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ORIGINAL            CAUSE NUMBER:    PD-0004-15



                    IN THE COURT OF CRIMINAL

                        APPEALS OF TEXAS



                     ROYCE WILLIAM TAWATER,                 WUR' ^ L«AL APPEALS
                                    Petitioner,
                                                                   MAR 16 2Q15
                              vs.


                      THE STATE OF TEXAS,                   Abe( ^ ^ ^
                                    Respondent.


           Seeking Review of the Sixth District Court
             of Appeals' Judgement and Opinion in
                   Cause No: 06-14-00075-CR.

                                                              FILED IN
               PETITION FOR DISCRETIONARY REVIEW               CRIMINAL APPEALS
                                                             MAR 20 2015

                                                        Abel Acosta, Clerk
                  Oral Argument is Requested




                                                   Royce W. Tawater,
                                                   Pro Se
                                                   TDCJ-CID #1950643
                                                   Beto Unit
                                                   1391 FM 3328
                                                   Tennessee       Colony, Texas
                                                                            75880




                                                            (CCA)
                                                               A
                                                            (~ A   <--'-l
                                                                   r




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                                 TABLE OF CONTENTS

                                                                            Page

   I.   IDENTITY OF PARTIES AND COUNSEL                                      ii

 III.   INDEX OF AUTHORITIES                                                 II
  IV.   STATEMENT REGARDING ORAL ARGUMENTS                                   1

   V.   STATEMENT OF THE CASE                                                1

  VI.   STATEMENT OF PROCEDURAL HISTORY                                      2

 VII.   GROUNDS FOR REVIEW                                                  2

             The court of appeals erred in determining that there was
             sufficient evidence to support the fact that Petitioner
             had actual care, custody and control of a firearm.

             The court of appeals erred in determining that trial
             counsel's strategy was so effective as to result in only
             one conviction in four charges
VIII.   ARGUMENT                                                            2

        UNSWORN DECLARATION                                                 5

        CERTIFICATE OF SERVICE                                              5

        APPENDIX

             (Petitioner has no extra copy of the Sixth Court of Appeals'
             Opinion and Judgement.)




                                          -l-
                                               II.

                           IDENTITIES OF PARTIES AND COUNSEL

ROYCE WILLIAM TAWATER                                          PETITIONER

DAVID COUCH                                                    TRIAL COUNSEL
     2815 Wesley St.; P.O. Box 324
     Greenville, TX 75403

KATHERINE FERGUSON                                             APPELLATE COUNSEL
     2900 Lee St., Ste. 102
     Greenville, TX 75403

STEPHEN B.    LILLEY                                           PROSECUTOR

HONORABLE RICHARD A.   BEACOM,   Jr.                           TRIAL JUDGE




                                               III.

                                       INDEX OF AUTHORITIES

                                                                                   Page
HUTCHINS v. STATE, 333S.W.3d 917 (Tex. App.-Texarkana 2011)                         3

NGUYEN v. STATE, 54 S.W.3d 49 (Tex. App. Texarkana 2001)                           3

JAMES v. STATE, 264 S.W. 3d 215 (Tex. App.-Houston [1st Dist] 2008)                3

BATES v. STATE, 155 S.W.3d 212 (Tex. App.-Dallas 2004)                             3

CLARK v. PROCUNIER, 755 F.2d 394 (5th Cir. 1985)                                   3

NEAL v. PUCKETT, 286 F.3d 230 (5th Cir.O                                           3

CANNON v. STATE, 252 S.W.3d 342 (Tex. Crim. App. 2008)                             4

THOMPSON v. STATE, 9 S.W.2d 504 (Tex. Crim. App. 1985)                             4



PENAL CODE 46.04(a)(1)




                                               -li
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS:

           COMES        NOW,     ROYCE       WILLIAM TAWATER, "Petitioner" pro se in the above-mentioned
cause        number        and files, pursuant to Tex. R. App. Proc, 68, this Petition For Dis
cretionary Review, and for such Petitioner would show this Court as follows:


                                                                   IV.

