                                                                                       ACCEPTED
                                                                                  06-14-00104-CR
                                                                        SIXTH COURT OF APPEALS
                                                                             TEXARKANA, TEXAS
                                                                            2/11/2015 10:54:54 AM
                                                                                  DEBBIE AUTREY
                                                                                           CLERK

                        NO. 06-14-00104-CR

                                                                 FILED IN
                          IN THE TEXAS                    6th COURT OF APPEALS
                                                            TEXARKANA, TEXAS
                                                          2/11/2015 10:54:54 AM
                       COURT OF APPEALS
                                                               DEBBIE AUTREY
                              v.                                   Clerk
                           FOR THE

             SIXTH APPELLATE DISTRICT OF TEXAS


               CHARLES DOUGLAS MCCLAIN, III

                             Appellant,

                                 v.

                      THE STATE OF TEXAS

                              Appellee


              Appealed from the 115th District Court of
                       Upshur County, Texas
                      Trial Cause No. 16,545


                       APPELLEE’S REPLY


                                           Natalie A. Miller
                                           State Bar No. 24079007
                                           405 N. Titus
                                           Gilmer, TX 75644
                                           Telephone: 903-843-5513
                                           Fax: 903-843-3661

                                           ATTORNEY FOR APPELLEE
                                           STATE OF TEXAS
ORAL ARGUMENT IS NOT REQUESTED.
                       IDENTITY OF PARTIES AND COUNSEL

       Appellee certifies that the following is a complete list of all parties to the trial
court’s judgment and the names and addresses of their trial and appellate counsel.

Presiding Judge:                          The Honorable Lauren Parish
                                          District Judge
                                          115th Judicial District
                                          Gilmer, Texas 75644

Appellant:                                Charles Douglas McClain, III
                                          TDC #01931721
                                          Jordan Unit
                                          1992 Helton Road
                                          Pampa, TX 79065

Appellant’s Attorney:                     Brandon T. Winn
(at Trial)                                411 West Tyler Street
                                          Gilmer, TX 75644


Appellant’s Counsel:                      Tim Cone
(on Appeal)                               Attorney at Law
                                          P.O. Box 413
                                          Gilmer, TX 75644


Attorney for the State (at trial):        A. Camille Henson
                                          Assistant Criminal District Attorney
                                          405 N. Titus Street
                                          Gilmer, TX 75644

Attorney for the State:                   Natalie A. Miller
(on Appeal)                               Assistant Criminal District Attorney
                                          Upshur County
                                          405 N. Titus Street
                                          Gilmer, TX 75644




                                            ii
                                                TABLE OF CONTENTS


Identity of Parties and Counsel ........................................................................................ ii

Table of Contents .............................................................................................................. iii

Index of Authorities .......................................................................................................... iv

Statement of the Case ........................................................................................................ 1

Issues Presented ................................................................................................................. 1

POINT OF ERROR NUMBER ONE: The Appellant received ineffective assistance of
counsel at trial.
POINT OF ERROR NUMBER TWO: The trial court erred in admitting into evidence
the Appellant’s oral statements.
Statement of Facts ............................................................................................................. 1
Summary of the Arguments ............................................................................................. 1
Argument

I.        Appellant Received Effective Counsel at
          Trial……………………………………………………………………………..2-5
II.       Article 38.22 of the Texas Code of Criminal Procedure Does not Apply as
          Appellant was not in Custody…………………………………..……………...6-8

Conclusion .......................................................................................................................... 8
Prayer ................................................................................................................................. 9
Certificate of Service ......................................................................................................... 9
Certificate of Compliance………………………………………………………..………9




                                                                   iii
                           INDEX OF AUTHORITIES


United States Supreme Court Authority
McMann v. Richardson, 397 U.S. 759, 771 (1970)………………………………..……...2

Stansbury v. California, 511 U.S. 318 (1994)…………………………………………….6

Strickland v. Washington, 466 U.S. 668 (1984)…………………………………………..2

Texas Cases
Hart v. State, 314 S.W.3d 37 (Tex. App.—Texarkana 2010)…………………………..4-5

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)……………………………..2

Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011)…………………………2, 3, 4, 5

Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App. 2012)…………………………..3-4

Salinas v. State, 163 S.W.3d 734 (Tex. Crim. App. 2005)………………..………………5

State v. Saenz, 411 S.W.3d 488 (Tex. Crim. App. 2013)…………………………………6

State v. Scheffield, No. 03-12-00669-CR, 2014 Tex. App. LEXIS 13831 (Tex. App.—
Austin Dec. 30, 2014, no pet.) (mem. op., not designated for publication)……………….6

Wright v. State, 154 S.W.3d 235, 239 (Tex. App.—Texarkana 2005, pet. ref’d)……..….7


Texas Statutes

Tex. Code of Crim. Proc.

