                                                                 ACCEPTED
                                                             01-14-00121-CR
                                                  FIRST COURT OF APPEALS
                                                          HOUSTON, TEXAS
                                                      12/15/2015 12:32:03 PM
     No. 01-14-00121-CR                                CHRISTOPHER PRINE
                                                                      CLERK


             In the
       Court of Appeals
            For the                         FILED IN
                                     1st COURT OF APPEALS
    First District of Texas              HOUSTON, TEXAS
          At Houston                12/15/2015 12:32:03 PM
                          CHRISTOPHER A. PRINE
                                             Clerk

          No. 1268863
   In the 178th District Court
     Of Harris County, Texas

    

       PAUL BRIONES
           Appellant
              V.
     THE STATE OF TEXAS
            Appellee
    
   STATE’S APPELLATE BRIEF
    

                   DEVON ANDERSON
                   District Attorney
                   Harris County, Texas

                   KIMBERLY APERAUCH STELTER
                   Assistant District Attorney
                   Harris County Criminal Justice Center
                   1201 Franklin, Suite 600
                   Houston, Texas 77002
                   Telephone: 713.274.5826
                   stelter_kimberly@dao.hctx.net
                   State Bar Number: 19141400

                   CONNIE SPENCE
                   MARITZA ANTU
                   Assistant District Attorneys
                   Harris County, Texas

ORAL ARGUMENT NOT REQUESTED
                 STATEMENT REGARDING ORAL ARGUMENT
      State believes that the matters raised by the appellant are well-settled,
and that the briefs in this case adequately apprise this Court of the issues and
the law. Therefore, the State does not request oral argument.

                  IDENTIFICATION OF THE PARTIES
      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a

complete list of the names of all interested parties is provided below.

      Counsel for the State:

            Devon Anderson  District Attorney of Harris County

            Kimberly Aperauch Stelter  Assistant District Attorney on
                appeal

            Connie Spence, Maritza Antu  Assistant District Attorneys at
                 trial

      Appellant and counsel:

            Paul Briones  Appellant

            Daucie Schindler  Counsel on appeal

            John Floyd, Christopher Carlson  Defense counsel at trial

      Trial Judge:

            Honorable David Mendoza  Judge Presiding




                                        i
                                            TABLE OF CONTENTS

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 ........................................................................ 5

REPLY TO APPELLANT’S FIRST, SECOND
AND THIRD ISSUES PRESENTED........................................................................ 5

         Standard of Review on Motion for New Trial

         Standard of Review on Ineffective Assistance of Counsel

         Defense Counsel’s Strategy was Based on Extensive
         Investigation and Preparation for Trial

                   1) Decision not to Call Multiple Witnesses for the Defense

                   2) Decision not to Impeach

                   3) Decision not to Call Other Witnesses to Present
                      Mitigation Testimony at Punishment

         Conclusion

PRAYER .................................................................................................................. 17

CERTIFICATE OF SERVICE ................................................................................ 18

CERTIFICATE OF COMPLIANCE ....................................................................... 19

                                                             ii
                                             INDEX OF AUTHORITIES
CASES

Bone v. State,
  77 S.W.3d 828 (Tex. Crim. App. 2002) ............................................................................ 8
Damian v. State,
  881 S.W.2d 102 (Tex. App.—
  Houston [1st Dist.] 1994, pet. ref'd) .............................................................................. 13
Davis v. State,
  276 S.W.3d 491 (Tex. App.–
  Waco 2008, pet. ref'd) ......................................................................................................... 13
Ex parte Ewing,
  570 S.W.2d 941 (Tex. Crim. App. 1978)....................................................................... 14
Ex Parte Imoudu,
  284 S.W.3d 886 (Tex. Crim. App. 2009).......................................................................... 7
Ex parte Varelas,
  45 S.W.3d 627 (Tex. Crim. App. 2001) ............................................................................ 8
Hale v. State,
 140 S.W.3d 381 (Tex. App.—
 Fort Worth 2004, pet. ref'd ............................................................................................... 10
Harris v. State,
 No. 01–88–00991–CR, 1990 WL 39468, at *4 (Tex. App.–
 Houston [1st Dist.] pet. ref'd) (not designated for publication)........................ 14
Messer v. State,
 757 S.W.2d 820 (Tex. App.—
 Houston [1st Dist.] 1988, pet. ref'd) ................................................................................. 7
Mitchell v. State,
 68 S.W.3d 640(Tex. Crim. App. 2002) ............................................................................. 7
Reyes v. State,
  849 S.W.2d 812 (Tex. Crim. App. 1993).......................................................................... 6
Richardson v. State,
  921 S.W.2d 359 (Tex. App. –
  Houston [1st Dist.]1996, no pet.) ...................................................................................... 7


