                                                                                ACCEPTED
                                                                           07-14-00401-CR
                                                              SEVENTH COURT OF APPEALS
                                                                        AMARILLO, TEXAS
                                                                      7/31/2015 3:52:46 PM
                                                                          Vivian Long, Clerk


                        NO. 07-14-00401-CR
                                                 STATE REQUESTS
                                                 ORAL ARGUMENT
                                                         FILED IN
                                                  7th COURT OF APPEALS
                                               ONLYAMARILLO,
                                                      IF APPELLANT
                                                                TEXAS
                                             REQUESTS    ARGUMENT
                                                  7/31/2015 3:52:46 PM
                                                       VIVIAN LONG
                             IN THE                       CLERK


                       COURT OF APPEALS

                            FOR THE

             SEVENTH JUDICIAL DISTRICT OF TEXAS

                        AMARILLO, TEXAS
******************************************************************
                    VICTOR MANUEL PENSADO,
                             Appellant,

                               VS.

                      THE STATE OF TEXAS,
                             Appellee.
******************************************************************
           ON APPEAL FROM THE 181ST DISTRICT COURT
                        CAUSE NO. 67,365-B
                     POTTER COUNTY, TEXAS
             HONORABLE JOHN B. BOARD, PRESIDING
******************************************************************
                          STATE’S BRIEF
******************************************************************
                              RANDALL SIMS, DISTRICT ATTORNEY
                              KATHERINE L. LEVY, SBN 12266480
                              Assistant District Attorney
                              501 S. Fillmore, Suite 5A
                              Amarillo, Texas 79101
                              (806) 379-2325; (806) 379-2823 fax
                              kathylevy@co.potter.tx.us

                              ATTORNEYS       FOR     THE      STATE
                          TABLE OF CONTENTS

                                                          PAGE


TABLE OF CONTENTS………………………………………………………..…i

LIST OF AUTHORITIES………………………………………………………....ii

THE CASE IN BRIEF…………………………………………………………...…1

STATEMENT OF THE CASE…………………………………………………….2

ISSUE PRESENTED……...……………………….………………….…………...2

RESPONSIVE POINT ONE (TO APPELLANT’S “ISSUE ONE”):

    Appellant received effective assistance of counsel.

STATEMENT OF FACTS…………………………………………………...…2-13

SUMMARY OF THE ARGUMENT………………………………………….13-14

ARGUMENT………………………………………………………………….14-32

CONCLUSION………………………………………………………………..32-33

PRAYER……………………………………………………………………….…34

CERTIFICATE OF SERVICE……………………………………………………34

CERTIFICATE OF COMPLIANCE……………………………………………...35




                                       i
                         LIST OF AUTHORITIES

                                                                       PAGE
CASE LAW
Bearnth v. State, 361S.W.3d 135, 145 (Tex.App.—Houston [1st Dist.] 2011, pet.
ref’d)…………………………………………………………………...………….19

Bone v. State, 77 S.W.3d 828, 833, 836 (Tex.Crim.App. 2002)………....27, 31-32

Carranza v. State, 960 S.W.2d 76, 79 (Tex.Crim.App. 1998)…………………..19

Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App. 1993)……………...16

Ex parte Woods, 176 S.W.3d 224, 228 (Tex.Crim.App. 2005)………………….31

Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)…………………….17

Gardner v. State, 306 S.W.3d 274, 305 (Tex.Crim.App. 2009)…………………18

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005)…17-18, 27, 33

Gonzalez v. State, 376 S.W.3d 141, 142-43 (Tex.App.—Tyler 2012, pet.
ref’d)…………………………………………………………………………...23-24

Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986)…………………15

Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999)………………16

Hendrickson v. Swyers, 9 S.W.3d 298, 300 (Tex.App.—San Antonio 1999, no
pet.)…………………………………………………………………………….….23

Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998)………………….28

Matthews v. State, 830 S.W.2d 342, 346 (Tex.App.—Houston [14th Dist.] 1992,
no pet.)…………………………………………………………………………….23

Mejia v. State, 681 S.W.2d 88, 90 (Tex.App.—Houston [14th Dist.] 1984, pet.
ref’d)………………………………………………………………………………23

Menefield v. State, 363 S.W.3d 591, 593 (Tex.Crim.App. 2012)……………….17
                                      ii
Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002)…………………..17