      Art. 38.22………………………………………………………………………..6, 8




                                        iv
                             STATEMENT OF THE CASE

       The State does not object to the Appellant’s statement of the case.

                                  ISSUES PRESENTED

Appellant raises the following points as issues in his brief:


   1. The Appellant received ineffective assistance of counsel at trial.

   2. The trial court erred by admitting into evidence the Appellant’s oral statements.


                                STATEMENT OF FACTS

       The State is generally satisfied with the Appellant’s statement of facts, but makes

the following additions. During the interview Appellant gave to Sergeant Walker, he was

advised of his rights when giving a statement to law enforcement. 3 R.R. 64. As well,

during the State’s direct examination of Sergeant Walker, there was no mention of a

polygraph test taken by the Appellant. Id.

       During the punishment phase of the trial, Appellant’s counsel elicited testimony

from Appellant regarding all types of punishment: probation, shock probation and

confinement in prison. 3 R. R. 109-110.

                          SUMMARY OF THE ARGUMENTS

   A. Point of Error One

       Appellant received effective counsel. Appellant suggests that his counsel was

ineffective due to the fact that he asked the trial court for probation when it was not an

admissible punishment. However, the record is silent as to why trial counsel made

                                              1
certain decisions at trial. Without explanation, the actions of Appellant’s trial counsel do

not rise to the level of warranting a reversal because of ineffectiveness.

     B. Point of Error Two

           Appellant was not in custody when he made incriminating statements to law

enforcement. Because Appellant voluntarily spoke with law enforcement and left after

the interview, additional safeguards required by Texas law did not apply. The State

properly elicited the admissions made by the Appellant when it called Sergeant Walker to

testify.

                             ARGUMENT AND AUTHORITIES

I.         Appellant Received Effective Counsel at Trial

           A. Standard of Review

           Appellant first argues that his counsel was ineffective. However, the Appellant’s

right to effective counsel does not mean “a right to errorless counsel, but rather to

objectively reasonable representation.” Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.

App. 2011) (citing McMann v. Richardson, 397 U.S. 759, 771 (1970). A claim of

ineffective assistance of counsel is analyzed under the test articulated in Strickland v.

Washington, 466 U.S. 668 (1984); see also Hernandez v. State, 726 S.W.2d 53 (Tex.

Crim. App. 1986). Under Strickland, Appellant must prove by a preponderance of the

evidence that (1) trial counsel’s representation was deficient and (2) that the deficient

performance was so egregious that it prejudiced his defense. Strickland, 466 U.S. at 687.

Nevertheless, an appellate court’s review of trial counsel’s performance is “highly

                                               2
deferential” and a strong presumption exists that counsel “rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment.”

Id. at 689-90. It is not enough that an “appellant show, with the benefit of hindsight, that

his counsel’s actions or omissions during trial were merely of questionable competence.”

Lopez v. State, 343 S.W.3d 137, 142-43 (Tex. Crim. App. 2011). Specifically, “counsel’s

deficiency must be affirmatively demonstrated in the trial record … when such direct

evidence is not available, [the Court] will assume that counsel had a strategy if any

reasonably sound strategic motivation can be imagined.” Lopez v. State, 343 S.W.3d at

143 (emphasis added). Although rare, a single, egregious error may indicate ineffective

assistance of counsel. Id. at 142. In the absence of such egregious error by trial counsel,

complaints of ineffective assistance of counsel are best addressed in an application for

writ of habeas corpus, as “on direct appeal, the record is usually inadequately developed

and cannot adequately reflect the failings of trial counsel for an appellate court to fairly

evaluate the merits of such a serious allegation.” Id. at 143.        One avenue that an

Appellant may use to supplement the record after trial is “through a hearing on a motion

for new trial.” Id.

