                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-07-00121-CR
         ______________________________


         JARED HEATH GAINES, Appellant

                          V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the Sixth Judicial District Court
                 Lamar County, Texas
                Trial Court No. 20988




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION

         Jared Heath Gaines pled guilty to murder, admitting that, after an evening of drinking beer

and whiskey with his brother Jeffery, Gaines stabbed his brother to death. Gaines' sole defensive

strategy was to seek a reduced sentence by claiming, during the punishment phase of trial, that he

acted under the influence of sudden passion arising out of an adequate cause. See TEX . PENAL CODE

ANN . § 19.02(a) (Vernon 2003). The jury did not agree with his claim, and Gaines was sentenced

to thirty years' imprisonment.

         Gaines' sole claim on appeal is that his trial counsel was ineffective because he failed to

object to the State's repeated references to Gaines' failure to say anything about sudden passion in

his interviews with investigators. Gaines argues that those references were improper comments

about his post-arrest silence in violation of his Fifth Amendment right to be free from compelled

self-incrimination—and that his trial counsel was ineffective in not objecting to them. But, since

Gaines chose not to exercise his right to remain silent post-arrest, we affirm the judgment of the trial

court.

         Jeffery's partially decomposed body was recovered from the crawl space under his parents'

mobile home after eyewitness Zabrina Bowers, Gaines' girlfriend, spoke with authorities. To

authorities, Bowers described the events she witnessed that evening. At the end of the evening of

drinking, Gaines and his brother engaged in a heated fight, in which the brother "whooped" Gaines.

After the fight, the brother called Bowers a "slut" and a "f__ing bitch and a whore" and threatened



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to force Bowers to give him oral sex after Gaines went to sleep. The brother then proceeded to his

parents' bedroom and "passed out." Having overheard the brother's words, Bowers became upset and

started crying. Then, according to Gaines, a sudden passion overcame him. After Bowers told

Gaines that the brother's words hurt her feelings, Gaines grabbed a steak knife, entered his parents'

bedroom where Jeffery was sleeping, and stabbed him to death.

       After Gaines was provided his Miranda1 warnings, he willingly talked with Lamar County

sheriff's investigator Joe David Tuttle. During the initial interview lasting approximately one and

one-half hours, Gaines talked with Tuttle concerning the events surrounding Jeffery's death, starting

by denying involvement but then providing much the same details as Bowers.

       During cross-examination of Gaines' father, the State elicited testimony that Gaines had never

mentioned sudden passion when discussing the crime during jailhouse visits. Later, while cross-

examining Gaines, the State referred to the fact that Gaines did not mention sudden passion during

custodial interviews in stating, "first time we heard this anger, uncontrollable anger, immediate

influence of sudden passion, was right before trial started." Gaines contends his counsel was

ineffective because he did not object to the prosecutor's comments and questions regarding Gaines'

post-arrest silence concerning the subject of sudden passion.

       Gaines bears the burden of proving, by a preponderance of the evidence, that counsel was

ineffective. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). Any allegation of



       1
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                                 3
ineffectiveness must be firmly founded in the record. 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). To

evaluate claims of ineffective assistance of counsel, we apply the two-pronged Strickland test handed

down by the United States Supreme Court. See Strickland v. Washington, 466 U.S. 668 (1984).

First, Gaines must show that counsel's performance fell below an objective standard of

reasonableness when considering prevailing professional norms. Id. at 687–88. Second, Gaines

must show that the deficient performance damaged his defense. Id. Failure to satisfy either prong

of the Strickland test is fatal to the claim. Jaubert v. State, 74 S.W.3d 1, 9 (Tex. Crim. App. 2002).

        We evaluate counsel's performance while taking into consideration the totality of

representation and the particular circumstances of this case. Thompson, 9 S.W.3d at 813; Ex parte

Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). There is a strong presumption that counsel's

conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689;

Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim App. 2000). Therefore, we will not use hindsight to

second guess counsel's trial strategy. Hall v. State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana

2005, pet. ref'd).

        Once an accused is advised of his or her Miranda rights, and invokes the right to remain

silent, the Fifth Amendment to the United States Constitution prevents the State from using that

silence to impeach him or her. Szmalec v. State, 927 S.W.2d 213, 216 (Tex. App.—Houston [14th

Dist.] 1996, pet. ref'd). The trial record indicates that, even after Gaines was given a Miranda



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warning, he freely spoke with investigators and did not invoke his right to remain silent.2 Thus, this

record does not reveal the claimed error of counsel.

       In addition to testifying on direct examination that he was angry and enraged at his brother,

Gaines opened the door to the State's line of questioning when, in an attempt to strengthen his

sudden passion defense, he testified that he told officers about the way his brother treated him and

the fight they had. At that point, the State was entitled to question "the veracity of his exculpatory

story presented at trial." Id. at 217–18 (citing Bell v. State, 867 S.W.2d 958, 962 (Tex. App.—Waco

1994, no pet.) (defendant opened door to impeachment on his post-arrest silence in attempting to

strengthen defense through questions about his post-arrest statements to police).

       The record does not reveal why trial counsel failed to object to the State's comments and

questions regarding post-arrest silence. Accordingly, counsel's failure to object could have been a

part of his trial strategy. See Goodspeed, 187 S.W.3d at 393–94. Several reasonable explanations

appear. Since Gaines did not invoke his right to remain silent, the State did not violate his Fifth

Amendment rights. Even if this right had been invoked, Gaines' post-arrest failure to mention

sudden passion to officers was admissible because he testified about statements he made to them in

his direct testimony for the purpose of establishing his exculpatory defense. Finally, the information

the State sought to establish—that Gaines had not mentioned sudden passion before trial—had



       2
         The fact that Gaines did not choose to remain silent distinguishes this case from Hall v.
State, 161 S.W.3d 142 (Tex. App.—Texarkana 2005, pet. ref'd), and Mendoza v. State, 959 S.W.2d
321, 323 (Tex. App.—Waco 1997, pet. ref'd).

                                                  5
already been established through the testimony of Gaines' father. See Dotson v. State, 146 S.W.3d

285 (Tex. App.—Fort Worth 2004, pet. ref'd) (State's questions to defendant for failure to mention

exculpatory defense during jailhouse conversations with nongovernmental entity did not violate

accused's right to remain silent). Counsel's actions fell within the range of reasonable professional

assistance.

        Because we determine that Gaines' counsel acted reasonably, there is no need to address the

second prong of the Strickland test which determines whether counsel's errors were so serious as to

deprive Gaines of a fair trial.

        We affirm the trial court's judgment.




                                                      Josh R. Morriss, III
                                                      Chief Justice

Date Submitted:         July 30, 2008
Date Decided:           July 31, 2008

Do Not Publish




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