                                                                    ACCEPTED
                                                                12-15-00022-CR
                                                   TWELFTH COURT OF APPEALS
                                                                 TYLER, TEXAS
                                                          7/10/2015 11:19:44 AM
                                                                  CATHY LUSK
                                                                         CLERK

      CAUSE NO. 12-15-00022-CR

                  IN THE                       FILED IN
                                        12th COURT OF APPEALS
                                             TYLER, TEXAS
 THE 12th DISTRICT COURT OF      APPEALS7/10/2015 11:19:44 AM
                                             CATHY S. LUSK
                                                 Clerk
                FOR THE

            STATE OF TEXAS


       DARRELL WAYNE BELL,

                         APPELLANT
                    V.

         THE STATE OF TEXAS,

                         APPELLEE


STATE’S REPLY TO APPELLANT’S BRIEF


         D. MATT BINGHAM
        Criminal District Attorney
          Smith County, Texas

           JACOB D. PUTMAN
    Assistant Criminal District Attorney
          Bar I.D. No. 24065929
         Smith County Courthouse
             100 N. Broadway
            Tyler, Texas 75702
            ph: (903) 590-1720
            fax: (979) 590-1719

    ORAL ARGUMENT NOT REQUESTED
                                            TABLE OF CONTENTS

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REPLY TO APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

COUNTERPOINT ONE: THE RECORD DOES NOT SUPPORT THAT
APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
TO REQUEST A LESSER-INCLUDED OFFENSE INSTRUCTION. . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                            ii
                                            INDEX OF AUTHORITIES

STATUTE/RULES                                                                                                       PAGE

TEX. PENAL CODE
§ 21.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       4

§ 21.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       4

§ 22.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      4

FEDERAL CASES                                                                                                       PAGE

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              5, 6, 8, 9

STATE CASES                                                                                                         PAGE

Alaniz v. State, 937 S.W.2d 593
(Tex.App. - San Antonio 1996, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Banda v. State, 890 S.W.2d 42
(Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              3, 5

Ex parte Thompson, 179 S.W.3d 549
(Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              3, 5

Ex parte Zepeda, 819 S.W.2d 874
(Tex.Crim.App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Goad v. State, 354 S.W.3d 443
(Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              3, 5

Hall v. State, 225 S.W.3d 524
(Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 5



                                                              iii
STATE CASES (cont.)                                                                                       PAGE

Hampton v. State, 109 S.W.3d 437
(Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    3

Hernandez v. State, 726 S.W.2d 53
(Tex.Crim.App.1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   6

Jackson v. State, 877 S.W.2d 768
(Tex. Crim.App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Kemp v. State, 892 S.W.2d 112
(Tex.App. - Houston [1st Dist.] 1994, pet. ref'd) . . . . . . . . . . . . . . . . . . . . .               7

McFarland v. State, 845 S.W.2d 824
(Tex.Crim.App.1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   6

Rice v. State, 333 S.W.3d 140
(Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    3

Rios v. State, 990 S.W.2d 382, 385
(Tex. App. - Amarillo 1999, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Smith v. State, 297 S.W.3d 260
(Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    5

Thompson v. State, 9 S.W.3d 808
(Tex.Crim.App.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   7




                                                        iv
                          CAUSE NO. 12-15-00022-CR

                                      IN THE

                   THE 12th DISTRICT COURT OF APPEALS

                                    FOR THE

                                STATE OF TEXAS


                           DARRELL WAYNE BELL,

                                              APPELLANT
                                         V.

                            THE STATE OF TEXAS,

                                              APPELLEE


                STATE’S REPLY TO APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS:

      Comes now the State of Texas, by and through the undersigned Assistant

Criminal District Attorney, and respectfully urges this Court to overrule

Appellant’s alleged error and affirm the judgment and sentence of the trial court in

this case.




                                         1
                               STATEMENT OF FACTS

       Appellant has accurately stated the essential nature of the evidence presented

at his trial. In the interest of judicial economy, any other facts not mentioned herein

that may be relevant to disposition of Appellant's point of error will be discussed in

the State's arguments in response to that point.

     REPLY TO APPELLANT’S POINT OF ERROR AND SUMMARY OF ARGUMENT

COUNTERPOINT ONE: THE RECORD DOES NOT SUPPORT THAT APPELLANT’S TRIAL
COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A LESSER-INCLUDED
OFFENSE INSTRUCTION.


A.     Summary of Argument

       Under his only point of error, Appellant argues his trial attorney was

ineffective for failing to request a lesser-included offense instruction. (Appellant’s

brief at 3). However, Appellant has failed to establish that he is entitled to relief

where the record does not support a lesser-included offense instruction. Even if the

record does support a lesser-included offense instruction, the record is insufficient to

establish that counsel was ineffective for not requesting the instruction.