                                             STATEMENT REGARDING ORAL ARGUMENT

           This petition challanges the court of appeals' holding that there was sufficient
evidence           to     support the jury finding of guilt on the charqe of unlawful possession
of a firearm by a felon,                      and;     trial     counsel     was not   ineffective for failing to
object to the admission of a                         certified copy of a prior conviction. These types of
arguments               appear to be improper in light of prior decisions from this Court. These
are important issues of law because these types of arguments are frequently appearing
in     appellate           decisions          from    the      various     courts of appeal and the bench and bar
of     this     Court          need        clarification        from this Court concerning whether these types
of     arquments           are       appropriate.           Therefore,      this Court should qrant oral argument
so     that     counsel           for      both sides may more fully present their positions and answer
any questions this Court may have after preliminarily reviewing this case.


                                                                   V.

                                                      STATEMENT OF THE CASE

           Petitioner          was     charged       with    the offense of unlawful possession of a firearm
by     a felon.            (CR:       1)     Petitioner was also charged with the offenses of aqgravated
assault with a deadly weapon, (#29,310), deadly conduct discharge firearm, (#29,311),
and        aggravated          assault       with a deadly weapon, (#29,502)           The cases were tried tog
ether.         A jury was selected, seated and sworn and the cases were tried on Petition
er's plea of "Not Guilty."                      Subsequently, Petitioner was found guilty of the firearm
possession          in     Case        No:     29,503.       The    jury was unable to reach a decision on the
other       three        charges and a mistrial was directed.                   The jury then considered punish
ment       evidence        and sentenced              Petitioner         to twenty (20) years' confinement in the
TDCJ-CID, and imposed a fine of ten thousand dollars.
        After       the        trial       court found Petitioner to be indigent, appellate counsel was
appointed          to     prosecute          the     appeal.     On appeal, counsel claimed, inter alia, that
the     evidence was insufficient to prove Petitioner was guilty of unlawful possession
of     a    firearm        by a felon, and;              trial counsel was ineffective in failing to object
to the admission of a certified copy of conviction in Case No: 28,515.
       The        court of appeals opined that the testimony of Joe Vega and the Complainant
verifying           that they          saw      Petitioner            with a firearm; that Petitioner had the same
caliber of bullets in his pocket at the time of arrest; that                                            Petitioner had gunshot
residue        on    his        hands;        that        the two Vega brothers saw Petitioner throw something
in     an     area    where        a firearm was found, and; that Petitioner to the detective that

he had fired a rifle earlier that morning,                                    was    sufficient        to sustain a conviction
of     unlawful        possession         of         a     firearm       by a felon.             Further, the court of appeals
determined that trial counsel,                           by     not     objecting          to     the prior felony conviction,
had    a      reasonable          trial strategy in not doing so; that counsel's strategy was suc
cessful simply because the jury could not reach a verdict on the other three charges.


                                                                       VI.

                                              STATEMENT OF PROCEDURAL HISTORY

        Petitioner is unable to cite any part of the Clerk or Reporter's Record because,
even        though     asked       for,        appellate           counsel has failed to transmit a copy of those
records, and the Brief of Appellant, (in #29,310 & #29,311), to Petitioner.
        The       Sixth     Appellate           District of Texas at Texarkana issued its Memorandum Op
inion        and     Judqement         on December 10, 2014.                    Subsequently, Petitioner, pro se, req
uested an additional sixty                      (60)          days    within        which        to file a pro se petition for
discretionary review, and;requested leave                                 to        file    the     original   copy only of the
petition.            Both       motions       were        granted on           January 7, 2015; making the deadline to
file        the     petition       on     or        before      March 10, 2015.                 This petition is timely filed.
(No petition for a rehearing was submitted.)


                                                                       VII.

                                                          GROUNDS FOR REVIEW

        The       court     of     appeals erred in determining that there was sufficient evidence
to     support        the       fact     that        Petitioner had actual care, custody and control of the
firearm in question
        Further,          the     court        of        appeals      erred in determining that counsel's strategy
was so effective as to result in only one conviction in four charges.


                                                                      VIII.

                                                                     ARGUMENT

        The       court     of appeals held that "[They] were not required to determine whether
[they]        believe       that        the     evidence           at trial established guilt beyond a reasonable