Robinson v. State, 16 S.W.3d 808, 809-13 (Tex.Crim.App. 2000)……………..20

Rodriguez v. State, 292 S.W.3d 187, 190 (Tex.App.—Amarillo 2009, no pet.)..31

Rozell v. State, 176 S.W.3d 228, 230 (Tex.Crim.App. 2005)……………………19

Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003)………………...32

Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005)…………………..17

State v. Moore, 225 S.W.3d 556, 570 (Tex.Crim.App. 2007)…………………..19

State v. Zalman, 400 S.W.3d 590, 594 (Tex.Crim.App. 2013)……………….…18

Stokes v. State, 277 S.W.3d 20, 21 (Tex.Crim.App. 2009)…………………...…19

Strickland v. Washington, 466 U.S. 668, 687-90, 694, 104 S.Ct. 2052, 2064-66,
2068, 80 L.Ed.2d 674 (1984)……………………………………………...15-17, 27

Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999).….17, 26-27, 33

Weisinger v. State, 775 S.W.2d 424, 427 (Tex.App.—Houston [14th Dist.] 1989,
pet. ref’d)………………………………………………………………………….27

STATUTORY LAW AND RULES
TEX. PENAL CODE, Section 12.35……………………………………………32

TEX. PENAL CODE, Section 42.105…………………………………………..23

TEX. R. APP. P. 9.4……………………………………………….……………..35

TEX. R. APP. P. 21.4....................................................................................19-20

TEX. R. APP. P. 21.6…………………………………………………….………18

TEX. R. APP. P. 21.8………………………………………………….……...19-20


                                                       iii
                              NO. 07-14-00401-CR

                                     IN THE

                             COURT OF APPEALS

                                   FOR THE

                    SEVENTH JUDICIAL DISTRICT OF TEXAS

                        AMARILLO, TEXAS
******************************************************************
                    VICTOR MANUEL PENSADO,
                             Appellant,
                                VS.
                       THE STATE OF TEXAS,
                             Appellee.
******************************************************************
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Appellee, the State of Texas (“State”), and submits its Brief

in response to the Brief of Appellant, Victor Manuel Pensado (“appellant”), in the

above entitled and numbered appeal. Appellant was convicted of cockfighting in

the 181st Judicial District Court of Potter County, Texas, the Honorable John B.

Board, Presiding.

                             THE CASE IN BRIEF

      CHARGE                   COCKFIGHTING

      PLEA                     NOT GUILTY

      VERDICT (JURY)           GUILTY

      PUNISHMENT (JURY) ONE YEAR IN STATE JAIL/$5,000 FINE


                                        1
      In the interest of brevity, the State will use the following designations: (1)

the Clerk’s Record will be listed as “CR” followed by page numbers; (2) the

Reporter’s Records, “RR” followed by volume and page numbers.

                         STATEMENT OF THE CASE

      Appellant appeals his conviction for cockfighting. CR:48-50             He was

charged by indictment with the offense alleged to have occurred on or about June,

9, 2013. CR:6 Appellant entered a plea of “not guilty” before a jury on November

12, 2014, and was found “guilty” of the offense after evidence was presented.

CR:32; RR2:152-53; RR3:86 At the conclusion of proceedings on November 13,

2014, appellant was assessed punishment at one year in the State Jail Division of

TDCJ, with a $5,000 fine. CR:35, 48-50; RR3:111 A Notice of Appeal and

Motion for New Trial were filed on November 17, 2014, but there is no evidence

the motion was presented. CR:14-15, 21-23 An untimely Amended Motion for

New Trial was filed on January 26, 2015, without evidence of presentment. CR:56-

65 The trial court timely certified appellant’s right of appeal. CR:51-52

                               ISSUE PRESENTED

RESPONSIVE POINT ONE (TO APPELLANT’S “ISSUE ONE”):

      Appellant received effective assistance of counsel.

                            STATEMENT OF FACTS

      To set a context for the State’s response, it offers a narrative of proceedings.