                                                                 iii
Shanklin v. State,
  190 S.W.3d 154 (Tex. App.—
  Houston [1st Dist.] 2005, pet. dism’d) .......................................................................... 15
Sims v. State,
  807 S.W.2d 618 (Tex. App.–
  Dallas 1991, pet. ref'd) ........................................................................................................ 14
State v. Gonzalez,
  855 S.W.2d 692 (Tex. Crim. App. 1993).......................................................................... 6
Strickland v. Washington,
  466 U.S. 668 (1984).......................................................................................................... 7, 16
Thompson v. State,
  9 S.W.3d 808 (Tex. Crim. App. 1999) ............................................................................... 8
Weisinger v. State,
 775 S.W.2d 424 (Tex. App.—
 Houston [14th Dist.] 1989, pet. ref'd)........................................................................... 16
Williams v. State,
 301 S.W.3d 675 (Tex. Crim. App. 2009).......................................................................... 8


STATUTES

TEX. CODE CRIM. PROC. art. 57.02(h) (West 2010) .............................................................. 1




RULES

TEX. R. APP. P. 38.2(a)(1)(A) ....................................................................................................... i




                                                                  iv
TO THE HONORABLE COURT OF APPEALS:

                          STATEMENT OF THE CASE

      Appellant was charged by indictment with both indecency with a child

and aggravated sexual assault of a child (RR4 71-72). He entered a plea of

not guilty to both, and the two cases were tried together (CR 71-72). The

jury found him not guilty of aggravated sexual assault, but guilty of the

indecency charge, and assessed his punishment at 20 years in the

Institutional Division of the Texas Department of Criminal Justice (RR9 8,

RR10 190-191).      Appellant filed a motion for new trial, which, after a

hearing, was denied (RR17 4-16).       Appellant filed timely notice of appeal,

and the court certified his right to appeal (CR 67-68).

                      



                            STATEMENT OF FACTS

      Lisa1 was ten years old in the summer of 2004 (RR6 27). At this age

she and her older sister, Kim, spent a lot of time over at their Aunt Joanna’s

house (RR6 23-24, 32). Lisa liked go to Aunt Joanna’s as there were a lot of

things to do there (RR6 25). There were also cousins to play with. Joanna


1 In order to protect their privacy, the State will refer to the complainant by the
pseudonym “Lisa,” and her sister by the name “Kim.” See TEX. CODE CRIM. PROC. art.
57.03(a) (West 2014).
had three children of her own; Ashley, who was a few years older than Kim,

Johnathan, who was Lisa’s age, and Destinee, who was three years younger

than Lisa (RR6 28, 26). Appellant, Aunt Joanna’s husband and Lisa’s uncle by

marriage, was a police officer, but he wasn’t home very often and when he

was, he was usually sleeping due to his work schedule (RR6 30, 31). When

he was awake and playing with the kids, Lisa felt that she and Destinee were

his favorites (RR6 27, 34).

      One evening that summer, Lisa and Kim were sleeping over at their

Aunt Joanna’s house. That night they set up a bed on the living room floor

and watched a movie with Destinee (RR6 42, 44). Kim and Destinee both fell

asleep during the movie, but Lisa was still awake when appellant got home

late from work (RR6 45-46).

