Affirmed and Majority and Concurring Opinions filed July 12, 2018.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-17-00112-CR

                            JAMIE GREEN, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1444798

                           MAJORITY OPINION

      We consider two issues in this appeal from a conviction for indecency with a
child: (1) whether trial counsel was constitutionally ineffective for failing to develop
and present mitigating evidence, and (2) whether the trial court abused its discretion
by denying a motion for mistrial during the punishment phase of trial. Finding no
merit to either challenge, we overrule both issues and affirm the trial court’s
judgment.
                                   BACKGROUND

      The offense in this case stemmed from an accusation that appellant
inappropriately touched his nine-year-old niece. After a jury convicted appellant of
that offense, the trial proceeded to the punishment phase, which is the focus of both
issues in this appeal.

      The State called two witnesses during the punishment phase. The first witness
was a fingerprint analyst who testified about appellant’s criminal record. The
fingerprint analyst established that when appellant was a teenager, he was twice
adjudicated delinquent for committing aggravated sexual assault. The fingerprint
analyst further established that when appellant was an adult, he was convicted for
failing to register as a sex offender.

      The second witness was a victim in one of the extraneous sexual assaults. She
testified that appellant, a neighbor of hers, forced his way into her home and
demanded her car keys. She told appellant that she did not have any car keys because
she was epileptic and her license had been revoked. She then explained that appellant
became angry and raped her at knifepoint. Since the rape, she claimed that she is not
very trusting of others, and that she feels insecure when not in the presence of her
husband or one of her grown sons.

      The defense did not call any witnesses in mitigation, and the jury assessed
appellant’s punishment at the maximum term of twenty years’ imprisonment.

                 INEFFECTIVE ASSISTANCE OF COUNSEL

      Appellant was represented at trial by two different lawyers. His counsel of
record was Cynthia Cline, but because she suffered from a chronic ear and throat
infection, her role during the trial came to be very limited. Cline enlisted the help of



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a colleague, Tom Moran, who took over the primary responsibility of appellant’s
defense.

      After the trial was over, a new lawyer was appointed for purposes of appeal.
That lawyer filed a motion for new trial, alleging that appellant’s trial counsel had
been ineffective by not conducting a more thorough investigation and by not
presenting any mitigating evidence.

      A hearing was held to consider the merits of the motion. Cline did not appear
at that hearing, but she submitted a lengthy affidavit, in which she detailed her trial
strategy and the course of her representation. Cline explained that she reached out to
the outcry witness (appellant’s sister and the complainant’s mother), but the outcry
witness refused to provide information about other persons who may have been
witnesses of the alleged offense.

      Cline also said that she tried to contact appellant’s mother at appellant’s
request, but the phone number provided by appellant was incorrect. Cline explained
that when the correct phone number was later provided, appellant’s mother would
not cooperate: “She made it perfectly clear to me that she did not want to get between
her son and her granddaughter. . . . She told me not to call back.”

      Cline also described how she tried to hire an expert witness who was a
licensed psychologist and sex offender treatment provider, but the expert refused to
accept the case for the amount of compensation that was available to her. The expert
provided Cline with a list of other possible experts, but they also declined Cline’s
requests.

      Cline testified that she had a “rocky” relationship with appellant: “He often
would curse at me and insult me. At times he would simply refuse to talk to me.”
Cline continued:


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      Numerous times I asked Mr. Green for witnesses who could provide
      mitigating evidence. He refused to do so, saying he would not be
      convicted. Mr. Green specifically told me not to prepare witnesses for
      mitigation. He told me that if I did my job, there would not be a
      conviction. When I said, “But what if you lose,” he told me to get the
      fuck out of his face and started beating on the door of the interview
      room in the jail.

      After the guilt phase of trial had ended but before the punishment phase had
begun, Cline asked appellant if he wanted to take the stand and put on his own
mitigating evidence. Cline said that appellant refused. She then offered to move for
a continuance to get other witnesses for mitigation. But again, appellant refused.

      Cline’s investigator submitted an affidavit. He testified that when he reached
out to appellant’s mother, she was “standoffish,” although she indicated that a pastor
was willing to appear in court for appellant. The investigator said that he was given
two other names of potential defense witnesses, but he was never able to contact
those witnesses because their names were common and he did not have their
addresses or telephone numbers. Appellant indicated that the witnesses may have
been in jail, but the investigator testified that he searched the jail records and could
not find them.

      Moran was the only witness to provide live testimony at the hearing. He
testified that he became involved in the case when Cline asked that he join her on
her jail visits because appellant had previously been abusive towards her. Moran
accepted the case knowing that he would have no mitigation evidence to present at
trial. Moran testified that he would have preferred to have had a mitigation witness,
but the only potential witness known to him was appellant’s mother, and Moran did
not believe that she would be very effective because she had already expressed a
desire to not be involved in the case.