B.     Lesser-Included Offense Instruction

       Determining whether a defendant is entitled to a lesser-included-offense

instruction requires a two-part analysis. Hall v. State, 225 S.W.3d 524, 528 (Tex.

Crim. App. 2007). The Court must first consider whether the offense contained in the

                                           2
requested instruction is a lesser-included offense of the charged offense. Id at 535.

If the requested instruction is a lesser-included offense, then the Court must decide

whether the admitted evidence supports the instruction. Rice v. State, 333 S.W.3d

140, 144 (Tex. Crim. App. 2011).

      The evidence supports an instruction on a lesser-included offense if it permits

a rational jury to find the defendant guilty only of the lesser-included offense. Id. at

145. "[T]here must be some evidence directly germane to the lesser-included offense

for the finder of fact to consider before an instruction on a lesser-included offense is

warranted." Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003).

“However, we may not consider ‘[t]he credibility of the evidence and whether it

conflicts with other evidence or is controverted.’” Goad v. State, 354 S.W.3d 443,

446-447(Tex. Crim. App. 2011). (citing Banda v. State, 890 S.W.2d 42, 60 (Tex.

Crim. App. 1994)). If a lesser-included instruction was not warranted by the evidence

admitted, then it cannot be ineffective assistance of counsel not to request the lesser-

included instruction. Ex parte Thompson, 179 S.W.3d 549, 559-560 (Tex. Crim. App.

2005).



1.    Aggravated Sexual Assault and Indecency with a Child are Lesser-
      Included Offenses



                                           3
        Appellant was indicted for Continuous Sexual Abuse of a Young Child under

§21.02 of the Texas Penal Code. (CR: 1). Continuous Sexual Abuse requires proof

of more than one specific act of sexual abuse over a period of more than 30 days. Id.

In this case, Appellant’s indictment for Continuous Sexual Abuse alleges several

specific instances of Indecency with a Child under §21.11 Texas Penal Code and

Aggravated Sexual Assault under §22.021 Texas Penal Code. Id. The State concedes

that both Indecency with a Child and Aggravated Sexual Assault of a Child are lesser-

included offenses of Continuous Sexual Abuse in this case under the first prong of

Hall.

2.      The Admitted Evidence Does Not Support a Lesser-Included Instruction

        Appellant describes several instances of testimony in the record that he

believes support a lesser-included instruction. (Appellant’s brief at 6-8). Each of these

instances are conflicts Appellant believes exist within the testimony of the victim,

L.K.. Id. However, Appellant has not identified any evidence or testimony in the

record that would permit a jury rationally to find a him guilty of only the lesser-

included offense.

        Rather, Appellant specifically argues, “These, among other inconsistencies and

questions of credibility, gave rise to a situation where the jury may have disbelieved

that anything occurred on two or more of the dates L.K, described....” (Appellant's

                                           4
brief at 8). Appellant’s assertion that a lesser-included offense instruction was

warranted by the evidence is based wholly upon the premise that the jury might have

found the victim credible as to some of the testimony and not credible as to other

parts of the testimony.

      Appellant cites no authorities allowing for the submission of a lesser-included

offense based upon a jury’s determination of credibility of a witness. On the contrary,

the Court of Criminal Appeals has repeatedly and expressly held that when

determining whether a lesser-included offense should be given, “[W]e may not

consider ‘[t]he credibility of the evidence and whether it conflicts with other evidence

or is controverted.’” Goad v. State, 354 S.W.3d 443, 447 (Tex. Crim. App. 2011),

Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994), Smith v. State, 297

S.W.3d 260, 275 (Tex. Crim. App. 2009).

      Appellant does not cite and the record does not contain any other evidence

directly germane to a lesser-included offense. Accordingly, a lesser-included

instruction was not warranted based on the evidence presented at trial for failure to

satisfy the second prong of Hall. Since the lesser-included instruction was not

warranted, Appellant’s trial counsel was not ineffective in failing to request the

instruction. Ex parte Thompson, 179 S.W.3d 549, 559-560 (Tex. Crim. App. 2005).

C.    The Strickland Standard on Direct Appeal

                                           5
      Traditionally, when confronted with an ineffective assistance of counsel claim

from either stage of a trial, the Court will apply the two-pronged analysis set forth by

the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex. Crim.

App.1986) (adopting Strickland as applicable standard under Texas Constitution).

Under the first prong of the Strickland test, Appellant in this case must satisfy his

burden to show that counsel’s performance was “deficient.” Strickland, 466 U.S. at

687, 104 S.Ct. 2052. “This requires showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. To be successful in this regard, Appellant “must show that

counsel’s representation fell below an objective standard of reasonableness.” Id. at

688. Under the second prong, Appellant must further show that the deficient

performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052.