      Lisa was not supposed to be up that late, so she pretended to be asleep

when appellant came into the living room, turned off the TV, and adjusted a

blanket covering the three girls (RR6 50, 53). After moving about the house,

appellant came back over to Lisa’s side of the makeshift bed and laid down

(RR6 54-55). He removed the blanket from Lisa and pulled down her shorts

and underwear (RR6 58). Appellant then placed his hand on Lisa’s vagina

and moved his fingers (RR6 60). This made Lisa feel very uncomfortable, so

she started to stretch as if she were waking up (RR6 62). In response,

                                     2
appellant pulled Lisa’s shorts and panties back up, placed the blanket back

over her, and walked away to the kitchen, where he started making a

sandwich (RR6 63, 64).

      Not much later appellant came back and resumed where he had left

off, uncovering Lisa and pulling down her short and panties. This time,

however, he also put his mouth on Lisa’s vagina (RR6 66-67). Lisa once again

moved, turning her body toward her cousin, and again appellant covered her

up and left (RR6 69).

      Appellant returned to Lisa’s side yet again that evening, this time

sexually assaulting her by putting his mouth and hand on her vagina (RR6

72). Lisa again responded by turning on her side, away from appellant (RR6

75). Appellant covered Lisa up and then went to his bedroom (RR6 74). Lisa,

meanwhile, moved to sleep between her cousin and her sister (RR6 74).

      Appellant came out to the living room one more time that evening but,

perhaps thwarted by Lisa’s new sleeping position, just stood by the fireplace

and stared at Lisa before grabbing his sandwich and returning to his

bedroom (RR6 75). Lisa didn’t tell anyone what had happened that night, but

in the morning she packed up her belongings and told her aunt she wanted

to go home (RR6 77).



                                     3
      Lisa was scared and confused as to what had happened that evening,

and didn’t tell anybody until three years later, in the summer of 2007 (RR4

92, RR6 83). When she did tell, it was to her Aunt Katherine, and then she

only told her that appellant “touched me.” (RR4 149-150). She also made

her aunt promise not to tell her parents (RR4 94). Her aunt kept that

promise, but insisted that Lisa tell her parents (RR4 99).

      Lisa finally did so in January of 2008, with her aunt Katherine present

(RR4 110 RR5 83-84, 88, RR 6 91). She gave only the “bare minimum” in

details about that night, however, and begged her parents not to go to the

police (RR6 91-92).

      Lisa’s parents did take her to a psychologist at that time, but Lisa

refused to talk to her, as she felt she could not tell a complete stranger what

had happened (RR4 175-176, RR6 91). Lisa’s mother and father finally

acquiesced in not reporting appellant to the police, but they also made sure

that their children did not spend the night at appellant’s house ever again

(RR4 177, RR6 98-99).

      Then, in 2010, Lisa’s father, while picking up clothes in Lisa’s

bedroom, came across some papers where Lisa had written about the

incident with appellant and how it was still affecting her (RR4 186, RR6 95,

104). At the time Lisa was feeling very depressed and sad, and was

                                       4
considering harming herself (RR6 97). Lisa’s parent were alarmed by what

Lisa had written, and decided they needed to take some action, so they

finally reported the crime to the police (RR4 188, 193-194, RR5 125).

                      



                       SUMMARY OF THE ARGUMENT

      The trial court did not abuse it’s discretion in denying appellant’s

motion for new trial. The evidence developed at the motion for new trial

hearing supported the trial court’s findings that trial counsel rendered

effective assistance of counsel. In particular, the decision not to call certain

witnesses at the guilt/innocence and punishment stages of trial, as well as

the decision not to impeach the complaining witness with minor

inconsistences in her testimony from the previous trial, were legitimate

decisions based on sound trial strategy, and did not render trial counsel’s

representation ineffective.

