 (Tex. Crim. App. 2001)............................................................................... 6
Miniel v. State,
  831 S.W.2d 310 (Tex. Crim. App. 1992)............................................................................ 4
Mitchell v. State,
  68 S.W.3d 640 (Tex. Crim. App. 2002) ........................................................................... 4
Perez v. State,
  403 S.W.3d 246 (Tex. App.—
  Houston [14th Dist.] 2008),
  aff’d, 310 S.W.3d 890 (Tex. Crim. App. 2010) ............................................................... 10
Robertson v. State,
  187 S.W.3d 475 (Tex. Crim. App. 2006) .........................................................................13
Rodriguez v. State,
  336 S.W.3d 294 (Tex. App.—
  San Antonio 2010, pet. ref’d) ............................................................................................. 12
Rodriguez v. State,
  899 S.W.2d 658 (Tex. Crim. App. 1995) .......................................................................... 4
San Roman v. State,
  681 S.W.2d 872 (Tex. App.—
  El Paso 1984), writ refused (July 10, 1985) .......................................................................... 8



                                                              iv
Strickland v. Washington,
  466 U.S. 668 (1984) ........................................................................................... 3, 4, 5, 13, 15
Thompson v. State,
  9 S.W.3d 808 (Tex. Crim. App. 1999)......................................................................... 6, 16
Thompson v. State,
  915 S.W.2d 897 (Tex. App.—
  Houston [1st Dist.] 1996, pet. ref’d) ................................................................................. 11
Valencia v. State,
  891 S.W.2d 652 (Tex. App.—
  Houston [1st Dist.] 1993),
  rev’d on other grounds, 946 S.W.2d 81 (Tex. Crim. App. 1997) ..................................... 14
Vargas v. State,
  13-99-290-CR, 2000 WL 34410037 (Tex. App.—
  Corpus Christi Aug. 31, 2000, no pet.) ............................................................................15
Ware v. State,
 875 S.W.2d 432 (Tex. App.—
 Waco 1994, pet. ref’d) ........................................................................................................... 8
Wilkerson v. State,
  726 S.W.2d 542 (Tex. Crim. App. 1986),
  cert. denied, 480 U.S. 940 (1987) ....................................................................................... 4
Woodford v. Visciotti,
 537 U.S. 19 (2002) .................................................................................................................13
Young v. State,
  425 S.W.3d 469 (Tex. App.—
  Houston [1st Dist.] 2012, pet. ref’d) .............................................................................. 7, 8


STATUTES

TEX. CRIM. PROC. CODE ANN.
  art. 42.12 § 3 (West supp. 2014) ......................................................................................... 7
TEX. CRIM. PROC. CODE ANN.
  art. 42.12 § 3(e) (West supp. 2014) ................................................................................... 7
TEX. CRIM. PROC. CODE ANN.
  art. 42.12 § 3g (West supp. 2014)....................................................................................... 7


                                                                  v
TEX. CRIM. PROC. CODE ANN.
  art. 42.12 § 4(e) (West supp. 2014) ................................................................................... 7
TEX. CRIM. PROC. CODE ANN.
  art. 42.12 § 5 (West supp. 2014)......................................................................................... 7
TEX. CRIM. PROC. CODE ANN.
  art. 42.12 § 5(d) (West supp. 2014)................................................................................... 8


RULES

TEX. R. APP. P. 9.4(g) .................................................................................................................. i
TEX. R. APP. P. 38.1(i) ............................................................................................................... 12
TEX. R. APP. P. 39.1 ....................................................................................................................... i




                                                                     vi
TO THE HONORABLE COURT OF APPEALS:


                              STATEMENT OF THE CASE

       The State charged the appellant with assault of a family member, second

offender and violation of a protective order (1 CR 18, 28; 2 CR 10; 2 RR 6).1 The

appellant pled guilty as charged in the indictment without a plea bargain (1 CR

46-58; 2 CR 38-51). After a pre-sentence investigation (PSI) and punishment

hearing on April 29, 2015, the trial court found the appellant guilty and sentenced

the appellant to 4 years confinement in the Institutional Division of the Texas

Department of Criminal Justice (1 CR – 61-62; 2 CR – 54-55; 2 RR 51). The

appellant filed a timely notice of appeal, and the trial court certified that he had

the right to appeal (1 CR – 56, 65-66; 2 CR – 48, 58-59).