                                          2
      I. Pre-trial Proceedings. Appellant was indicted as follows:

            THE GRAND JURORS for Potter County, Texas, duly organized and
      sworn as such at the July Term A.D., 2013, of the District Court of the 251st
      Judicial District, in and for Potter County, Texas, upon their oaths in that
      Court at that term, present that VICTOR MANUEL PENSADO, hereinafter
      styled Defendant, on or about the 9th day of June, 2013, and before the
      presentment of this indictment, in Potter County, Texas, did then and there,
      knowingly cause a cock to fight with another cock. CR:6

Appellant’s case was transferred from the 251st to the 181st District Court. CR:7

On April 17, 2014, defense counsel was appointed based upon appellant’s request

although appellant was out on bond and listed $3,500 per month income. CR:8-10

Thereafter, multiple pleadings were filed on behalf of appellant, including: a

Motion in Limine and Order; Defendant’s Election as to Punishment (Jury); and,

Application for Community Supervision from the Jury. CR:37-47

      II. Guilt-innocence Proceedings. On November 12, 2014, appellant’s case

was called and both sides announced ready and an interpreter was sworn in. RR2:9

The trial court took judicial notice of appellant’s election for jury punishment and

of his application for community supervision. Id. The defense motion in limine

was also noted with no objection from the State. Id.

      Initial Trial Activity. Both parties participated in voir dire examination and

12 prospective jurors were struck for cause. RR2:25-137 After the jury was sworn

in, the indictment was read and appellant’s plea was entered. RR2:138-39, 152-53




                                         3
The State gave an opening statement and the defense reserved opening and

invoked the Rule. RR2:153-60 Thereafter, five witnesses testified.

      Ethan Hicks. At trial, Hicks was 23 years old and had been an animal

control officer over three years. RR2:161-62 On the afternoon of June 9, 2013,

Hicks was dispatched to a house on a possible cockfight taking place. RR2:163,

166-67This was the first cockfighting case Hicks had ever investigated. RR2:167

      The address was a large property with multiple vehicles and separate

buildings, including chicken coops. RR2:164 Hicks approached on foot in the alley

and saw the backyard gate was open. Id. As he looked in the backyard, everyone

turned to him and then appellant walked over. RR2:164-65 Hicks advised appellant

about the call and asked to come in the yard to look around and appellant gave

permission and was cooperative. RR2:164-66, 168, 201-02 Hicks testified there

were about 10-20 people scattered about and he reported at least 6-8 were sitting

down. RR2:165, 205-08

      Hicks asked appellant if he had been cockfighting and appellant’s first

response was, no, that they were getting ready to eat them.          RR2:168, 202

Appellant said the dead birds underneath a table were ones they were getting ready

to eat. RR2:202 When Hicks asked why they were under the table in the dirt,

appellant said nothing. RR2:203 Hicks next asked appellant why he had all these

roosters and appellant said he just happened to have them. Id. As Hicks looked


                                        4
around the premises more, he saw feathers and blood, in addition to the dead birds,

and told appellant he did not believe what appellant had said and then appellant

admitted to fighting them.       RR2:168-69, 176-78, 186-87, 202-04; State’s

Exhibits:15, 20, 89-94 Appellant told Hicks the birds had fought that day and that

he trains the roosters and takes them to Mexico. RR2:168-70, 204

      When Hicks looked in the shed where appellant kept most of the roosters, he

saw multiple pens and a small refrigerator with vitamins, antibiotics, de-wormer,

and various syringes. RR2:169, 203 In total, 17 live birds were taken from the

property. RR2:169, 188-91; State’s Exhibits:17-18, 21-22, 24-28, 56-61 The two

dead roosters were in the coop with the syringes. RR2:169 Hicks testified the

roosters did not appear to have been dead long. RR2:170 A BB gun and knife were

also in the coop and another BB gun on the back porch. RR2:170, 184-85, 192

Appellant’s only explanation about all the roosters was that he was training them to

take to Mexico. RR2:170 Next, appellant left to go to the bathroom and thereafter

disappeared from the scene. RR2:170-71

      Another animal control officer, Carmen Jackson, showed up and took

pictures. RR2:171-72, 194-95 She had more experience than Hicks. RR2:171

Hicks reviewed and described the pictures from the scene. RR2:172-93 Gaffs were

discussed and shaved spurs and talons. RR2:178-79, 184-86; State’s Exhibits:74-

77, 79-80 The small wire pens with feathers and blood were highlighted.