                                                                      _3~_
doubt;       rather,          when        faced with conflicting evidence, [they] must presume that the
trier     of       fact       resolved           any such conflict in favor of the prosecution, and [they]
must     defer         to that resolution." HUTCHINGS v. STATE, 333 S.W.W3d 917, 919-20 (Tex..
App.-Texarkana 2011)                      The     court      qoes     on to further cite the fact that the penal
code requires a defendant to "possess a firearm." (Penal Code 46.04(a)(1); NGUYEN v.
STATE,       54       S.W.3d        49,     52        (Tex. App.-Texarkana 2001)           This is in direct contrast
to     the     First         District Court of Appeals, Houston, (JAMES v. STATE, 264 S.W.3d 215,
218-19 (Tex. App.-Houston [1st Dist.] 2008)) and the Fifth District Court of Appeals,
(BATES       v.       STATE,        155     S.W.3d 212, 216-17 (Tex. App.-Dallas, 2004))in that "If the
evidence,          viewed          in the light most favorable to the verdict, gives equal or nearly
equal     support            to     theories          of   innocence and guilt, the evidence is insufficient.
(See: CLARK v. PROCUNIER, 755 F.2d 394, 395 (5th Cir. 1985)) Here,                                    the     issue    is
whether the firearm was found "on the defendant" or was "in his exclusive possession."
Further,          whether          the evidence affirmatively linked Petitioner to the firearm found
in a public place.                  The Sixth Court of Appeals usurped the jury in that the appellate
court     delved           into      a witness'            testimony      who, admittedly, was high on an illegal
substance.            This        same witness testified at a subsequent proceeding that he had lied
on a sworn affidavit to police concerning the events in question.                                    The     court     of
appeals        "••«presume[d]               that       the    trier of fact resolved [this] conflict in favor
of the        prosecution,                and     Tthey]      must defer to that resolution." (HUTCHINS, supra
0919-20)          The      fact      is,        the    jury    never had this information in order to "resolve
[the] conflict in favor of the prosecution." The                                  court   of appeals erred by placing
themselves            in     the     jury       box     to determine the weight of the evidence, and to deem
that evidence to support a conviction for possession of a firearm.
        Addressinq            appellate          counsel's       second     point    of error, the court of appeals
applied       the       STRICKLAND Test; performance and prejudice.                        Counsel argued that trial
counsel        failed         to object           to the state proffering a certified copy of a Judgement
of Conviction                in    a prior felony; deficient performance.                   Counsel argues on appeal
that     without           authenticating              the document, trial counsel allowed the jury to more
severely          punish Petitioner; harm.                    In the court of appeals Opinion, they determined
that     the      Strickland Test failed because both.parts of the test were not satisfied.
Specifcally,            trial       counsel's           strateqy      for   not     focusing the jury's attention on
the     prior felony was a sound choice, and; since trial counsel's strategy was sound,
it resulted in only one conviction in four.                               In   assessing     deficient     performance,
courts       "must         determine        whether          there    is a gap between what counsel actually did
and    what       a     reasonable          attorney          would    have done under the circumstances."           NEAL
v.     PUCKETT        286 F.3d 230, 236 (5th Cir. en banc)                        In the instant case, a reasonable


                                                                    -3-
attorney        would     have defended          the not guilty plea by preventing the prior felony
from the         jury's    perusal       until the state actually authenticated the document they
presented; a document presented only through the state's "testimony."                         Petitioner
had a      right to subject the prosecutor's case in a meaningful adversarial testing."
CANNON     v.     STATE 252 S.W. 3d 342, 349 (Tex. Crim. App. 2008)               Without hearing about
an alleged         prior       felony,     the    jury   would have been left with a doubt concerning
the language of the statute that the state prove that a conviction occurred; an essen
tial element of the offense.                    In THOMPSON v. STATE, 9 S.W.3d 808, 817 (Tex. Crim.
App.     1999),       this Court noted that "while this Court has been hesitant to designate
any    error      as per se ineffective assistance as a matter of law, it's possible that
a single egregious error of ommission or commission by appellant's counsel constitut
es     ineffective        assistance       of    counsel."    (citing JACKSON v. STATE 766 S.W.2d 504,
508     (Tex.     Crim.       App.   1985)       To prove prejudice, Petitioner need only prove that
"there     is     a     reasonable       probability that, but for counsel's unprofessional erors,
the results of the proceeding would have been                     different."   Strickland,   @694ln the
instant case, prejudice became so likely that the prejudice aspect of the Strickland
Test is satisfied. (See: UNITED STATE v. CRONIC, 446, U.S. 648, 658-59 (1984)


WHEREFORE,        PREMESIS       CONSIDERED,         Petitioner   prays this Court   grant this Petition
For    Discretionary           Review,     order a       full briefing on the issues presented herein,
and    after      considering        the     merits, reverse the judgement of the court of appeals,
remand     this       cause     to   the     trial    court for a new trial, and grant such other and
further relief as Petitioner may show himself deserving, at law and in equity.


