                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

 DARRELL BROWN,                                §
                                                               No. 08-12-00026-CR
                  Appellant,                   §
                                                                  Appeal from the
 v.                                            §
                                                                168th District Court
 THE STATE OF TEXAS,                           §
                                                             of El Paso County, Texas
                  Appellee.                    §
                                                                (TC#20110D00283)
                                                §

                                         OPINION

       Darrell Brown appeals his conviction for one count of manslaughter, TEX.PENAL CODE

ANN. § 19.04. The jury sentenced Brown to 20 years’ in prison and levied a $10,000 fine. On

appeal, Brown brings two claims for ineffective assistance of counsel during the sentencing

phase of his trial. In Issue One, Brown argues that his lawyer’s failure to present any witnesses

during sentencing rendered his assistance constitutionally ineffective. In Issue Two, Brown

contends that defense counsel was ineffective because he prevented Brown from testifying

during sentencing. For the following reasons, we affirm.

                                       BACKGROUND
                                        Factual History

       On November 6, 2010, a fight broke out following tensions between two groups of men

at the Golden Nugget, a bar located on Trowbridge Drive in El Paso. Appellant, who was
underage, and a group of friends entered the Golden Nugget carrying beers they had purchased

outside the bar. A woman at the bar then invited Appellant and one of his friends to give an

improvised rap music performance for Golden Nugget patrons. Shortly thereafter, a Hispanic

male who was part of a group of about four people approached Appellant, and the two

exchanged words. In an audio transcript of an interview given to police after the fight, Appellant

stated that the man shoved him and another member of that group hit him over the head with a

bottle and used a racial slur against Appellant, who is African-American. Appellant told police

that he used a bar stool to defend himself as a large brawl broke out inside the Golden Nugget,

moved into the bathroom, and spilled outside onto Trowbridge Drive.

       Several people chased Appellant outside and he ran towards his friend Joey Tellez’s

borrowed truck in the parking lot. Tony Martin, another member of the group, was already

inside Tellez’s truck and had started the engine when Appellant, who was intoxicated, sat in the

driver’s seat. Martin testified that Appellant “looked scared,” was “panicking,” and looked like

he was “in an adrenalin rush.” Joey had become separated from the group, and neither Appellant

nor Martin knew where he was. After a brief discussion, Appellant drove off in Tellez’s truck.

Appellant told police that when he came upon the same Hispanic man who began the fight

walking in the street, Martin told him to hit him with the truck, and Appellant complied.

Appellant did not stop to render aid. The victim was later identified as Fernando Vargas.

Vargas suffered from a severe brain injury from the accident and died of his injuries shortly after

being hit.

                                       Procedural History

       Appellant was charged with one count of murder.            During jury selection, one of

Appellant’s defense counsels, told the jury that he typically advised his clients not to take the



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stand. His statement to the jury is as follows:

         [Defense]:     You’ve guilt/innocence [sic] and then you got punishment.
                        The defendant can testify at one or both of those. But
                        typically I tell my defendants do not testify. Unless you
                        really have to, unless I think you really, really have to,
                        you’re an idiot for testifying.
                                 Sometimes the situation is created where you have
                        to take that stand. So I guess what I’m trying to get across
                        to you is this. I know you’re going to want to – or at least
                        maybe you’re going to want to – hold it against him a little
                        bit because everybody wants to know what’s going on. But
                        please don’t because he’s getting a lot of pressure from me.
                        Even though he might have the greatest thing in the world
                        to say. . . .

         During its case-in-chief, the prosecution presented eyewitness testimony, Appellant’s

confession to police, and several surveillance videos from the Golden Nugget itself and nearby

businesses that showed the truck hitting Vargas. Appellant’s defense attorneys cross-examined

the witnesses, including a Federal Bureau of Investigations technician and a video editor who

had enhanced and edited the various surveillance cameras’ footage into one montage. At the

close of the prosecution’s case, the defense moved for a directed verdict on the basis that

Appellant had killed Vargas in defense of third persons – namely, Tellez, who could not be

found after the bar fight. The trial court denied the motion, and the defense then called several

witnesses. The jury convicted Appellant of the lesser-included offense of manslaughter.

         Prior to sentencing, defense counsel mentioned on the record that he was attempting to

coordinate the trial court’s schedule with a witness who wished to testify at sentencing and was

coming in from out of town. However, the defense rested without calling any witnesses after the

prosecution’s case-in-chief at sentencing. Defense counsel made the following statement to the

court:

         Your Honor, we have a defendant over here who wishes to testify, but
         under advice of counsel we’re not going to put on anything at all. We rest.

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       The jury sentenced Appellant to twenty years’ in prison and assessed a $10,000 fine.

                                           DISCUSSION

       Appellant contends that his trial counsel rendered constitutionally ineffective assistance

during the punishment phase of his trial for two reasons. First, Appellant argues that his

lawyer’s decision not to put on any witnesses at punishment fell so far outside the scope of sound

professional judgment as to constitute constructive denial of counsel. Second, Appellant argues

that his lawyer rendered ineffective assistance when he refused to call Appellant to the stand in

spite of Appellant’s purported desire to testify.