      Thus, the appropriate standard for judging prejudice requires Appellant to

“show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id.

at 694, 104 S.Ct. 2052. Appellant must prove both prongs of Strickland by a

preponderance of the evidence in order to prevail. McFarland v. State, 845 S.W.2d

                                           6
824, 842 (Tex. Crim. App.1992). Furthermore, claims of ineffective assistance must

be firmly founded in the record. Rios v. State, 990 S.W.2d 382, 385 (Tex. App. -

Amarillo 1999, no pet.). The failure of Appellant to make either of the required

showings of deficient performance and sufficient prejudice defeats the claim of

ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.1999).

      Importantly, performance of counsel cannot be adequately examined based on

a trial court record. Kemp v. State, 892 S.W.2d 112, 115 (Tex.App. - Houston [1st

Dist.] 1994, pet. ref'd). A proper review should focus on a record specifically

targeting the conduct of trial counsel. Id. Such a record is best developed during a

hearing on application for writ of habeas corpus or motion for new trial. Id.; Jackson

v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994) (Baird, J., concurring). To

find that trial counsel was ineffective based on a record silent as to why trial counsel

conducted the trial as he did, would call for speculation, which is generally not

permitted. Id. Only in rare and egregious circumstances would a record on direct

appeal suffice to rebut the presumption of sound trial strategy. Kemp, 892 S.W.2d at

115; Ex parte Zepeda, 819 S.W.2d 874, 877 (Tex.Crim.App. 1991) (counsel’s failure

to request instruction on law of accomplice witness testimony constitutes ineffective

assistance of counsel according to Strickland standard); Alaniz v. State, 937 S.W.2d

593, 596 (Tex.App. - San Antonio 1996, no pet.) (record reflected counsel was

                                           7
ineffective for allowing venire person who had been struck to sit on the jury).

D.    Application of the Strickland Standard to the Facts of the Case

      Appellant alleges under a single point the ineffectiveness of his trial attorney

for failing to request a lesser-included offense instruction. (Appellant’s brief at 3).

If the Court finds that a lesser-included offense instruction was warranted by the

evidence admitted, the record is still insufficient to establish that Appellant’s trial

counsel was ineffective for failing to request the instruction where his thought

processes behind that decision are not apparent on the record.

      At the charge conference, Appellant’s counsel did not request a lesser-included

offense instruction. (RR 8: 129-132). Neither the trial court nor counsel for the State

ever mentioned including or excluding a lesser-included offense instruction. Id.

Given that the record is silent as to why Appellant’s trial counsel did not request a

lesser-included instruction, Appellant cannot meet his burden under Strickland. Any

attempt by this Court to determine Appellant’s trial counsel’s strategy or lack-there-of

would thus be pure speculation.

E.    Conclusion

      Based upon the record of this case it cannot be said that Appellant’s trial

attorney was ineffective for the reasons alleged under Appellant’s point of error. The

evidence presented at trial did not warrant a lesser-included offense instruction.

                                           8
Therefore, Appellant’s trial counsel was not ineffective for failing to request that

instruction.

      Even if the evidence at trial did warrant the lesser included instruction, the

record is insufficient to establish that the decision not to request the instruction was

not based upon a sound trial strategy. Consequently, Appellant has not met his burden

under Strickland and his point of error should be overruled.

                                       PRAYER

      WHEREFORE, for the reasons stated herein, the State of Texas prays that the

Court of Appeals overrule Appellant’s Point of Error and affirm the judgment of the

114th District Court, Smith County, Texas, in this case.

                                        Respectfully submitted,

                                        D. MATT BINGHAM
                                        Smith County Criminal District Attorney


                                        /s/ Jacob D. Putman
                                        Asst. Criminal District Attorney
                                        Bar I.D. No. 24065929
                                        100 N. Broadway, 4th Fl.
                                        Tyler, Texas 75702
                                        (903) 590-1720
                                        (903) 590-1719 (fax)




                                           9
                          CERTIFICATE OF COMPLIANCE

      The undersigned hereby certifies that the pertinent sections of the State’s Reply

Brief in the above numbered cause contain 1,725 words, an amount which complies

with Texas Rule of Appellate Procedure 9.4 (i)(3).


                                       /s/ Jacob D. Putman



                            CERTIFICATE OF SERVICE


      The undersigned hereby certifies that on this 10th day of July, 2015, the
following have been completed:

      (1) The original copy of the State’s Response to Appellant’s Brief in the above
      numbered cause has been sent via electronic filing to the Clerk of the Court of
      12th Court of Appeals.

      (2) A legible copy of the State’s Response to Appellant’s Brief in the above
      numbered cause has been sent has been sent via electronic filing to:

      Mr. Austin Reeve Jackson
      Attorney at Law
      112 East Line, Suite 310
      Tyler, Tx 75702


                                       /s/ Jacob D. Putman
                                       Asst. Criminal District Attorney
                                       Bar I.D. No. 24065929

                                          10