                                         5
RR2:174-76, 179, 182, 184, 186; State’s Exhibits:2-3, 6-14, 29-31, 62, 64, 70 The

mini frig and contents inside the chicken coop got reviewed. RR2:180; State’s

Exhibits:33, 36, 38-40, 46 ATVs and the vehicles on the property were discussed

and appellant’s initials pointed out. RR2:191-93; State’s Exhibits:48, 52-53

      Hicks speaks English, not Spanish, but testified he had no difficulty talking

with appellant and appellant spoke English back. RR2:193-94 Hicks did not feel

the need to get an interpreter and appellant never asked for one. RR2:194

Appellant had a Hispanic accent but spoke in sentences and Hicks understood what

he said. RR2:204 In the 20 minutes before appellant left, Hicks had no trouble

communicating with him. RR2:194 The other people there all left within 10

minutes. RR2:204-05 Officer Jackson arrived about 10 minutes after appellant

disappeared. RR2:194 It took the police an hour to arrive and Officer Wingate

took pictures and collected evidence once there. RR3:195 The 17 birds from the

property eventually had to be euthanized. Id.

      Carmen Jackson. Jackson has been an animal control officer over six years

and has expert level training in animal cruelty and is familiar with cockfighting.

RR3:7-8 She owns barnyard chickens herself for eggs. RR3:8 In cockfighting,

roosters are altered by cutting off the comb and spurs and trimming their wattles.

RR3:9-10 The comb and wattle adjustments are done so the roosters are not as

vulnerable for others to grab and yank them down. RR3:10 The spurs are cut off


                                         6
so gaffs – razor-sharp blades – can be fitted on their legs. Id. The roosters are then

put in an inescapable cage and fight to the death or until they are too injured to

fight anymore. RR3:10-11 It is a violent practice and the roosters use the gaffs to

gouge eyes out, puncture lungs, and break bones. RR3:11

      On June 9, 2013, Jackson was called as backup to Officer Hicks. Id. When

she arrived on the property, Hicks was the only person there. RR3:11-12 Jackson

walked in the backyard with Hicks and saw feathers everywhere around two

cockfighting pens. RR3:12 There were blood trails, and, when Jackson walked into

the larger chicken coop, she saw two dead roosters under a table in the dirt.

RR3:12, 14 She saw pens with multiple roosters and only one hen. RR3:12 There

was a refrigerator with vitamins, antibiotics, and de-wormer. RR3:12-13 The frig

contents are part of the regimen for fighting roosters and used for conditioning and

to build bigger muscles and more stamina.         RR3:13 These items are injected

through syringes and there were a couple of syringes laying around. Id. They

examined the two dead roosters which had gashes from the gaffs all over their

bodies. RR3:13-14 The roosters had not been dead long. RR3:14

      Jackson took photos and reviewed a few. RR3:14-16 They found a box of

six razor-sharp gaffs. RR3:16; State’s Exhibit:1, 237 There was one egg under one

hen with writing on the egg telling what kind of rooster it came from. RR3:16-21;

State’s Exhibit:236 The best cockfighting roosters are bred like horses. RR3:16-19


                                          7
There was no indication on this property anybody was raising chickens for eggs to

eat. RR3:20 Jackson was at this Potter County property for an hour and a half and

appellant never returned to the scene. RR3:17 The police arrived and also took

pictures. Id. There were 17 birds impounded and animal control notified the

property owner to come claim them but he never did and they had to be

euthanized. RR3:21-23

      Matthew Wingate. Wingate testified he had been an Amarillo police officer

for over three years when dispatched to appellant’s property. RR3:24 He arrived

about 6:30 p.m. and met Officers Jackson and Hicks. RR3:25 The animal control

officers advised they had been dispatched on an animal cruelty call for

cockfighting. Id. The owner of the property disappeared before Wingate got there

but left two vehicles, his pickup truck and a Volkswagen car. RR3:25-26; State’s

Exhibits:52-53, 83 Wingate ran the licenses and they came back registered to

appellant. RR3:26-27 Wingate spoke to a neighbor across the street about who

resided in the house and the conclusion was no one other than appellant lived there.

RR3:27 Wingate was on the scene for several hours but appellant never returned.