                      

                  REPLY TO APPELLANT’S FIRST, SECOND
                     AND THIRD ISSUES PRESENTED

      Appellant raises three issues on appeal, all concerning the trial court’s

decision to deny his motion for new trial. Appellant contends that the trial


                                       5
court should have granted him a new trial on the basis that his trial counsel

was ineffective.   Appellant presents three reasons why he believes his

counsel was ineffective: 1) his decision not to call certain witnesses for the

defense, 2) his decision not to impeach the complaining witness with certain

prior inconsistent statements, and 3) his decision not to present additional

mitigating evidence at the punishment stage of trial.

      The trial court considered trial counsel’s testimony on each of these

three issues at the lengthy three day hearing on appellant’s motion for new

trial (RR14-RR16). At the conclusion of the hearing, the trial court made

specific findings of facts and conclusions of law that trial counsel’s decisions

were strategic ones that had a plausible basis, as set out in the record, and

that trial counsel rendered effective assistance of counsel (RR17 11). The

evidence supports the trial court’s ruling.

      Standard of Review on Motion for New Trial

      Ineffective assistance of counsel may be raised in a motion for new

trial. State v. Gonzalez, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993); Reyes v.

State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). Because the decision on a

motion for new trial rests within the sound discretion of the trial court, the

standard of review on appeal is whether the trial court abused its discretion.

In the absence of an abuse of discretion, appellate courts are not justified in

                                       6
reversing the judgment. Gonzalez, 855 S.W.2d at 696. Richardson v. State,

921 S.W.2d 359, 361 (Tex. App. –Houston [1st Dist.]1996, no pet.). In

considering a motion for new trial, the trial court possesses broad discretion

in assessing the credibility of witnesses and in weighing the evidence to

determine whether a different result would occur upon retrial. Messer v.

State, 757 S.W.2d 820, 827–828 (Tex. App.—Houston [1st Dist.] 1988, pet.

ref'd).

      Standard of Review on Ineffective Assistance of Counsel

      To show ineffective assistance of counsel, a defendant must

demonstrate both (1) that his counsel’s performance fell below an objective

standard of reasonableness and (2) that there is a reasonable probability

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

would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Ex

Parte Imoudu, 284 S.W.3d 886, 869 (Tex. Crim. App. 2009). A reasonable

probability is one sufficient to undermine confidence in the outcome of a

case. Strickland, 466 U.S. at 687; Mitchell v. State, 68 S.W.3d 640, 642 (Tex.

Crim. App. 2002). It is not enough for a defendant to show that the errors, if

any, had some conceivable effect on the outcome of the proceeding.

Strickland, 466 U.S. at 687; Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim.

App. 2001). Rather, this stringent burden requires that he point to objective

                                      7
facts in the record to support lack of confidence in the conviction, i.e. proof

of prejudice. Bone v. State, 77 S.W.3d 828, 837 (Tex. Crim. App. 2002).

Failure to make either one of these required showings defeats an

ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009) (“An appellant’s failure to satisfy one prong of the Strickland test

negates a court’s need to consider the other prong.”).

      In reviewing counsel’s performance, appellate courts should look at

the totality of the representation to determine the effectiveness of counsel,

indulging a strong presumption that the attorney’s performance falls within

the wide range of reasonable professional assistance or trial strategy.

Thompson v. State, 9 S.W.3d 808 at 813 (Tex. Crim. App. 1999). A claim of

ineffective assistance must be firmly supported in the record. Id.

      Defense Counsel’s Strategy was Based on Extensive
      Investigation and Preparation for Trial

      The trial court heard extensive testimony at the hearing on appellant’s

motion for new trial, all if it from appellant’s trial counsel, John Floyd.

Appellant had hired Floyd after the performance by his previous trial

attorney, Abraham Fisch, resulted in appellant’s conviction for both injury to




                                       8
a child and aggravated sexual assault (RR16-164, 215).2 Floyd testified at

the motion for new trial hearing regarding his trial preparation, his strategy

for what evidence to present, what cross-examination to conduct, and what

defensive theory he decided to pursue (RR14 –RR16).