       B. Trial Counsel’s Performance as not Egregious

       Where the record fails to explain why counsel acted as they did at trial, the record

does not support deficient representation by trial counsel. Menefield v. State, 363 S.W.3d

591, 593 (Tex. Crim. App.) For instance “trial counsel should ordinarily be afforded an

opportunity to explain his actions before being announced as ineffective.” Id. Notably,

                                             3
when “trial counsel is not given that opportunity, then the appellate court should not find

deficient performance unless the challenged conduct was so outrageous that no

competent attorney would have engaged in it.”           Id.    In reaching its decision, the

Menefield Court surmised that several reasons may explain why counsel failed to object.

Id. at 593. Nevertheless, as neither counsel for the State or Defense had opportunity to

contest the allegation, the lower court’s holding that “the record on direct appeal was

sufficient to find trial counsel ineffective” was reversible. Id. at 592.

       The case at bar compares with the case heard by the Menefield Court; defense

counsel was not afforded the opportunity to explain his actions at trial. The record is

void of any motion for new trial or any request for fact finding hearings submitted by

appellate counsel. It seems that if trial counsel’s representation was so ineffective as to

warrant it as ineffective, a motion for new trial should have been filed. Nevertheless, trial

counsel has never even had the opportunity to elaborate on his trial decisions. Likewise,

there is not an error contained within the record committed by Appellant’s counsel that is

so egregious that it renders his representation ineffective. See Lopez, 343 S.W.3d at 142.

       Next, Appellant mistakenly likens the holding of Hart v. State, to the case at bar.

See generally 314 S.W.3d 37 (Tex. App.—Texarkana 2010). While similarities certainly

exist between the instant case and Hart, a paramount difference sets the two apart—

recorded testimony by counsel and the defendant explaining their actions at trial. In

Hart, the defendant pled guilty based upon advice by his trial counsel that he could

receive probation if he did so. Id. at 41-42. As well, the defendant suffered from severe

                                               4
learning disabilities that were (1) not properly investigated by his counsel and (2)

impacted his ability to knowingly, intelligently, and voluntarily waive his right to plead

not guilty. Id. at 42. Ultimately, this honorable Court concluded that regardless of the

defendant’s mental status, he had relied on false information by his counsel. Id. at 44-45.

And while Appellant surmises that this happened in the instant case, there is no testimony

from the Appellant or his trial counsel to explain their actions at trial and why the

Appellant waived his right to jury. Rather, without such explanations from trial counsel

and the Appellant, it is speculation to assume that Appellant’s trial counsel misinformed

him of the punishment options.

       In large part, Appellant circumstantially suggests that trial counsel was ineffective

because Appellant asked the trial court to grant probation for his punishment. As well,

the record in this case contains no explanation of why trial counsel made certain

decisions, and “because the record is silent on counsel’s reasoning…[appellate

courts]…cannot adequately reflect upon the motives behind trial counsel’s actions.

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).            Appellant simply

questions, with the benefit of hindsight, the decisions made by trial counsel. Perhaps

asking Appellant about probation, was trial counsel’s way of suggesting that the trial

court should impose a light sentence. Nevertheless, in light of all of trial counsel’s

correct actions at trial, suggesting that the Appellant received probation or a short prison

sentence does not rise to the level of an error so egregious that his representation was

ineffective. See Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

                                             5
II.    Article 38.22 of the Texas Code of Criminal Procedure Does not Apply as
       Appellant was not in Custody

       According to Article 38.22, section 3(a) of the Texas Code of Criminal Procedure,

certain safeguards must be followed when a defendant chooses to participate in “custodial

interrogation.” However, those safeguards have no application to the case at bar, because

the Appellant was not in custody. To decide whether or not a defendant is in custody, a

reviewing court examines the facts surrounding the interview, “but the ultimate inquiry is

simply whether there [was] a formal arrest or restraint on freedom of movement of the

degree associated with a formal arrest.” State v. Scheffield, No. 03-12-00669-CR, 2014

Tex. App. LEXIS 13831, at *3 (Tex. App.—Austin Dec. 30, 2014, no pet.) (mem. op.,

not designated for publication) (citing Stansbury v. California, 511 U.S. 318, 322

(1994)). As well, a reviewing court examines whether “given those circumstances,

would a reasonable person have felt he or she was not at liberty to terminate the

interrogation and leave.” See Scheffield, 2014 Tex. App. LEXIS 13831, at *3 (citing