                                STATEMENT OF FACTS

       Joriana Prespentt and the appellant dated since high school and share a

daughter. See (St. Ex. #2). Throughout their relationship, the appellant controlled

and abused Prespentt. See (St. Ex. #2). In 2012, the appellant was convicted of

assaulting Prespentt in Hays County, and a two-year protective order was put in




1
 Due to their being two clerk’s record “1 CR” will refer to trial court cause number 1432555, and
“2 CR” will refer to trial court cause number 1432805.
place (2 CR – 7; 2 RR 8-9, 15-16, 41).2 See (St. Ex. #2). The protective order

prohibited the appellant from assaulting, contacting, threatening, or harassing

Prespentt (2 CR – 7).

       On June 20, 2014, the appellant became upset with Prespentt for texts and

photos she received from an ex-boyfriend. See (St. Ex. #2). The appellant pushed

Prespentt and squeezed her arm, causing her pain. See (St. Ex. #2). The argument

escalated, and the appellant threatened to take their two-year-old daughter away

from Prespentt (2 RR 12). See (St. Ex. #2). The appellant continued to push

Prespentt, causing her to fall into a toilet, fall into the stairwell, and sprain her

finger (2 RR 12). See (St. Ex. #2, 4-7). He took Prespentt’s phone and threw it,

causing it to shatter (2 RR 12). See (St. Ex. #2, 7). He also scratched Prespentt on

her chest (2 RR 11). See (St. Ex. #2, 4-5).

       The appellant took their daughter and left the home. See (St. Ex. #2).

Prespentt called the police, who quickly located the appellant driving with their

daughter not in a car seat. See (St. Ex. #2). Officers observed scratches on

Prespentt. See (St. Ex. #2). The appellant was arrested on open warrants and later

charged with assaulting a family member as a second offender and violating

Prespentt’s protective order against him. See (St. Ex. #2).


2
 The protective ordered was signed on July 11, 2012, and was effective for two years from that
date (2 CR – 7).


                                              2
                       SUMMARY OF THE ARGUMENT

      The appellant argues that trial counsel was ineffective in his presentation of

evidence during his sentencing hearing. But the appellant failed to show what else

could have been presented and that it would have benefitted his case. Moreover,

the appellant failed to show how he was prejudiced.


             REPLY TO APPELLANT’S SOLE POINT OF ERROR

      In the appellant’s sole point of error, he argues that he received ineffective

assistance of counsel during his sentencing hearing. (App’nt Brf. 3-10). During the

sentencing hearing, the State entered the PSI Report, which included notes from

the offense report, a victim impact statement from Prespentt, a statement from the

appellant, the appellant’s criminal history, the appellant’s social history, and

character letters on the appellant’s behalf (2 RR 6-7). See (St. Ex. #2). Prespentt

testified about the assault and her relationship with the appellant, and she asked

the court to sentence him to prison (2 RR 7-27). See (St. Ex. #2, p. 10). The

appellant asked the court for leniency (2 RR 39). See (St. Ex. #2, p. 16).

      I.     The appellant has failed to show that his trial counsel rendered a
             deficient performance that harmed him.
      A claim of ineffective assistance is governed by the two-prong test set out in

Strickland v. Washington, 466 U.S. 668 (1984). In order to prove an ineffective

assistance claim, the appellant must first show that the trial counsel’s performance


                                           3
was deficient. Id. at 687; see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.

2002). “Specifically [the appellant] must prove by a preponderance of the

evidence, that the trial counsel’s representation fell below the objective standard

of professional norms.” Mitchell, 68 S.W.3d at 642. The appellant must also show

that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687.

Prejudice is shown by the reasonable probability that but for his counsel’s

unprofessional errors, the result of the proceeding would have been different.

Mitchell, 68 S.W.3d at 642.

      In reviewing a claim of ineffective assistance, a reviewing court presumes

that trial counsel was competent, and the appellant has the burden to rebut this

presumption by proving that his attorney’s representation was not sound strategy.

Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992) (citing Strickland, 466

U.S. at 689). An appellate court looks to the totality of the representation, rather

than isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542,

548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987); Rodriguez v. State, 899

S.W.2d 658, 665 (Tex. Crim. App. 1995). And an appellate court does not judge

trial counsel’s decisions in hindsight. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.