Id. Wingate collected the box of gaffs. RR3:28-29; State’s Exhibit:1 He viewed

the two dead roosters under the table and seized items in the frig. RR3:30-31

Lastly, Wingate turned the case over to a detective. RR3:31




                                         8
      Cory Jones. Jones has been an Amarillo police officer over 16 years.

RR3:33 This was the first cockfighting case he ever investigated. RR3:34 During

the investigation, he attempted to contact appellant and finally got him by

telephone on June 18, 2013. Id. Jones explained to appellant he had been assigned

the case and was investigating what happened.           RR3:35 Appellant briefly

explained over the phone he went to his house and people were in his backyard and

he did not know what was going on. RR3:36 Jones asked appellant why he left

before the police got there and appellant said he got scared because he had been

drinking. Id. Jones asked appellant to come give a statement on the case and

appellant agreed to meet on June 19, 2013, at 4:00 p.m., but never showed up for

his appointment. RR3:35-36

      Defense Opening Statement. After the State rested, the judge admonished

appellant about the right not to testify and then the defense gave an opening

statement. RR3:40-42 Defense counsel urged appellant would not dispute the fact

that a cockfight occurred but that appellant’s presence at the time was just a bad

coincidence.   RR3:40-41 According to the defense, appellant was not aware

cockfights were occurring on his property.       RR3:41 Defense counsel further

asserted appellant did not confess to Hicks about doing the cockfights. Id. Finally,

the defense argued appellant admits he left the scene but only because he was not

happy about the cockfighting. RR3:41-43


                                         9
      Appellant. Appellant is the property owner but testified he had not lived

there since his wife and three kids moved out and instead stayed with his mother

when in Amarillo. RR3:43-44, 48-50 Appellant and his wife were married over 15

years and had three kids – ages 16, 14, and 12. RR3:48, 51 He testified he went by

the house every weekend and let a friend named “Mario Barrarra” take care of the

property.   RR3:44, 50-51 At trial, appellant had no knowledge of Mario’s

whereabouts but had known him since Mexico when they were neighbors. Id.

      Appellant testified he never saw a cockfight before on his property. RR3:44-

45, 56 He claimed to have had a discussion with his friend about keeping roosters

but they never talked about fighting them. RR3:45, 56 Appellant claimed he had

chickens but his friend liked roosters and appellant testified he did not want any

problems. RR3:56 On June 9, 2013, appellant claims he stopped by his house and

noticed people there at the same time animal control arrived. RR3:45, 56-57 There

were lots of cars and people at his house which appellant thought was weird.

RR3:45, 57 Appellant admits he approached Hicks and let him come in. RR3:45-

46 Appellant denied he ever told Hicks he was fighting cocks. RR3:46

      Appellant testified that the conversation with Hicks was in English which

appellant does not understand very well but he understood what Hicks was saying.

RR3:46, 57 Appellant claims Hicks just did not understand him. RR3:59 Appellant

testified he did not see the dead roosters until Hicks started looking around.


                                        10
RR3:46 Appellant denies telling Hicks he trained roosters to fight in Mexico.

RR3:46-47, 58-59 Appellant claims he was trying to tell Hicks that in Mexico there

are rooster fights. RR3:58-59 He admits he thinks he told Hicks he was keeping

chickens for food. RR3:47, 57 He acknowledged he told Hicks he killed the

roosters to eat them but admits he lied about that because he did not know what

else to say. RR3:57-58 Appellant denies he later admitted to Hicks he was fighting

the roosters and had just finished a fight. RR3:58 Appellant left the scene after

speaking with Hicks because he thought he was in a lot of trouble over the dead

roosters. RR3:47, 60 Appellant claims he never met with police because of work

and he did not have the time. RR3:48

      Appellant identified a photo of his house with his pickup and a red car.

RR3:52; State’s Exhibits:52, 83, 102 Appellant claimed he always left his truck

there and drove the car to the house that day.         RR3:52-53 His friend would

sometimes use the truck. Id. Appellant testified he owned all the ATVs in the

backyard. RR3:53; State’s Exhibit:48 He used the big one and the others were for

his kids. Id. Consequently, all the vehicles on the property belonged to appellant.

      Appellant recognized a pen in his backyard and testified it had been there a

long time. RR3:53; State’s Exhibit:5 According to appellant, they used the four

visible pens to put the roosters out in the sun. RR3:53-54 He claims he did not

know about the vitamins and antibiotics in the refrigerator, just that the refrigerator


                                          11
was there. RR3:54-55 Appellant admits he made the chicken coop but it was for a

horse he used to have. RR3:55 Appellant remembers speaking with Sgt. Jones on

the phone and that he was going to meet him. RR3:59 Appellant did not go because

he had a lot of work and his boss would not let him. Id. Appellant admits he never

told Sgt. Jones about somebody named “Mario Barrarra” and waited a year and a

half till in court to mention him. RR3:60, 62

      Argument and Verdict. The State focused on the credibility of Hicks’

version of events versus that of appellant. RR3:71-78 The State highlighted neither