                                                                                Respectfully submitted,\


                                                                                Royce W. Tawacer,

                                                                                Pro Se




C.c. Tex. Attny. Gen

        file/rwt




                                                         _ 4_
                                        UNSWORN DECLARATION



      "I,     Royce   W.   Tawater,    TDCJ-CID    #195   0643, being presently incarcerated in
the   Beto Unit       of   the   TDCJ-CID,     declare under penalty of perjury that the above
and foregoing are both true and correct."


                           Executed on this the 9th day of March, 2015




                                                                      Royce W- Tawater




                                       CERTIFICATE OF SERVICE



      This     is   to further certify that I have mailed a true and correct copy of this
Petition     For    Discretionary     Review   to the Texas Attorney General, P.O. Box 12548,
Austin,      TX   78711-2548,    by   First    Class Mail, postage prepaid by placing same in
the   Beto Unit's       mail drop-box, designed for that purpose, on this the 9th day of
March, 2015.




                                                                      Royce W. Tawater

                                                                      TDCJ-CID 31950643

                                                                      Beto Unit

                                                                      1391 FM 3328

                                                                      Tennessee      Colony,     TX
                                                                                               75880



C.c. file/rwt




                                                  t? "
                        In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00075-CR




       ROYCE WILLIAM TAWATER, Appellant

                            V.


           THE STATE OF TEXAS, Appellee




         On Appeal from the 354th District Court
                   Hunt County, Texas
                  Trial Court No. 29,503




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

        Odis McCrary, a drug dealer and a long-time friend of Royce William Tawater,

successfully avoided being hit when Tawater shot at him multiple times in the vicinity of

McCrary's Hunt County house in mid-2013. In the aftermath of the shooting, McCrary initially

told police that the two had argued about some tennis shoes, but later admitted the argument was

about drugs and money.

        As a result of the incident, Tawater was charged and convicted for unlawful possession of

a firearm by a felon. See Tex. Penal Code Ann. § 46.04(a) (West 2011). On appeal, Tawater

argues, first, that the evidence was insufficient to prove, at the time of the event, Tawater's status

as a convicted felon or his possession of a firearm and, second, that his trial counsel was

constitutionally ineffective.1 We affirm the judgment of the trial court because (1) sufficient

evidence supports the findings that, at the time in question, Tawater was a convicted felon and

possessed a firearm and (2) ineffective assistance of counsel has not been established.

(I)     Sufficient Evidence Supports the Findings that, at the Time in Question, Tawater Was a
        Convicted Felon and Possessed a Firearm


        Tawater challenges the sufficiency of the evidence to support the jury findings that, at the

time of the events leading to the allegations, he was a convicted felon and possessed a firearm.

In reviewing the sufficiency of the evidence, we consider the evidence in the light most favorable

to the verdict to determine whether any rational trier of fact could have found the essential


'Tawater stood accused in four indictments; the other three charges were two allegations of aggravated assault with
a deadly weapon and one of deadly conduct. After the jury was unable to reach unanimous verdicts on those three
charges, mistrials were declared on them. On retrial of two of those charges, Tawater was convicted of one charge
of aggravated assault with a deadly weapon and one of deadly conduct. Appeals of those two convictions are
pending beforethis Court in cause numbers 06-14-00094-CR and 06-14-00095-CR.
elements of the crime beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex.

Crim. App. 2003). We must give deference to "the responsibility of the trier of fact to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "We are not required to determine whether

we believe that the evidence at trial established guilt beyond a reasonable doubt; rather, when

faced with conflicting evidence, we must presume that the trier of fact resolved any such conflict

in favor of the prosecution, and we must defer to that resolution." Hutchings v. State, 333

S.W.3d 917, 919-20 (Tex. App.—Texarkana 2011, pet. ref d) (citing Turro v. State, 867 S.W.2d

43, 47 (Tex. Crim. App. 1993).

       The sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). To prove unlawful possession of a firearm by a felon, the State was required to prove that

Tawater (1) possessed a firearm (2) "after conviction and before the fifth anniversary of [his]

release from confinement following conviction of the felony or [his] release from supervision

under community supervision, parole, or mandatory supervision, whichever date is later." TEX.