App. 2011). Rather, “[t]he benchmark for judging any claim of ineffectiveness must

be whether counsel’s conduct so undermined the proper functioning of the




                                          4
adversarial process that the trial cannot be relied on as having produced a just

result.” Strickland, 466 U.S. a 686.

              A.     The totality of the representation afforded the
                     appellant was above the prevailing professional
                     norms.
       In the present case, Terrence “Terry” Gaiser was appointed to the

appellant’s cases on June 23 and 25, 2014 (1 CR – 15; 2 CR – 9). Gaiser made at

least three appearances and filed a discovery motion on behalf of the appellant (1

CR 15, 19-26; 2 CR 9, 12-19).3 Gaiser submitted several character letters to be

included in the PSI report. See (St. Ex. #2). Gaiser filed a motion requesting

community supervision, which indicated that the appellant never had been

convicted of a felony and never had been placed on community supervision for a

felony (1 CR 44; 2 CR 36).

       During the sentencing hearing, Gaiser cross-examined Prespentt and

exposed inconsistencies in her account of her relationship with the appellant (2

RR 15-23, 25-27). Specifically, Gaiser was able to show that Prepentt contacted

the appellant on several occasions, despite the fact that a protective order was in

place and contradicting her testimony that she could not sleep at night because of

the assault (2 RR 18-20, 23, 25, 27). Through the appellant’s testimony, Gaiser

showed that the appellant was employed and in school, and explained his goals for

3
 The cases were set on the expedited track under Harris County’s “Comprehensive Pretrial
Conference/Trial Setting Order” (1 CR – 19, 21; 2 CR 12, 14).


                                           5
the future (2 RR 28-40). Additionally, Gaiser developed testimony that further

contradicted Prespentt’s account of their relationship (2 RR 29-39). Furthermore,

Gaiser asked the court for probation (2 RR 48). Thus, the totality of the

representation afforded the appellant was above the prevailing professional norms.

             B.    The appellant failed to show that trial counsel was
                   deficient in regards to his presentation of evidence at
                   sentencing.
      The appellant contends that his trial counsel was deficient in regards to his

presentation of evidence at sentencing. (App’nt Brf. 5-10). But all his complaints

merely indicate that he would have done things differently and are based on

speculation. The appellant brings each of his complaints for the first time on direct

appeal; thus, the record cannot adequately reflect the motives behind trial

counsel’s actions. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)

(holding that in order to defeat the strong presumption of reasonable professional

assistance, “any allegation of ineffectiveness must be firmly founded in the record,

and the record must affirmatively demonstrate the alleged ineffectiveness.”); Mallet

v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (noting a record on direct appeal

cannot adequately reflect the motives behind trial counsel’s actions).

      The appellant complains that trial counsel failed to offer proof that the

appellant was probation eligible. (App’nt Brf. 5-6). But the record shows that trial

counsel filed a motion requesting probation in both cases indicating that the



                                         6
appellant had never been convicted of a felony and had never been placed on

community supervision for a felony (1 CR – 44; 2 CR 36). Moreover, the PSI report

included evidence of the appellant’s prior convictions and sentences, none of

which were for felonies or showed the appellant had previously been granted

community supervision. See (St. Ex. #2, pp. 11, 16-17, and TRAS Attachment). The

appellant requested probation from the court to be able to attend college in the

PSI report. See (St. Ex. #2).

      Additionally, because this was a guilty plea to the trial court, trial counsel

was not required to present evidence to support the appellant’s request for

probation. Young v. State, 425 S.W.3d 469, 472, 476-77 (Tex. App.—Houston [1st

Dist.] 2012, pet. ref’d). Section 4 of Article 42.12 requires a sworn motion and

record evidence that a defendant has not been convicted of a felony before a jury

may consider probation. TEX. CRIM. PROC. CODE ANN. art. 42.12 § 4(e) (West supp.

2014). But no such requirement is listed in Sections 3 or 5, which allow the trial

court to order community supervision or defer adjudication respectively. Compare

TEX. CRIM. PROC. CODE ANN. art. 42.12 § 4(e) (West supp. 2014), with TEX. CRIM.

PROC. CODE ANN. art. 42.12 § 3 (West supp. 2014), and TEX. CRIM. PROC. CODE

ANN. art. 42.12 § 5 (West supp. 2014); see also TEX. CRIM. PROC. CODE ANN. art.

