Opinion issued January 16, 2020




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-18-00972-CR
                            ———————————
              LEGEORDEN MAYKEITHIS PLATER, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 179th District Court
                            Harris County, Texas
                        Trial Court Case No. 1578947


                          MEMORANDUM OPINION

      Legeorden Maykeithis Plater appeals his conviction for unlawful possession

of a firearm by a felon. See TEX. PENAL CODE § 46.04. He argues that his trial

counsel was ineffective for failing to present an opening argument and failing to

request a necessity instruction. We affirm.
                                   Background

      In the early morning hours of February 2, 2018, Houston police officers

attempted to conduct a traffic stop on a white van. Instead of pulling over, the van

accelerated and led police on a chase. The van eventually turned into the parking

lot of an apartment complex. While the van was still moving, the front doors

opened, and two people fled on foot. A police officer chased the driver on foot

through the complex and eventually apprehended Plater, whom the officer believed

was the driver. During the arrest, Plater told the officer that he had a gun in his

pocket.

      Plater was indicted for evading arrest in a motor vehicle and for unlawful

possession of a firearm by a felon. At trial, Plater testified that he was not the

driver but happened to be in the complex outside a friend’s apartment when the

chase ended. He admitted that he was a felon and that he had a gun in his pocket

when he was arrested.

      The jury found him not guilty of evading arrest and guilty of the firearm

charge. The trial court sentenced him to six years’ imprisonment. This appeal

followed.




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                        Ineffective Assistance of Counsel

      On appeal, Plater argues that his trial counsel was ineffective for failing to

make an opening statement and failing to request an instruction regarding the

defense of necessity.

A.    Standard of Review

      To prevail on a claim of ineffective assistance of counsel, the defendant

must show that (1) counsel’s performance was deficient and (2) a reasonable

probability exists that but for counsel’s deficient performance, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687, 694 (1984). The defendant bears the burden of proof on both issues, and

failure to make either showing by a preponderance of the evidence will defeat his

ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999).

      Under the first Strickland prong, any judicial review of whether counsel’s

performance was deficient must be highly deferential to trial counsel and avoid the

deleterious effects of hindsight. Id. We begin by presuming that trial counsel

performed within professional norms. Id. We do not assume that counsel lacked a

sound reason for making the choices he did; on the contrary, the defendant must

demonstrate that no plausible reason exists for a particular act or omission. Bone v.

State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); Toledo v. State, 519 S.W.3d


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273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). When the record is

silent as to trial counsel’s strategy, we will not conclude that appellant received

ineffective assistance unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” See Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial record contain

sufficient information to permit a reviewing court to fairly evaluate the merits of

such a serious allegation. See Bone, 77 S.W.3d at 833. In the majority of cases, the

appellant is unable to meet the first prong of the Strickland test because the record

is underdeveloped and does not adequately reflect the alleged failings of trial

counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).

      A sound trial strategy may be imperfectly executed, and the right to effective

assistance of counsel does not entitle a defendant to errorless or perfect counsel.

See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “It is not

sufficient that defendant show, with the benefit of hindsight, that his counsel’s

actions or omissions during trial were merely of questionable competence.” Mata,

226 S.W.3d at 430. Rather, to establish that the attorney’s acts or omissions were

outside the range of professionally competent assistance, appellant must show that

counsel’s errors were so serious that he was not functioning as counsel. See Patrick

v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).




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      Under the second Strickland prong, a defendant must show more than “that

the errors had some conceivable effect on the outcome of the proceeding.” Perez v.

State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.

at 693). The defendant must show that there is a reasonable probability that, but for

his attorney’s errors, the jury would have had a reasonable doubt about his guilt.

Id. (quoting Strickland, 466 U.S. at 695). A reasonable probability is probability

sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. “If

it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, that course should be followed.” Id. at 697.

B.    Failure to Make an Opening Statement

      Plater argues that his trial counsel rendered ineffective assistance by failing

to make an opening statement. Whether to deliver an opening statement is entirely

optional. Darkins v. State, 430 S.W.3d 559, 570 (Tex. App.—Houston [14th Dist.]

2014, pet. ref’d); see also Calderon v. State, 950 S.W.2d 121, 127 (Tex. App.—El

Paso 1997, no pet.) (“The option for defense counsel to deliver an opening

statement immediately after the State makes an opening statement is entirely

discretionary.”). “Few matters during a criminal trial could be more imbued with

strategic implications than the exercise of this option.” Darkins, 430 S.W.3d at 570

(quoting Calderon, 950 S.W.2d at 127). Plater did not file a motion for new trial

alleging ineffective assistance of counsel or otherwise develop a record of


                                          5
counsel’s reasons for his actions. On this record, counsel’s failure to make an

opening statement was not conduct “so outrageous that no competent attorney

would have engaged in it.” See Goodspeed, 187 S.W.3d at 392.

C.    Failure to Request Special Instruction on Necessity

      Plater asserts that his trial counsel was ineffective for failing to request a

jury instruction on the defense of necessity. Plater testified at trial that on the

morning in question, he was standing outside his friend’s apartment when he heard

a car crash. Moments later, two men ran by him with guns. He moved to the side,

took something from his pocket, and threw it under a car. He then dropped to his

knees because police officers were approaching. A police officer placed him in

handcuffs, and he notified the officer that he had a gun in his pocket. During his

testimony, Plater admitted that he had previously been convicted of a felony drug

charge.

      Necessity is a confession-and-avoidance defense that excuses an actor’s

conduct. See Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010). To be

entitled to the defense, the defendant must first admit to the conduct of the charged

offense. Id. at 405. The jury may then excuse that conduct if it determines that:

(1) the defendant reasonably believed that his conduct is immediately necessary to

avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly

outweighed the harm sought to be prevented by the law proscribing the conduct;


                                         6
and (3) no legislative purpose exists to exclude the defense. TEX. PENAL CODE

§ 9.22.

      Even if trial counsel had requested a necessity instruction, the trial court may

have refused the request on the ground that Plater presented no evidence of

imminent harm. Humaran v. State, 478 S.W.3d 887, 903 (Tex. App.—Houston

[14th Dist.] 2015, pet. ref’d). For an “imminent harm to occur, there must be an

emergency situation that requires a split-second decision without time to consider

the law.” Id. (citing Schier v. State, 60 S.W.3d 340, 343 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref’d)). Plater suggests that he needed to possess the gun

based on a fear of imminent harm. He argues that he proved imminent harm when

he testified that he saw two men with guns running through the apartment complex

pursued by police officers. But Plater possessed a gun before witnessing the chase,

and there is no evidence that he was confronted with the type of harm requiring

avoidance by a split-second decision.* Without such evidence, the jury would have

no basis for excusing Plater’s conduct as immediately necessary. Plater did not

meet his burden to prove that his counsel’s failure to request a jury instruction on

necessity fell below an objective standard of reasonableness. See Thompson,

9 S.W.3d at 812. We overrule his ineffective assistance of counsel issue.



*
      Plater was the only defense witness, and the State’s theory was that Plater drove
      the van in the police chase.
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                                   Conclusion

      We affirm the judgment of the trial court.




                                               Peter Kelly
                                               Justice

Panel consists of Justices Keyes, Lloyd, and Kelly.

Do not publish. TEX. R. APP. P. 47.2(b).




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