       Floyd explained that he was a board certified criminal defense lawyer

with close to 20 years of criminal law experience (RR13 15-16). Floyd had

tried 40 to 50 trials, including several sexual crimes (RR13 16). Appellant

had been a client of his for approximately a year and a half by the time of

trial (RR13 17, 21). During that time, Floyd conducted extensive

investigation and preparation for appellant’s case, enlisting the assistance of

two other attorneys, a paralegal, and an investigative service (See State’s

MNT Exhibit No. 1, RR16 168).              The investigative firm hired by Floyd

conducted at least 23 audio interviews of potential witnesses. Among those

interviewed were appellant, Joanna Briones, Ashley Rodriguez, Vielka Castro

and her family, Christina Gonzales, Jonathan Briones, Destinee Briones,


2 The jury in this first trial assessed punishment at a 10 year probated sentence for the
injury to a child case and 7 years in the Institutional Division of the Texas Department of
Criminal Justice for the aggravated sexual assault charge (RR16-164). Fisch filed a motion
for new trial, which was granted on the basis that the jury received an exhibit which had
not been introduced into evidence (CR 21-24) With Floyd representing him, appellant
was actually acquitted of the aggravated sexual assault charges, but was sentenced to
twenty years on the indecency with a child case (RR- RR9 8, RR10 190-191). Presumably
unhappy with this result, appellant returned to his first attorney, Abraham Fisch, who
filed a motion for new trial on the basis of ineffective assistance of counsel (RR16 160).

                                            9
Katrina and Victor Pena, Kayla Darilek, the pastor of the church the family

attended, and the jury foreman from appellant’s previous trial (State’s MNT

Exhibit No. 1). That last interview proved quite useful, as Floyd was able to

determine what witnesses the prior jury had found to be unhelpful, or even

harmful to the defense (RR16 191, 228). After considering multiple

defensive theories, Floyd decided that the best way to proceed was to limit

presentation of evidence and focus on the fact that the State had not proven

its case beyond a reasonable doubt (RR16 191-192).

      Decision not to Call Multiple Witnesses for the Defense

      Appellant argues that his trial counsel was ineffective for failing to call

certain witnesses, particularly Joanna Briones, appellant’s wife, Ashley

Rodriguez, appellant’s step-daughter, and Johnathan and Destinee Briones,

appellant’s children.

      Contrary to appellant’s assertions, none of these individuals were

witnesses to the actual offense, and could not contradict Lisa as to anything

that happened the night in question, partly because nobody knew when that

night in question was. Hale v. State, 140 S.W.3d 381 (Tex. App.—Fort Worth

2004, pet. ref'd) (not ineffective assistance when potential witnesses had no

personal information concerning accusations). In addition, defense counsel

had learned that the jurors from the previous trial found appellant’s family

                                       10
members to be ineffectual and, because of the closeness of their relationship

with appellant, unbelievable witnesses (RR13 67). Most importantly, defense

counsel was concerned about “extraneous kinds of personal character issues

that I was afraid might be opened, no matter how well intentioned and well

coached the witnesses were” (RR13 68).

      Trial Court was legitimately concerned that if these witnesses testified,

their testimony could prove harmful (RR16-206). For example, Floyd was

aware that the State had in its file an offense report where Joanna Briones

called the police on appellant at a time very close to when the offense

occurred and that this offense did not show appellant in a positive light

(RR16 207). There was also evidence that Ashley Rodriguez had made an

outcry regarding appellant inappropriately touching her, and that Joanna

was aware of that allegation (RR16 208).

      Appellant also criticizes defense counsel for not calling Lisa’s treating

psychologist who could testify about Lisa’s drug use and poor relationship

with her father. Appellant, however, fails to mention that this witness was

retired and living outside the jurisdiction of the court (RR16 174-175). In

addition, defense counsel had talked to this witness; she was very hostile to

the defense, believed the sexual abuse had occurred, and would have



                                      11
indicated that Lisa’s behaviors were likely the result of this abuse (RR16

178-180).