Hicks nor Jones had trouble speaking with appellant and appellant’s descriptive

answers were reviewed. Id. Defense counsel also commented: “I think the real

issue for you to decide is this conversation between my client and Mr. Hicks, the

animal control officer.” RR3:79The defense stressed the jury had to figure out

whose story was most credible. Id. Defense counsel argued appellant was telling

the truth and even confessed at trial that it was not true the roosters were killed to

eat. RR3:81-82 On final close, the Stated agreed “that the main issue was the

conversation appellant had with Ethan Hicks.” RR3:83 After deliberation, the jury

found appellant “guilty” of cockfighting. RR3:86

      III. Punishment Proceedings. Opening statements were waived and the

State retendered evidence and rested. RR3:87 Next, appellant testified.




                                          12
      Appellant. Appellant’s application for probation was reviewed and that he

had never been convicted of a felony or misdemeanor theft. RR3:88, 93 If given

probation, appellant would not use drugs or alcohol and would follow the law.

RR3:90-91 Appellant stated he does construction and farm work for a living,

sunrise to sunset, and makes $18 per hour. RR3:88-89, 92 Appellant testified he is

a legal citizen and has lived in this country since he was 18 years old and appellant

was aged 41 at trial. RR3:89, 93 Appellant’s kids were mentioned and that he

supports them and helps his mother. RR3:89-91 He visits his kids every weekend

and they ride horses, go out to eat, watch movies. RR3:89 On cross-examination,

appellant acknowledged he stays the whole week in Shamrock, Texas, and only

drives back to Amarillo on weekends. RR3:91-92 Appellant’s house was up for

sale and half of the money would go to his former wife. RR3:92

      Argument and Verdict.          The State argued appellant lied about his

involvement and the defense focused on appellant as a hardworking guy with kids

and a mother to help and recommended probation over prison. RR3:102-08 The

jury’s verdict was one year in a state jail facility with a $5,000 fine. CR:111

                       SUMMARY OF THE ARGUMENT

      Appellant received effective assistance of counsel at both stages of trial.

Appellant claims his counsel was ineffective because extra witnesses were not

called but appellant has not met his burden of showing both deficiency and


                                          13
prejudice. The State did not contest that appellant was a good father and employee

and did not assert that appellant lived exclusively at his Amarillo property. The

main issue at trial was whether the jury believed Hicks or appellant regarding their

20-minute conversation at the scene, and, in particular, appellant’s confessions to

Hicks regarding the roosters and cockfighting. The presumption of reasonable trial

strategy applies here since the record was not sufficiently developed to be

discussed on appeal. In sum, appellant has not shown a reasonable probability that

the result of the trial would have been different but for trial counsel’s alleged

deficient performance at guilt-innocence and punishment. Therefore, appellant’s

claim should be overruled in all respects.

                                   ARGUMENT

RESPONSIVE POINT (TO APPELLANT’S “ISSUE ONE”) (RESTATED):

      Appellant received effective assistance of counsel.

      I. Appellant’s Contentions. Appellant contends his conviction should be

set aside and a new trial ordered because his mother and sister were not called to

testify he lived with them on weekends and was a good father and his employer

was not called to also discuss what a good worker he was. In appellant’s view, it

was unacceptable strategy not to present this testimony. According to appellant,

no mitigation evidence was presented or a single mitigating factor brought out.

Appellant’s Brief (“AB”):17-18, 25-27 If other witnesses had been called,


                                         14
appellant asserts he may not have been found guilty or may have gotten a lesser

sentence or probation.

      II. Summary of the State’s Response. Appellant testified on his own

behalf at both the guilt-innocence and punishment phase of trial and presented

ample mitigating evidence. Other witnesses were not called, but there could have

been strategic reasons not to put them on the stand.   It is unclear from the record

whether other witnesses may have benefitted appellant under cross examination.

For strategic reasons, defense counsel may have refrained from calling witnesses

which may not have supported appellant’s claim of ignorance about the roosters

and English. Thus, any benefit to be gained from these witnesses may have been

offset and contrary to appellant’s testimony. Based upon a review of the record,

appellant has not shown a reasonable probability of a different result even if more

witnesses had been called. In sum, appellant has not met his burden of showing

both deficiency and prejudice and a presumption of reasonable trial strategy on this

silent record pertains to this claim.