                             Ineffective Assistance of Counsel Standard

       Both the United States and the Texas Constitutions guarantee an accused the due process

right to assistance of counsel. U.S. CONST. amend. VI; TEX.CONST. art. I, § 10; see also

TEX.CODE CRIM.PROC.ANN. art. 1.05 (West 2005).            Implicit in that right is the right to

reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 683-86, 104

S.Ct. 2052, 2062-64, 80 L.Ed.2d 674 (1984). To obtain reversal for ineffective assistance of

counsel, a defendant must show by a preponderance of the evidence that (1) “counsel’s

representation fell below an objective standard of reasonableness,” and (2) that the deficient

representation prejudiced the defendant, i.e. that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at

669, 104 S.Ct. at 2055-56.

       We begin each Strickland analysis strongly presuming that counsel was competent and

that his decisions “fell within the wide range of reasonable professional assistance.” Thompson

v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999); Strickland, 466 U.S. at 689, 104 S.Ct. at

2065 (establishing presumption that actions “might be considered sound trial strategy”). A

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defendant must affirmatively “prove, by a preponderance of the evidence, that there is, in fact, no

plausible professional reason for a specific act or omission” to overcome that presumption and

succeed on the first prong of Strickland. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App.

2002); see also Landers v. State, 110 S.W.3d 617, 622 (Tex.App--Houston [14th Dist.] 2003,

pet. ref’d)(noting that the sound trial strategy presumption “cannot be overcome absent evidence

in the record of the attorney’s reasons for his conduct”).       “An appellate court should be

especially hesitant to declare counsel ineffective based upon a single alleged miscalculation

during what amounts to otherwise satisfactory representation, especially when the record

provides no discernible explanation of the motivation behind counsel’s actions—whether those

actions were of strategic design or the result of negligent conduct.” Thompson, 9 S.W.3d at 814.

       Only rarely will a sufficiently developed record “permit a reviewing court to fairly

evaluate the merits of such a serious allegation.” Bone, 77 S.W.3d at 833 (“In the majority of

cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the

failings of trial counsel.”)[internal citation omitted]. Typically, in direct appeals, evidence of

ineffective assistance will be adduced at a motion for new trial hearing, although moving for a

new trial is not technically necessary to preserve error. See Freeman v. State, 125 S.W.3d 505,

506-07 (Tex.Crim.App. 2003)(ineffective assistance of counsel claim may be granted without

motion for new trial where “trial counsel’s ineffectiveness is so apparent from the

record”)[internal citations omitted]. Absent affirmative evidence of misconduct, we will not

infer ineffective assistance where the record is silent on facts, circumstances, or counsel’s

rationale unless the challenged conduct was “so outrageous that no competent attorney would

have engaged in it.”     Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005);

Thompson, 9 S.W.3d at 814. Failure to prove either of the Strickland prongs “defeats the



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ineffectiveness claim.” Thompson, 9 S.W.3d at 813.

                         Failure to Call Witnesses During Punishment Phase

        In Issue One, Appellant maintains that his lawyer’s refusal to call any defense witnesses

when at least one was apparently available was objectively unreasonable and led to him

receiving the maximum sentence for manslaughter. The State responds that failing to call

defense witnesses is not ineffective per se, and that in light of the record as a whole and prior

statements counsel made during voir dire about strategically advising clients not to testify,

Appellant cannot overcome the presumption that his lawyer competently made a strategic,

professionally sound decision.

        “It is the trial counsel’s prerogative, as a matter of trial strategy, to decide which

witnesses to call[.]” Weisinger v. State, 775 S.W.2d 424, 427 (Tex.App.--Houston [14th Dist.]

1989, pet. ref’d). “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.” Milburn v.

State, 973 S.W.2d 337, 344 (Tex.App.--Houston [14th Dist.] 1998, pet. granted)(“Milburn I”),

vacated on other grounds, 3 S.W.3d 918 (Tex.Crim.App. 1999)(“Milburn II”);1 see also Dotson

v. State, Nos. 14-98-00590-CR, 14-98-00591-CR, 1999 WL 1123037, *4 (Tex.App.--Houston

[14th Dist.] 1999, pet. ref’d)(not designated for publication)(same). However, “[i]t may not be

argued that a given course of conduct was within the realm of trial strategy unless and until the

trial attorney has conducted the necessary legal and factual investigation which would enable

1
  In Milburn II, the Court of Criminal Appeals vacated a decision by the Houston Court of Appeals, 973 S.W.2d 337
(Tex.App.--Houston [14th Dist.] 1998, pet. granted)(“Milburn I”) because the Houston Court of Appeals found
deficient performance by counsel for failing to find and investigate defense witnesses, but incorrectly held that
prejudice did not need to be demonstrated at sentencing. The Court of Criminal Appeals remanded the case for a
prejudice analysis, see Milburn v. State, 15 S.W.3d 267, 269 (Tex.App.--Houston [14th Dist.] 2000, pet.
ref’d)(“Milburn III”). That opinion re-incorporated the prior deficient performance holding it adopted in Milburn I.
See 15 S.W.3d at 269-70. To the extent that it was adopted by Milburn III, we may rely on Milburn I as persuasive
authority.