      Defense counsel also gave legitimate strategic reasons for not calling

Officer Munez, the officer who took the initial report from Lisa’s parents, and

Dr. Piece, an expert hired to examine the medical records for evidence of

sexual abuse. Counsel explained that he avoided calling Munoz because the

officer clearly wanted to help the state, and was willing to say that any

inaccuracies in his initial report could have been due to his mistake in taking

down the information (RR13 198). Dr. Pierce also did not appear to be a

favorable witness, as he indicated to trial counsel that there was evidence in

Lisa’s medical records which would lead him to believe that sexual abuse had

occurred (RR113 132).

      In short, the trial court did not abuse it’s discretion in determining that

trial counsel had a legitimate trial strategy for not calling any witnesses at

the guilt/innocence stage of trial. Instead of presenting all these witnesses,

the defense decided the best trial strategy was to argue that the State did not

make its case.3 When in counsel's reasonable judgment, a potential witness



3 This strategy was apparent in trial counsel’s closing argument, where he explained to
the jury that “we chose to shut it down because the State didn’t make their case.” (RR8
25).

                                          12
may be as dangerous as he or she might be helpful, it is not ineffective

assistance of counsel not to call the witness to the stand. Damian v. State,

881 S.W.2d 102, 110 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd).

      Decision not to Impeach

      Appellant also contends that trial counsel was ineffective for failing to

challenge Lisa’s credibility.   Floyd explained that he extensively cross-

examined Lisa, but that she did not make any major contradictions to her

previous statements or testimony (RR16-194). Floyd and his staff had

reviewed the transcript from the previous trial and were ready to address

any inconsistences, but he did not feel it was effective to impeach Lisa with a

transcript from the previous trial for small matters which did not go to the

heart of the case (RR16 193-194). Instead, defense counsel was trying to

build a rapport with the jury and his own credibility (RR16 193). The trial

court, in denying appellant’ motion for new trial, found that this decision not

to impeach witnesses on minor discrepancies was due to trial strategy, and

that such strategy had a plausible basis in the record (RR17 13).

      The trial court ruled correctly on this issue. The decision not to

impeach, particularly on minor matters, can be part of a reasonable strategy.

See Davis v. State, 276 S.W.3d 491, 502 (Tex. App.–Waco 2008, pet. ref'd)

(recognizing counsel’s decision not to impeach witnesses may be “sound

                                      13
trial strategy.”) The fact that appellant was convicted (just was he was in the

first trial), does not mean that this strategy was deficient. See Ex parte

Ewing, 570 S.W.2d 941, 944 (Tex. Crim. App. 1978) (“The fact that another

attorney may have pursued a different tactical course of trial is insufficient

to support a finding of ineffective assistance of counsel.”). Sims v. State, 807

S.W.2d 618, 624 (Tex. App.–Dallas 1991, pet. ref'd) (“[W]e cannot say that

failure to attempt impeachment was not sound trial strategy.”); Harris v.

State, No. 01–88–00991–CR, 1990 WL 39468, at *4 (Tex. App.–Houston [1st

Dist.] Apr. 5, 1990, pet. ref'd) (not designated for publication) (holding that

failure to bring up inconsistent testimony and impeach witness may be

sound trial strategy, because attempting to impeach may have been “more

harmful” than beneficial to appellant). Davis v. State, 276 S.W.3d 491, 502

(Tex. App. – Waco, pet. ref’d) (finding that the decision not to impeach

witnesses on deals they made with the State sound trial strategy).

      Decision not to Call Other Witnesses to Present Mitigation
      Testimony at Punishment

      Finally, defense counsel presented very viable reasons for why he did

not call additional witnesses other than appellant’s sister, Oralia Schmidt, at

the punishment stage of trial. Defense counsel explained that he had access

to the State’s file, and was able to determine that the State was prepared to


                                      14
attack the credibility of several potential witnesses, most notably appellant’s

wife and stepdaughter (RR10 160). The State also had evidence of other

bad conduct that it was just waiting for a chance to introduce. Ms. Schmidt,

however, was not aware of most of this conduct, so the prosecutor was not

able to question her about it (RR10 161).