Thompson v. Keohane, 516 U.S. 99, 112 (1995). Furthermore, the Court of Criminal

Appeals has articulated four scenarios that constitute custody: “(1) when the suspect is

physically deprived of his freedom of action in any significant way, (2) when a law

enforcement officer tells the suspect that he cannot leave, (3) when law enforcement

officers create a situation that would lead a reasonable person to believe that his freedom

of movement has been significantly restricted, and (4) when there is probable cause to

arrest and law enforcement officers do not tell the suspect that he is free to leave.” State

v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013).
                                             6
       Likewise, the admissions admitted at trial that the Appellant complains about stem

from Appellant’s admissions made during a voluntary polygraph test. At trial, the State

called Sergeant Derrick Walker as a witness and elicited testimony solely about

Appellant’ admissions. “Statements made during a polygraph pretest interview, during

the polygraph examination itself, or during an interview after the examination, may be

admissible evidence, but the proper procedure for introducing such evidence before the

jury [or judge in this case] is to redact from such evidence all references to the polygraph

examination.” Wright v. State, 154 S.W.3d 235, 239 (Tex. App.—Texarkana 2005, pet.

ref’d). In effort to comply with the Wright Court, the State made no mention that the

Appellant had taken a polygraph test in an effort to avoid any prejudice.

       Prior to trial, counsel for Appellant received all discovery in possession of the

State. Contained within that discovery, was an offense report written by Investigator

Roxanne Warren. Warren indicated that the Appellant came to the police station for a

noncustodial interview on July 25, 2013 at 10:25 a.m. Warren’s interview with Appellant

was videotaped and provided to Appellant’s counsel. During Warren’s interview with

Appellant, Warren asked Appellant if he would like to take a polygraph test, to which the

Appellant agreed. Appellant was free to leave at this time, and Warren scheduled the

polygraph test with Sergeant Walker of the Texas Department of Public Service. On July

30, 2013, Appellant voluntarily arrived at the police department, was advised of his rights

and still chose to proceed with the polygraph examination.           Although Appellant’s

admissions to Sergeant Walker were incriminating, he was not arrested after the

                                             7
polygraph. Sergeant Walker videotaped and audio taped Appellant’s polygraph test.

During trial, the State asked Sergeant Walker about admissions Appellant had made to

him.

       In the instant case, Appellant’s second issue lacks merit. Appellant was not in

custody when he made incriminating statements to Sergeant Walker. As well, the State

properly avoided disclosing the fact that Appellant took and failed a polygraph test, and

merely elicited statements against the Appellant’s penal interest. Prior to trial, counsel

filed a motion to suppress statements made by the Appellant, but never asked the trial

court for a hearing nor raised the issue at trial. Article 38.22 of the Texas Code of

Criminal Procedure has no application to the admissions made by Appellant, as Appellant

was not in custody and never indicated—through testimony during motion a to

suppress—that he thought he was not free to leave.


                                     CONCLUSION

       Without an explanation of why trial counsel made certain decisions at trial, his

representation does not fall to the level of ineffective. Considering his client confessed to

the crime, Appellant’s decision to waive his right to trial by jury and ask the trial court

for a low sentence is not per se ineffective. In fact, there may be several reasons why

trial counsel thought this was within his client’s best interest. As well, because the

Appellant was not in custody at the time he made incriminating admissions to Sergeant

Walker, additional safeguards required by Texas law do not apply in the instant case.


                                             8
                                         PRAYER

       Wherefore, premises considered, the State prays that Appellant’s relief be denied

and that the case be affirmed in all things.



                                                   Respectfully Submitted,
                                                   Upshur Co. Assistant District Attorney
                                                   Natalie A. Miller
                                                   405 N. Titus
                                                   Gilmer, TX 75644
                                                   Tel: (903) 843-5513
                                                   Fax: (903) 843-3661


                                                   BY: /s/ Natalie A. Miller
                                                       Natalie A. Miller
                                                       SBOT: 24079007

                             CERTIFICATE OF SERVICE

      A true and correct copy of the foregoing document has been delivered to Tim
Cone on this the 11th day of February, 2015.



                                                          /s/ Natalie A. Miller
                                                          Natalie A. Miller

                              CERTIFICATE OF COMPLAINCE

       Appellee’s Reply Brief contains 2,609 words.

                                                          /s/ Natalie A. Miller
                                                          Natalie A. Miller

                                               9