      III. Argument and Authorities. A. Standard of Review. The proper

standard for judging a claim of ineffective assistance of counsel was enunciated in

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d

674 (1984). The Strickland standard was adopted by the Texas Court of Criminal

Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). To


                                        15
prove ineffective assistance, an appellant must show that (1) trial counsel’s

representation fell below an objective standard of reasonableness under prevailing

professional norms, and (2) there is a reasonable probability that the result of the

proceedings would have been different but for trial counsel’s deficient

performance.    Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Ex parte

Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App. 1993). Both prongs of the test

must be shown for there to be ineffective assistance of counsel; unless both

showings are made, “it cannot be said that the conviction … resulted from a

breakdown in the adversary process that renders the result unreliable.” Strickland,

466 U.S. at 687, 104 S.Ct. at 2064; Menchaca, 854 S.W.2d at 131.                The

Strickland standard also applies to the punishment phase of a noncapital

proceeding. Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999).

      Under Strickland, it must be determined whether counsel’s assistance was

reasonable considering all the circumstances, whether under the circumstances, the

challenged action might be considered sound trial strategy, and whether, in light of

all the circumstances, the identified acts or omissions were outside the wide range

of professionally competent assistance. Strickland, 466 U.S. at 688-90, 104 S.Ct.

at 2065-66.    In evaluating counsel’s performance, judicial scrutiny of the

performance must be highly deferential, with every effort made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel’s


                                         16
challenged conduct, and to evaluate the conduct from counsel’s perspective at the

time. Id. at 689, 104 S.Ct. at 2065.

      There is a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance. Thompson v. State, 9 S.W.3d 808,

813 (Tex.Crim.App. 1999); Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.

2005).   To defeat the presumption of reasonable professional assistance, any

allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d

at 814; Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Absent

an opportunity for trial counsel to explain his actions, the appellate court should

not find deficient performance unless the challenged conduct was so outrageous

that no competent attorney would have engaged in it. Menefield v. State, 363

S.W.3d 591, 593 (Tex.Crim.App. 2012); Goodspeed, 187 S.W.3d at 392. In the

absence of evidence of counsel’s reasons for the challenged conduct, an appellate

court commonly will assume a strategic motivation if any can possibly be

imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001).

      Generally, the record on direct appeal will not be sufficient to show that

counsel’s representation was so deficient as to meet the first part of the Strickland

standard. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). As

pertains to the instant matter, direct appeal is an inadequate vehicle for raising an


                                         17
ineffective assistance of counsel claim because the record is generally

undeveloped. Goodspeed, 187 S.W.3d at 392.

      B. Motion for New Trial and Presentment. The jury rendered a punishment

verdict against appellant and sentenced was imposed on November 13, 2014.

CR:48 Less than one week later, appellant timely filed his motion for new trial.

CR:21-23 In the motion, appellant asserted “[t]he verdict is contrary to the law

and evidence” and urged the judge “set aside the judgment of conviction entered in

this cause and order a new trial on the merits.” CR:21 The Court of Criminal

Appeals has explained that a claim that a verdict “was against the law and the

evidence” raises a sufficiency challenge to the evidence but does not present any

other claim. See State v. Zalman, 400 S.W.3d 590, 594 (Tex.Crim.App. 2013).

      No affidavits were attached to appellant’s motion, and the motion did not

further explain how the verdict was inconsistent with the law or the evidence.

CR:21-23 Although appellant timely filed his motion for new trial, the record does

not contain any ruling on the motion, a proposed order containing the trial judge’s

signature or notation, or a docket entry evidencing a hearing on the motion. See

TEX. R. APP. P. 21.6 (requiring defendant to present the motion for new trial to

the trial court within 10 days of filing); Gardner v. State, 306 S.W.3d 274, 305

(Tex.Crim.App. 2009).




                                        18
      “In addition to timely filing the motion with supporting affidavits that

demonstrate reasonable grounds for believing that some error has occurred, the

defendant must present the motion to the trial court.” Rozell v. State, 176 S.W.3d

228, 230 (Tex.Crim.App. 2005). Presentment requires a defendant to do more than

simply file the motion for new trial. Bearnth v. State, 361 S.W.3d 135, 145

(Tex.App.—Houston [1st Dist.] 2011, pet. ref’d).       To present a motion, the

defendant must give the trial court actual notice that he timely filed a motion for

new trial and requests a hearing on the motion for new trial. See id.; Carranza v.