      For example, appellant suggests that defense counsel could have called

appellant’s previous employers, as he worked as a bailiff in several courts.

Defense counsel, however, explained that the letters of commendation

regarding appellant’s work history as a bailiff were invalidated by more

recent letters reprimanding appellant for his work history, leaving defense

counsel to believe that it was better to avoid delving into appellant’s work

performance in detail (RR16 196-197).

      As mentioned earlier, the decision whether to present witnesses is

largely a matter of trial strategy. Shanklin v. State, 190 S.W.3d 154, 164 (Tex.

App.—Houston [1st Dist.] 2005, pet. dism’d). “Moreover, an attorney’s

decision not to present particular witnesses at the punishment stage may be

a strategically sound decision if the attorney bases it on a determination that

the testimony of the witnesses may be harmful, rather than helpful, to the

defendant.” Id. (citing Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.—

Houston [14th Dist.] 1989, pet. ref’d)). The trial court correctly found that

                                      15
trial counsel made a strategic decision not to call more than one character

witnesses at the punishment stage of trial and was not ineffective (RR17 12-

13).4

        Conclusion

        In short, defense counsel established through his testimony at the

motion for new trial hearing that he thoroughly prepared for this trial. The

trial court found that each decision trial counsel made was a strategic one

calculated to help appellant’s case. Trial counsel’s trial strategy, which

resulted in appellant’s acquittal in the more serious offense with which was

charged, was to present minimal evidence, not antagonize the jury, and

prevent damaging testimony from coming in. The trial court did not abuse

its discretion in finding that these strategic decisions were reasonable and

that trial counsel rendered effective assistance of counsel. See Strickland,

466 U.S. at 689. Appellant’s three issues are without merit, and the

judgement should be affirmed.

                         




4 The trial court also found that appellant failed to establish that there was a reasonable
probability that, but for trial counsel’s alleged errors, the results of the proceedings
would have been different in either the guilt/innocence or punishment phases (RR17 15).
In other words, appellant failed to prove either prong of the Strickland ineffective
assistance of counsel test.
                                            16
                                  PRAYER

      The State respectfully requests that this Court affirm the judgment of

the trial court.



                                            DEVON ANDERSON
                                            District Attorney
                                            Harris County, Texas



                                            /s/Kimberly Aperauch Stelter

                                            KIMBERLY APERAUCH STELTER
                                            Assistant District Attorney
                                            Harris County, Texas
                                            1201 Franklin, Suite 600
                                            Houston, Texas 77002
                                            (713) 755-5826
                                            State Bar Number: 19141400
                                            stelter_kimberly@dao.hctx.net




                                    17
                         CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument is being

served by EFileTXCourts.Gov e-filer to the following email address


      Daucie Schindler
      Assistant Public Defender
      1201 Franklin, 13th Floor
      Houston, Texas 77002
      Daucie.Schindler@pdo.hctx.net




                                             /s/Kimberly Aperauch Stelter

                                             KIMBERLY APERAUCH STELTER
                                             Assistant District Attorney
                                             Harris County, Texas
                                             1201 Franklin, Suite 600
                                             Houston, Texas 77002
                                             (713) 274-5826
                                             State Bar Number: 19141400
                                             stelter_kimberly@dao.hctx.net




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                    CERTIFICATE OF COMPLIANCE


      The undersigned attorney certifies that this computer-generated

document has a word count of 4,374 words, based upon the representation

provided by the word processing program that was used to create the

document.




                                         /s/Kimberly Aperauch Stelter

                                         KIMBERLY APERAUCH STELTER
                                         Assistant District Attorney
                                         Harris County, Texas
                                         1201 Franklin, Suite 600
                                         Houston, Texas 77002-1923
                                         (713) 274-5826
                                         TBC No. 19141400
                                         stelter_kimberly@dao.hctx.net




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