42.12 § 3(e) (West supp. 2014) (limiting when a court may order community

supervision); TEX. CRIM. PROC. CODE ANN. art. 42.12 § 3g (West supp. 2014)


                                         7
(listing offenses and circumstances under which Section 3 does not apply); TEX.

CRIM. PROC. CODE ANN. art. 42.12 § 5(d) (West supp. 2014) (limiting when a court

may defer adjudication).

      The appellant relies on San Roman v. State, 681 S.W.2d 872 (Tex. App.—El

Paso 1984), writ refused (July 10, 1985) and Ware v. State, 875 S.W.2d 432 (Tex.

App.—Waco 1994, pet. ref’d). (App’nt Brf. 5-6). But both cases dealt with a jury’s

consideration of probation. San Roman, 681 S.W.2d at 875; Ware, 875 S.W.2d at 436-

37. Moreover, in Ware, the court specifically stated that the holding was limited to

the narrow circumstances of that case. Ware, 875 S.W.2d at 437. Thus, both are

distinguishable from the facts of the present case.

      Furthermore, the appellant failed to bring forward what further evidence

would have been admitted to establish that he was probation eligible in a motion

for new trial. See Beyince v. State, 954 S.W.2d 878, 880 (Tex. App.—Houston [14th

Dist.] 1997, no pet.) (holding that without such evidence, this Court cannot

determine whether the failure was “a mere mistake, part of a more egregious

omission, or the result of the unavailability of [such] evidence.”). Thus, he has not

shown trial counsel was deficient for failing to present evidence to prove eligibility

for probation. See Young, 425 S.W.3d at 477 (Keyes, J. concurring) (finding counsel

not deficient for failure to file a specific motion seeking deferred adjudication




                                          8
when the court was aware based on the PSI that the appellant was asking for

probation).

      The appellant argues that trial counsel failed to present mitigating evidence

for the court’s consideration. (App’nt Brf. 7). But the appellant fails to describe or

provide proof of what mitigating factors existed. Mere speculation about the

possibility of mitigating factors that the trial court could have considered does not

overcome the strong presumption of trial strategy. Jagaroo v. State, 180 S.W.3d 793,

799 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Moreover, as previously

stated, trial counsel thoroughly cross-examined Prespentt and presented

testimony from the appellant that called several of Prespentt’s accounts of their

relationship into question (2 RR 15-23, 25-27).

      Furthermore, as previously stated, trial counsel included character letters, a

letter offering employment, and proof of enrollment in college on the appellant’s

behalf in the PSI report. See (St. Ex. #2, Attachments); Jagaroo, 180 S.W.3d at 799

(holding that the defendant failed to show deficiency when he did not file a

motion for new trial and failed to point to anything to support his contention that

other mitigating evidence should have been presented, and the record showed that

counsel had procured positive letters on his behalf from employers, friends and

family members that were attached to the PSI report).




                                          9
      The appellant argues that trial counsel failed to call witnesses on his behalf.

(App’nt Brf. 7). But the appellant failed to show what witnesses would have been

called and that their testimony would have benefitted his case. Cantu v. State, 993

S.W.2d 712, 719 (Tex. App.—San Antonio 1999, pet. ref’d) (noting “[a] defendant

who complains about trial counsel’s failure to call witnesses must show the

witnesses were available and that he would have benefitted from their

testimony.”) (citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983), and

Kizzee v. State, 788 S.W.2d 413, 416–17 (Tex. App.—Houston [1st Dist.] 1990, pet.

ref’d); cf. Perez v. State, 403 S.W.3d 246, 251-52 (Tex. App.—Houston [14th Dist.]

2008), aff’d, 310 S.W.3d 890 (Tex. Crim. App. 2010) (finding counsel deficient for

failing to interview two alibi witnesses that Perez asked him to contact when

record showed those witnesses provided personal affidavits to what they would

have testified to); Lair v. State, 265 S.W.3d 580, 595 (Tex. App.—Houston [1st

Dist.] 2008, pet. ref’d) (finding counsel deficient when appellant provided

affidavits from over twenty witnesses, including appellant’s mother, relatives, and

neighbors, who were ready and willing to testify on appellant’s behalf at the

punishment hearing, but were never contacted by appellant’s trial counsel).