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him to make an informed rational decision.”           Ex parte Duffy, 607 S.W.2d 507, 526

(Tex.Crim.App. 1980). Thus, evidence that trial counsel did not conduct due diligence prior to

making his decision not to call a witness may go to ineffective assistance. Id. In the absence of

that evidence, we presume trial counsel’s decision not to present any mitigating evidence was

rational and strategic. See Ex parte Kunkle, 852 S.W.2d 499, 506 (Tex.Crim.App. 1993).

       Here, Appellant has not provided enough evidence to overcome the presumption that trial

counsel’s failure to call witnesses or otherwise present mitigating evidence was strategic.

Appellant argues that the Milburn cases support his argument that failure to call any witnesses

during the punishment phase constitutes ineffective assistance of counsel, since punishment is

“the time at which for many defendants the most important services of the entire proceeding can

be performed.” See Milburn, 15 S.W.3d at 269. However, in the Milburn cases, evidence

adduced at a hearing for new trial affirmatively established that the defendant’s attorney had

failed to perform due diligence investigations of potential defense witnesses before deciding not

to present any mitigating evidence. See id. at 269. In this case, Appellant never adduced any

evidence of ineffective assistance of counsel when he filed his first motion for a new trial in

“[t]he interest of justice,” nor did his new counsel avail himself of the opportunity to amend the

motion for new trial to include an ineffective assistance of counsel claim as provided by

TEX.R.APP.P. 21.4(b). Appellant further cannot direct our attention to any other evidence in the

trial record that would allow us to veer into counsel’s decision-making process and provide

insight as to his rationale. As such, we presume that counsel’s decision to not present any

mitigating witnesses at punishment fell within the bounds of trial strategy permitted by

Strickland. Appellant’s claim fails the first prong of the ineffective assistance of counsel test,

and we therefore need not address prejudice on this issue.



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       Issue One is overruled.

                     Failure to Call Defendant During Punishment Phase

       In Issue Two, Appellant argues that his trial counsel rendered ineffective assistance

because he refused to let Appellant testify during the punishment phase.

       A criminal defendant has the absolute right to testify in his own behalf. See Rock v.

Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 2707-08, 97 L.Ed.2d 37 (1987). As such, counsel

has a reciprocal duty to allow a criminal defendant to testify if he wishes after full consultation

about the possible consequences. See Johnson v. State, 169 S.W.3d 223, 235 (Tex.Crim.App.

2005); see also STANDARDS     FOR   CRIMINAL JUSTICE: PROSECUTION FUNCTION           AND   DEFENSE

FUNCTION § 4-5.2(a)(iv)(3d Ed. 1993)(setting out ABA’s suggested standards for defense

attorney professional conduct and performance). Where a defense attorney and not the trial court

has prevented a defendant from testifying on his own behalf, “Strickland . . . provides the basic

framework . . .” for analyzing error. Johnson, 169 S.W.3d at 232.

       Here, Appellant has not shown that his trial counsel actually prevented him from

testifying. His entire argument is premised on the following statement his lawyer made after the

prosecution rested its case at punishment:

       Your Honor, we have a defendant over here who wishes to testify, but
       under advice of counsel we’re not going to put on anything at all. We rest.

       The statement is ambiguous, and could be read either as a stray comment to the trial

judge that Appellant reluctantly acceded to counsel’s advice, or as a statement by counsel that he

would not permit Appellant to testify in spite of his wishes. We presume that counsel is

competent, Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, and thus, that his statements reflect

the fact that Appellant ultimately decided not to testify himself. Appellant may overcome this

presumption by a preponderance of the evidence, Bone, 77 S.W.3d at 836, if he presents proof

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that counsel refused to let him assert his right to testify. However, Appellant has offered no

other evidence beyond the “assertions in his brief on appeal . . . that he asserted his right to

testify and his attorney failed to protect it.”      Salinas v. State, 163 S.W.3d 734, 741

(Tex.Crim.App. 2005). That is not enough evidence to sustain an ineffective assistance of

counsel claim.

       Appellant did not provide any affirmative evidence that his lawyer refused to let him

testify. Further, he did not examine his trial counsel in connection with his motion for a new

trial, thereby failing to create a record and preventing us from according counsel an “opportunity

to explain [his] actions before being condemned as unprofessional and incompetent.” Bone, 77

S.W.3d at 836. As such, Appellant cannot overcome the presumption of his trial counsel’s

competence. We need not reach the second prong of the Strickland analysis on this issue.

       Issue Two is overruled.

                                        CONCLUSION

       Having overruled all of Brown’s issues, we affirm the trial court’s judgment.



January 15, 2014
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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