PENAL CODE Ann. § 46.04(a)(1). "[T]o support a conviction for possession of a firearm, the

State must show (1) that the accused exercised actual care, control, or custody of the firearm,

(2) that he was conscious of his connection with it, and (3) that he possessed the firearm

knowingly or intentionally." Nguyen v. State, 54 S.W.3d 49, 52 (Tex. App.—Texarkana 2001,
pet. ref d), overruled on other grounds by Fagan v. State, 362 S.W.3d 796, 800 (Tex. App.—

Texarkana 2012, pet. ref d).

        Tawater, McCrary's friend of several years, came by McCrary's home the morning of

July 1, 2013. McCrary reported that Tawater was in a bad mood. McCrary, who admitted to

being a dealer of illegal drugs, believed Tawater was under the influence of drugs. Tawater

showed McCrary a pistol, which Tawater said he was "trying to get rid of; McCrary took this as

an offer to sell the gun and asked how much Tawater wanted. Instead, Tawater said he would

keep the gun, which he "might need."

        Later that day, Tawater returned to McCrary's home, looking for one of the people that

lived with McCrary. McCrary said Tawater intended to fight this third person, but that he tried

to talk Tawater out of this confrontation.           This led to an argument between McCrary and

Tawater, who then pulled a pistol,2 the same gun Tawater had displayed earlier in the day.
Tawater fired at McCrary, who ran around the house. Tawater pursued him and fired more shots

at him. At some point, McCrary stopped in front of a house where some people asked if he was

all right. Then Tawater ran past McCrary, and McCrary saw that Tawater no longer had the gun.

Soon thereafter, police arrived on the scene.

        McCrary admitted that he had sold illegal drugs, that he had multiple convictions (some

for drug charges), and that he was under indictment for aggravated robbery. McCrary also felt

he was taking a risk by testifying at Tawater's trial.




2McCrary admitted he was "high on Xanax" during the altercation.
                                                       4
        Joe Vega testified that he saw McCrary and Tawater's argument outside his (Vega's)

home. Vega heard gunshots and came out to the porch where he saw Tawater, first, waving a

pistol and, then, throwing it over a fence. Vega's brother, Manuel, also witnessed part of the

argument and saw Tawater throw something over the fence.

        When police arrived, both Vega brothers indicated where they had seen Tawater throw

something and that it may have been a gun. Police eventually found a disassembled .22 caliber

revolver in the bushes where witnesses indicated. On his person, Tawater had a box with thirty-

eight .22 caliber rounds, and two other bullets loose in another pocket; he also wore an empty

shoulder holster. The spent rounds in the revolver, and at least two shell casings found in the

street where the argument had been, all showed to have been fired from the pistol police found in

the bushes. Officers were also hailed by a Hispanic man in the area who produced a spent bullet,

which he said had come through at least one of his walls and hit him in his home.                      This bullet

was fired from a .22 caliber weapon, but due to deformities and damage to the bullet, it could not

conclusively be said to have been fired from the revolver recovered at the scene.

        Tawater was arrested at the scene for possession of drug paraphernalia. In the few hours

after this, Detective Jamie Fuller swabbed Tawater's hands for gunshot residue. Tawater told

Fuller that, earlier in the morning, he had fired a .22 rifle, so he might have residue on his




Vincente Paulin, the man hit by the stray bullet, testified through an interpreter. He said he was in his home, heard
an explosion, and realized he was hurt and bleeding (photographs were introduced ofwounds to the side of his chest
and inside his elbow). He said he looked down and sawa piece of metal, which his brother-in-law said was a piece
of bullet. Paulin said he gave this bullet to police. However, the police who met with Paulin at the scene said they
saw him pull the bullet from his side.

                                                         5
hands.4 Fuller took the swabs about 7:00 p.m., and Tawater said he had fired this rifle "early"
that morning. The State, though, presented testimony from David Spence, a firearms expert for

the Southwestern Institute of Forensic Sciences, who said it was "unlikely" gunshot residue

would stay on a person's hands eight-to-nine hours after firing a weapon. Spence testified that

sufficient particles of the relevant chemicals were found on the palms and back of both of

Tawater's hands consistent with the presence of gunshot residue.

        While Tawater did not testify, in the recorded interview played by the State, he denied

having a gun during the confrontation with McCrary. Tawater stated that McCrary and others

had guns and chased him, because a drug dealer named "Big" had unfairly put "a hit" on

Tawater. Tawater stated that McCrary chased him on foot, but that two other men got in a gold

Chevrolet SUV and chased Tawater.