      The appellant argues that trial counsel summarized the evidence in a

manner favorable to the State. (App’nt 7-9). The appellant focuses on trial

counsel’s suggestion that the appellant spend “some time” in the county jail (2 RR


                                         10
48). (App’nt Brf. 8). But in his next sentence, trial counsel requested that the trial

court grant defer adjudication after having the appellant spend “some time” in jail

(2 RR 48). Trial counsel argued that with deferred adjudication the appellant had

a chance to become a productive citizen and better father to his daughter (2 RR

48). It is likely that, due to the violent nature of the offenses and the fact that the

appellant could not follow a court order, trial counsel felt this was the only way

the trial court would consider deferred adjudication. See Thompson v. State, 915

S.W.2d 897, 904 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (finding it

plausible “that counsel, after reviewing the evidence to be presented, decided that

the best strategy would be to appear open and honest to the jury in hopes of

mitigating punishment”); Jordan v. State, 859 S.W.2d 418, 422 (Tex. App.—Houston

[1st Dist.] 1993, no pet.) (affirming where trial counsel admitted the defendant’s

guilt in closing argument in the hope of securing more favorable sentencing).

      Moreover, trial counsel requested deferred adjudication at the close of his

argument (2 RR 48). Thus, reviewing trial counsel’s argument in its entirety it is

not so favorable to the State to render it ineffective. Cf. Craig v. State, 847 S.W.2d

434, 436 (Tex. App.—El Paso 1993, no pet.) (finding counsel’s argument that

summarized the evidence in a “State-oriented fashion” deficient in combination

with fifteen other instances of deficient performance throughout trial).




                                          11
      Furthermore, because the appellant’s allegation of ineffective assistance of

counsel was not raised in a motion for new trial, trial counsel has had no

opportunity to explain his conduct. And absent such opportunity, this Court

should not find deficient performance unless the challenged conduct was “so

outrageous that no competent attorney would have engaged in it.” See Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001)); see also Flemming v. State, 949 S.W.2d 876,

880 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (noting that closing argument

is area where trial strategy is most evident, and an appellate court presented with

claim of ineffective assistance of counsel should review matters of trial strategy

only if counsel’s actions are without any plausible basis).

      Finally, the appellant appears to argue that he is entitled to a presumption

of unreasonableness due to the numerous errors and omissions. But the appellant

does not cite any authority to support his position. (App’nt Brf. 9-10); see TEX. R.

APP. P. 38.1(i). Moreover, this argument assumes that trial counsel erred. While a

number of errors may become harmful in their cumulative effect, non-errors

cannot become error cumulatively. Rodriguez v. State, 336 S.W.3d 294, 303 (Tex.

App.—San Antonio 2010, pet. ref’d) (citing Chamberlain v. State, 998 S.W.2d 230

(Tex. Crim. App. 1999)).




                                         12
      Therefore, the appellant failed to show that his trial counsel’s performance

fell below an objective standard of reasonableness under prevailing professional

norms. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (noting

that the right to effective assistance of counsel ensures the right to reasonably

effective assistance and “[d]oes not mean errorless or perfect counsel whose

competency of representation is to be judged by hindsight.”); Bone v. State, 77

S.W.3d 828, 833-37 (Tex. Crim. App. 2002) (reiterating Strickland’s requirement

that the record must reflect the errors and it is not a legal basis for finding counsel

deficient the fact merely because he could have provided a better defense). Thus,

the appellant’s sole point of error should be overruled.

             C.     The appellant failed to meet the prejudice prong of
                    Strickland because he failed to show that the result of
                    the trial would have been different had trial counsel
                    not made these alleged errors.
      Even if the record affirmatively demonstrated trial counsel’s deficiency, the

appellant has failed to show that, but for his trial counsel’s errors, the result of the

proceeding would have been different. See Strickland, 466 U.S. at 694; Lopez, 343

S.W.3d at 142; see also Woodford v. Visciotti, 537 U.S. 19, 22–23 (2002) (noting when

it is alleged that counsel performed deficiently at the punishment phase of trial,

defendant must prove that there is a reasonable probability that, but for counsel’s

errors, the sentencing jury would have reached a more favorable penalty-phase

verdict). Moreover, he has not offered or discussed any instances to show how

                                          13
that could be true. See Bone, 77 S.W.3d at 837 (noting Strickland requires proof of

prejudice); Valencia v. State, 891 S.W.2d 652, 664 (Tex. App.—Houston [1st Dist.]