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      The defense produced medical records showing that appellant suffered from
depression when he was in prison and that he had also attempted suicide. In addition
to these records, the defense submitted several affidavits. Appellant’s mother
testified in her affidavit that she wanted to testify on behalf of appellant, but his
lawyer would not return her calls (controverting Cline’s affidavit testimony).
Appellant’s mother explained that, had she been allowed to testify, she would have
talked about how appellant was a “good kid” who was influenced by “much older
boys who were doing very bad things.” She would have also described how appellant
was a good man because he went to church, he supported his family financially, and
he helped his sister when she was sick.

      Appellant’s father provided similar affidavit testimony, saying that
appellant’s lawyers never contacted him. He said that he would have described
appellant’s difficult childhood—e.g., how appellant’s stepfather smoked crack, and
how appellant fell into the wrong crowd of older boys in the neighborhood. The
father also spoke in general terms about appellant’s character as an adult: “When he
got out of prison, he was doing so good. He was working and going to church.”

      Appellant’s pastor likewise testified that he was never contacted by
appellant’s lawyers. In his affidavit, the pastor said that he has known appellant since
appellant was a child. The pastor also opined that appellant was “a respectable young
man who was worthy of our trust”; that he was “courteous, polite, and helpful”; and
that he was also seen as “a model member of the church.”

      At the end of the hearing, the trial court opined that even though the
investigation was imperfect, it was still reasonable under the circumstances. The trial
court further explained that “the Court is not of the opinion that the result would
have changed by the jury at the punishment phase of the trial.” Accordingly, the
court denied the motion for new trial.

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      We review the trial court’s ruling on a motion for new trial for an abuse of
discretion. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004),
superseded in part on other grounds by Tex. R. App. P. 21.8(b); Frangias v. State,
413 S.W.3d 212, 218 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A trial court
abuses its discretion if it acts in an arbitrary or unreasonable manner or without
reference to any guiding rules or principles. See Charles, 146 S.W.3d at 208. When
deciding whether the trial court abused its discretion, we view the evidence in the
light most favorable to the trial court’s ruling and defer to its credibility
determinations. Id. Because we presume that the trial court implicitly made all
reasonable factual findings that could have been made in support of its ruling, we
will conclude that the trial court abused its discretion only if no reasonable view of
the record could support its ruling. Id.

      To prevail on his claim of ineffectiveness, appellant was required to show by
a preponderance of the evidence that his trial lawyers’ performance was deficient
and that the deficient performance was so prejudicial that it deprived him of a fair
trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

      Appellant argues that Cline and Moran were deficient because, as a result of
their inadequate investigation, they did not present any mitigating evidence during
the punishment phase of trial. Appellant’s argument largely focuses on three separate
claims: (1) his lawyers should have asked his mother, father, and pastor to testify;
(2) his lawyers should have requested funds for the appointment of an expert
witness; and (3) his lawyers should have offered into evidence his medical records,
which showed, among other things, that he struggled with depression and suicidal
thoughts.




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       For the sake of argument, we will assume without deciding that the
performance of appellant’s lawyers was deficient and proceed to an analysis of
prejudice.

       To establish prejudice, appellant had the burden of showing a reasonable
probability that, but for his lawyers’ deficient performance, the result of the
proceeding would have been different. Id. at 694. “The likelihood of a different result
must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112
(2011).

       Here, the trial court opined that the result of the proceeding would not have
changed, even if appellant’s lawyers had developed and presented mitigating
evidence. Under our standard of review, we must uphold the trial court’s ruling if it
has any reasonable support in the record. For two independent bases, we conclude
that it does.

       First, as a matter of law, a defendant cannot show that he was prejudiced when
he instructs his counsel not to offer any mitigating evidence. See Schriro v.
Landrigan, 550 U.S. 465, 475 (2007) (“The Court of Appeals first addressed the
State’s contention that Landrigan instructed his counsel not to offer any mitigating
evidence. If Landrigan issued such an instruction, counsel’s failure to investigate
further could not have been prejudicial under Strickland.”); Bazan v. State, 403
S.W.3d 8, 15 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). And here, Cline
testified that appellant specifically told her “not to prepare witnesses for mitigation.”
Cline further added that, after the guilt phase of trial, appellant refused her offer to
move for a continuance so that she might try to obtain witnesses in mitigation. We
must credit this testimony because it supports the trial court’s ruling.