        In his defensive case, Tawater called one witness, Jason Cooke, who said he had been on

his brother's porch with McCrary and a few other people when Tawater was seen walking up the

street. According to Cooke, McCrary offered Cooke $50.00 to go "whup" Tawater or "try to lay

him out." Cooke declined this offer and went in the house. When Cooke looked outside, he said

Tawater was surrounded by McCrary and two other men. A short time later, while inside, Cooke

said he heard gunshots and saw McCrary chasing Tawater. Cooke said he never saw Tawater

with a gun. He also said he saw some men get in a gold Chevrolet Blazer and chase a running

Tawater. Cooke said that the police never contacted him as a witness and that his trial testimony

was the first time he had presented his view of events.

4Tawater's interview with Fuller was presented in a video-recorded exhibit that was played for thejury.
5Under cross-examination, Cooke told the State he was "Big J," but denied having put a hit on Tawater.
        Tawater offered no objection when the State introduced a judgment of conviction dated

January 9, 2013, for the offense of burglary of a building.                   See TEX. PENAL CODE ANN.

§ 30.02(a), (c)(1) (West 2011) (state jail felony).             Nowhere in cross-examining the State's

witnesses or presentation of his defense did Tawater challenge his status as a convicted felon.

Near the end of a recorded interview with Detective Fuller, Tawater admitted, "I'm a felon." In

closing arguments, Tawater's counsel said, "You know my client is a felon. Mr. Tawater is a

felon. The evidence is in —it's in the packet."

        We addressed a somewhat similar situation in Hutchings v. State, 333 S.W.3d 917 (Tex.

App.—Texarkana 2011, pet. ref d). In a trial before the court, Hutchings offered no objection to

a certified judgment and conviction; Hutchings also admitted in open court to being the person

convicted in said judgment.          Id. at 922. This was sufficient to prove Hutchings' status as a

felon. Id.; see also Thompson v. State, 563 S.W.2d 247, 251 (Tex. Crim. App. 1978) (where

State did not offer authenticated copies of judgment or indictment, but defendant made no

objection to district clerk and district attorney testifying to prior conviction, evidence "competent

and sufficient to prove the prior, final, noncapital felony conviction" used for punishment

enhancement).

        Here, Tawater affirmatively indicated he did not object to admission of the felony

judgment and did not object to the portion of his recorded statement wherein he acknowledged

being a felon. The evidence was sufficient to establish that Tawater was a convicted felon at the

time of the alleged possession of a firearm.



6The indictment alleged anoffense date of July 1, 2013, within five years of the conviction shown on the judgment.
                                                         7
        Likewise, there was sufficient evidence to show Tawater possessed a firearm. Joe Vega

and McCrary testified to seeing Tawater with a pistol. When arrested, Tawater wore an empty

shoulder holster and had several rounds of .22 ammunition in his pockets; a .22 pistol was found

in the area where the Vega brothers said they saw Tawater throw something.                          Tawater had

significant evidence of gunshot residue on his hands. Notwithstanding all this, he told Detective

Fuller he had shot a .22 rifle in the morning of the day of the events. As for evidence McCrary

had been the aggressor and Cooke's testimony he had not seen Tawater with a gun, the jury was

free to disbelieve that testimony. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App.

1994) ("The jury is the exclusive judge of the credibility of witnesses and of the weight to be

given their testimony."); Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)

("[Reconciliation of conflicts and contradictions in the evidence is within the exclusive province

of the jury.").

         Tawater points to discrepancies in the evidence that McCrary gave inconsistent

statements about the parties' argument and that he wrote letters to the State and defense attorney

saying Tawater had not discharged a firearm with intent to harm McCrary.7                               Tawater's
fingerprints were also not found on the pistol. These factors, however, do not render the

evidence insufficient to support the finding that Tawater possessed the pistol at the time of the

offense. To the extent there were conflicts in testimony or alternative theories, the jury was

responsible for resolving any conflicts or inconsistencies in testimony.

'Detective Fuller also testified to the history of the pistol found by police. It had previously been reported stolen
from Hopkins County; and, though McCrary denied ever owning the pistol, there was some possibility the suspect in
that theft had given the gun to McCrary. There was no testimony about when this theft happened or what evidence
supported the theory McCrary came into possession of the gun. None of that, however, undermines the evidence
that Tawater possessed the pistol at the time of the offense.
                                                           8
       Sufficient evidence supports both challenged jury findings.