1993), rev’d on other grounds, 946 S.W.2d 81 (Tex. Crim. App. 1997) (finding the

appellant did not prove ineffective when he alleged that the trial would have been

different but did not provide any specific examples to show how).

      Trial counsel’s performance was not a circumstance from which prejudice is

presumed. See Batiste v. State, 888 S.W.2d 9, 14-15 (Tex. Crim. App. 1994) (noting

that prejudice is presumed in some Sixth Amendment violations such as actual or

constructive denial of counsel altogether at a critical stage of the proceeding or an

actual conflict of interest). Here, as previously stated, trial counsel subjected the

State’s case to the adversarial process: he presented character letters for the court’s

consideration, cross-examined Prespentt developing doubts in her testimony, and

presented the appellant in the best light possible to argue for deferred adjudication

(2 RR 15-23, 25-40). See Burdine v. Johnson, 262 F.3d 336, 345 (5th Cir. 2001) (en

banc) (distinguishing between the total lack of counsel and ineffective assistance

of counsel; noting that prejudice is presumed “when, during a critical stage of a

trial, counsel is either (1) totally absent, or (2) present but prevented from

providing effective assistance”).

      The State’s case was strong. The appellant pled guilty to two separate

violent felony charges; the record showed that the appellant assaulted Prespentt


                                          14
when a protective order was in place forbidding him from any contact (1 CR 6; 2

CR 6-7). Prespentt testified in detail about the pain from the assault, and the

appellant’s abusive history towards her (2 RR 7-27). See (St. Ex. #2). She described

numerous instances of domestic violence through both emotional and physical

abuse. See (St. Ex. #2). And because the appellant violated the protective order and

the trial court’s order of no contact with Prespentt, the trial court was concerned

that the appellant could not follow his orders on probation (1 CR 12; 2 RR 50-51).

      Finally, four years is at the low end of the range of punishment of two to ten

years (2 RR 51). See Vargas v. State, 13-99-290-CR, 2000 WL 34410037, at *9 (Tex.

App.—Corpus Christi Aug. 31, 2000, no pet.) (mem. op., not designated for

publication) (finding a four year sentence was at the low end of the punishment

range when it could have gone up to ten, and thus it could not be said that the trial

counsel’s deficient performance affected the outcome). The sentence, viewed in

light of the family violence second offender statute, the appellant’s criminal

history, and the facts of this case, was not grossly disproportionate. See Strickland,

466 U.S. at 693. Therefore, the appellant has not shown that the outcome would

have been different had trial counsel performed differently. See Ex parte Rogers, 369

S.W.3d 858, 864 (Tex. Crim. App. 2012) (finding relief is only granted when, but

for trial counsel’s errors, the sentencing jury would have reached a more favorable

verdict).


                                         15
      Accordingly, the appellant has not shown how he was prejudiced. (App’nt

Brf. 9-10). See Thompson, 9 S.W.3d at 812 (requiring the appellant to show a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different in order to prove prejudice). Thus, trial

counsel was not ineffective and the appellant’s sole point of error should be

overruled.


                                 CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                   DEVON ANDERSON
                                                   District Attorney
                                                   Harris County, Texas


                                                   /S/ Katie Davis
                                                   KATIE DAVIS
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin Street, Suite 600
                                                   Houston, Texas 77002
                                                   Telephone (713) 755-5826
                                                   Fax Number (713) 755-5809
                                                   Davis_Katie@dao.hctx.net
                                                   State Bar Number: 24070242




                                        16
              CERTIFICATE OF SERVICE AND COMPLIANCE

      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 3,554 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:

Syngman Stevens, Jr.
200 HWY 90-A, Suite B
Richmond, TX 77469
281-344-9997
281-344-0105
sstevensattorney@yahoo.com




                                                  /S/ Katie Davis
                                                  KATIE DAVIS
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin Street, Suite 600
                                                  Houston, Texas 77002
                                                  Telephone (713) 755-5826
                                                  Fax Number (713) 755-5809
                                                  Davis_Katie@dao.hctx.net
                                                  State Bar Number: 24070242

Date: October 13, 2015




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