       Second, as a matter of fact, the omitted mitigating evidence was not very
compelling. It merely established in the most general of terms that appellant fell into
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the wrong crowd as a teenager; that he became depressed while in prison; and that
since being released from prison, he had become a churchgoing man who supported
his family. Even if that evidence were credible, it contrasted starkly with the
emotional testimony of appellant’s previous rape victim, which Moran described as
“devastating to the defense.” The trial court could have reasonably determined that
the omitted evidence was not so compelling as to have had any effect on the jury’s
verdict. Cf. Ex parte Martinez, 195 S.W.3d 713, 730–31 (Tex. Crim. App. 2006)
(holding that omitted evidence that the defendant had been sexually abused as a child
was unlikely to have had any effect on the jury’s verdict, given the seriousness of
his crimes).

      In his brief, appellant proposes a rule that a court cannot “speculate” that
omitted mitigating evidence would not have led to a more favorable sentence, citing
this court’s decision in Milburn v. State, 15 S.W.3d 267 (Tex. App.—Houston [14th
Dist.] 2000, pet. ref’d). There is no such rule or holding in Milburn, and as
demonstrated by Martinez, a court can determine that mitigating evidence would not
have favorably influenced the jury even if it had been presented at trial. See
Martinez, 195 S.W.3d at 730–31.

      Even if we assumed that the performance of appellant’s lawyers was deficient,
the trial court could have reasonably determined that appellant did not carry his
burden of showing that he was prejudiced. We therefore conclude that the trial court
did not abuse its discretion by denying appellant’s motion for new trial.

                           MOTION FOR MISTRIAL

      Appellant’s next issue also arises out of the punishment phase of trial,
specifically during the testimony of the victim from the extraneous sexual assault.
After this witness described the facts of her sexual assault, the prosecutor asked her,
“Knowing that this is an additional case that you’re here for today”—referring to
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appellant’s most recent conviction for indecency with a child—“what do you think
is the appropriate punishment?” The witness answered, “Life.”

      Appellant promptly objected “to any answer on what this witness thinks is an
appropriate punishment.” The trial court sustained the objection and, at appellant’s
request, instructed the jury to disregard the witness’s answer. Appellant then moved
for a mistrial, which the trial court denied.

      We review a trial court’s ruling on a motion for mistrial for an abuse of
discretion. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). When
deciding whether the trial court abused its discretion, we examine the particular facts
of the case. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

      Ordinarily, a prompt instruction to disregard will cure any error associated
with an improper question and answer. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.
Crim. App. 2000). A mistrial is required only if the improper question and answer
are clearly prejudicial to the defendant and of such character as to suggest the
impossibility of withdrawing the impression produced on the minds of the jurors.
See Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000).

      Appellant does not identify how the improper question and answer were
incurable in this case, other than to say that the witness was “somewhat elderly when
she testified, making her . . . even more sympathetic as a witness.” Appellant does
not cite any authority for this proposition, and we are reluctant to accept that
proposition in light of Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003).

      In that analogous case, the son of a capital murder victim testified in response
to an improper question that he and his entire family unanimously agreed that the
defendant should be sentenced to death. Id. at 271. The trial court instructed the jury
to disregard the answer and denied a motion for mistrial. Id. The defendant was


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ultimately sentenced to death, and on automatic appeal, the Court of Criminal
Appeals held that the trial court did not abuse its discretion by denying the motion
for mistrial, even though the witness was also sympathetic. Id. at 274. In making that
decision, the Court referred to the “very substantial” evidence in support of the death
penalty, including the defendant’s violent past. Id. at 273. The Court also observed
that the jury did not likely place much weight on the witness’s answer because
“jurors understand that the victim’s family members will be emotional and therefore
less objective about what punishment should be given.” Id. at 274.

      Similarly, by the time of the improper question and answer in this case, the
jury had already heard aggravating evidence about appellant’s past, which included
two sexual assaults, as well as the current offense, which appellant committed
shortly after being released from jail for failing to register as a sex offender. From
that evidence, the jury could have reasonably determined that appellant was
incapable of reform and deserving of a strong sentence. Also, the jury could have
reasonably understood that the rape victim’s answer was more emotional than
objective, considering that her recommendation of life imprisonment was legally
impossible for being outside the statutory limit.

      Based on the foregoing, we cannot say that the improper question and answer
were incurable. Accordingly, we conclude that the trial court did not abuse its
discretion by denying the motion for mistrial.




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                                 CONCLUSION

      The trial court’s judgment is affirmed.




                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Chief Justice Frost and Justices Christopher and Jamison. (Frost,
C.J., concurring)
Publish — Tex. R. App. P. 47.2(b).




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