(2)    Ineffective Assistance of Counsel Has Not Been Established

       Tawater claims his trial counsel was ineffective for failing to contest the use of Tawater's

prior conviction as evidence to establish his status as a felon. Tawater argues that the State, if

pressed on the matter, could not have shown that Tawater was the person previously convicted

and, thus, was unable to allow the use of the prior judgment as evidence against him. Instead,

trial counsel's response of "no objection" allowed use of the evidence that otherwise could have

been excluded.


       To prevail on a claim of ineffective assistance of counsel, an appellant must show he

received ineffective assistance and that he was prejudiced by such representation. See Strickland

v. Washington, 466 U.S. 668, 687 (1984). The record must affirmatively demonstrate ineffective

assistance of counsel; a claim cannot "be built on retrospective speculation," but must be firmly

rooted in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).

       First, Tawater must show that trial counsel's representation fell below an objective

standard of reasonableness. See Fox v. State, 175 S.W.3d 475, 485 (Tex. App.—Texarkana

2005, pet. ref d). We indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable, professional assistance and was motivated by sound trial strategy. See

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). "If counsel's reasons for his

conduct do not appear in the record and there is at least the possibility that the conduct could

have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an

ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim.
App. 2002).      Failure to satisfy either of the Strickland prongs is fatal to a claim of ineffective

assistance. Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006).

        While Tawater asserts that the State did not have evidence to prove that he was the

person convicted in the prior judgment, there is nothing to demonstrate that the State lacked such

evidence if pressed on the subject or that it could not have properly won a contest on the

admission of the prior conviction.

        There is also nothing to show Tawater's trial counsel's reasoning in lodging no objection

to the admission of the prior conviction. No motion for new trial was filed, nor is there any

indication Tawater took any steps to secure testimony from his trial attorney to document

counsel's trial strategies or thinking behind his decisions. In this case, Tawater stood trial for

four indictments, two of which were allegations of aggravated assault with a deadly weapon.

The State had also alleged a prior conviction for enhancement purposes.                     It is true that Tawater

was assessed the highest possible sentence for unlawful possession of a firearm by a felon with

an enhanced penalty range—twenty years' imprisonment and a fine of $10,000.00. However,



8The record on direct appeal is frequently insufficiently developed to support a claim of ineffective assistance of
counsel; the best way to make a sufficient record to supportsuch a claim is by a hearing on a motion for new trial or
a hearing on a petition for habeas corpus. Jackson, 877 S.W.2d at 772-73 (Baird, J., concurring). When facing a
silent record as to defense counsel's strategy, an appellate court will not speculate as to counsel's tactics or reasons
for taking or not taking certain actions. Id. at 771. Because the trial record is directed to the issues of
guilt/innocence and punishment (or in this case, punishment alone), an additional record focused specifically on the
conduct of counsel, such as a record of a hearing on a motion for new trial asserting ineffective assistance of
counsel, isgenerally needed. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 1994, pet. ref d).
Only when '"counsel's ineffectiveness is so apparent from the record'" will an appellant prevail on direct appeal
absent a hearing on a motion for new trial asserting an ineffective assistance of counsel claim. Freeman v. State,
125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003) (quoting Massaro v. United States, 538 U.S. 500, 508 (2003));
Kemp, 892S.W.2datll5.

9Tawater pled"true" to the enhancement allegation.
                                                          10
the jury could not reach verdicts on three of the indictments, two of which (the enhanced

aggravated assaults) would have exposed Tawater to first degree punishment ranges.

        Further, not objecting to the prior felony conviction could have been a reasonable trial

strategy.   Trial counsel developed, through cross-examination of the State's witnesses and

presentation of Cooke, the possibility that McCrary and others had been the aggressors and

Tawater the victim in the confrontation. Counsel developed the theory that Tawater may not

have been in possession of a gun, although this was in direct contradiction of witness testimony

and Tawater's being in possession of an empty holster and several rounds of ammunition. Based

on the record as a whole, we must presume counsel had a reasonable and viable trial strategy,

and he was successful, to a degree, as Tawater was convicted of only one offense in this trial,

where he stood charged with four.

        Tawater has failed to demonstrate that his trial counsel was ineffective.

        We affirm the trial court's judgment.



                                                Josh R. Morriss, III
                                                Chief Justice


Date Submitted:        October 29, 2014
Date Decided:          December 10,2014

Do Not Publish




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