
DISSENTING OPINION
No. 04-96-00643-CR
William MITCHELL,
Appellant,
v.
The STATE of Texas,
Appellee.
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 94-CR-5398
Honorable Raymond Angelini, Judge Presiding
Opinion by: Tom Rickhoff, Justice
Dissenting opinion by: Sarah B. Duncan, Justice, joined by Justice Paul W. Green
Sitting:	Phil Hardberger, Chief Justice
		Tom Rickhoff, Justice
		Alma L. López, Justice
		Catherine Stone, Justice
		Paul W. Green, Justice
		Sarah B. Duncan, Justice
Delivered and Filed:	June 30, 2000
	Now, as on original submission, Mitchell is not entitled to a reversal of the judgment on the
ground of ineffective assistance of counsel because a "preponderance of the evidence" in the record
does not establish "'there is a reasonable probability that the result of the trial would have been
different absent the deficient conduct.'" Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App.
1995), cert. denied, 517 U.S. 1106 (1996) (quoting Washington v. State, 771 S.W.2d 537, 545 (Tex.
Crim. App.), cert. denied, 492 U.S. 912 (1989)). Now, as on original submission, a preponderance
of the evidence clearly establishes the absence of prejudice. As Chief Judge McCormick wrote for
a unanimous court:
	Appellant was charged with using a firearm during a robbery at a convenience store.
The victim of the robbery identified appellant from a photo spread the day after the
robbery.  She identified him at trial.  She also testified that during the robbery
appellant raised his shirt which revealed a gun tucked into the waistband of his pants.
The prosecution introduced into evidence a videotape from the convenience store
clearly showing appellant committing the robbery and raising his shirt.
Mitchell v. State, 989 S.W.2d 747, 747 (Tex. Crim. App. 1999). Because the majority errs in
"finding" prejudice on this record, I dissent.
							Sarah B. Duncan, Justice
Publish