State, 960 S.W.2d 76, 79 (Tex.Crim.App. 1998). Hereunder, appellant did not

satisfy the procedural requirements that the motion be actually presented. Stokes

v. State, 277 S.W.3d 20, 21 (Tex.Crim.App. 2009).

      Next, appellant filed an untimely Amended Motion for New Trial on the

afternoon of the 74th day after appellant’s sentence was imposed. CR:56-65 See

TEX. R. APP. P. 21.4 (setting out 30-day deadline for filing amended motion for

new trial without leave of court), 21.8 (providing that motion for new trial is

“deemed denied” if not ruled upon “within 75 days after imposing or suspending

sentence”); State v. Moore, 225 S.W.3d 556, 570 (Tex.Crim.App. 2007)

(construing rule 21.4 as allowing defendant to file amended motion for new trial

provided that original motion for new trial was timely filed, that amendment was

made within 75-day period within which original motion must be ruled upon


                                        19
before being deemed overruled by operation of law, and that State does not object

to untimely amendment). This late amended motion presented an ineffectiveness

claim and contained affidavits from appellant’s family and employer. CR:56-65

      Here, in addition to enlarging on his original motion with the added

ineffectiveness claim after the 30-day period to amend had expired, no presentment

was made or objection. TEX. R. APP. P. 21.4(a)-(b). The record should be

sufficient to demonstrate that the State was afforded a meaningful opportunity to

object to the untimely amendment, or to any order purporting to grant it, within the

75-day period. Id. Ultimately, appellant’s amended motion for new trial was

overruled by operation of law, or, the day after filing. See TEX. R. APP. P. 21.8.

While the State did not object to the untimeliness of appellant’s amended motion

for new trial, it remains questionable whether the State was afforded a meaningful

opportunity to do so upon late service of the actual amended motion.

      Nevertheless, it is well settled that an ineffective assistance of counsel claim

may be raised without the necessity of a motion for new trial. See Robinson v.

State, 16 S.W.3d 808, 809-13 (Tex.Crim.App. 2000). Therefore, the State will

address the claim based on the trial record and discuss appellant’s argument below.

      C. Discussion. Appellant claims he was deprived of effective assistance at

both stages of trial and he asserts that counsel’s performance was deficient and that

he was harmed when counsel (1) failed to call witnesses at guilt-innocence to


                                         20
corroborate his living situation, and (2) failed to call favorable character witnesses

to support his plea for probation. While appellant claims no mitigation or favorable

evidence was presented, he ignores the ample testimony provided by appellant on

his own behalf. The State urges that even though the jury believed the testimony

of Hicks over appellant about the roosters and cockfighting, they gave him only a

mid-range sentence, or, half the maximum.

      1. Guilt-Innocence. The defense filed multiple pleadings and these were

discussed at the pre-trial hearing when the case was called. CR:37-47; RR2:9

Notably, appellant’s application for probation from the jury had been filed and the

trial judge took judicial notice of it. RR2:9 During the voir dire examination,

defense counsel actively participated, and indeed, a total of 12 jurors were struck.

RR2:25-137 Five witnesses were called to testify, including appellant, and defense

counsel objected a total of 15 times and was notably sustained on more than half of

his objections. RR2:73, 165, 177-78, 182, 207; RR3:10, 12, 21, 28-30, 35-36, 60

Ample mitigation evidence was presented by appellant at both the guilt-innocence

and punishment phases of trial. RR3:43-62, 88-94

      Appellant entered a plea of “not guilty” and claimed ignorance of the

cockfighting operation at his house throughout the proceedings. RR2:152-53 The

main issue at trial revolved around the 20-minute conversation on the property

between appellant and animal control officer Hicks. RR2:168-70, 202-04, 194;


                                         21
RR3:44-47, 57-58, 71-83 According to appellant, testimony from his sister and

mother about appellant’s unique living situation would have supported his claim of

total ignorance about the cockfighting and led the jury to have found him “not

guilty” of the crime. AB:18-23 As appellant testified, however, he checked in

weekly at his property when in Amarillo. AB:19; RR3:43-44, 49-51 In the State’s

view, whether appellant ate or slept elsewhere when in Amarillo on the weekends

is really of no import. Appellant’s purported language barrier, ignorance of the

roosters and cockfights, and other matters may have concerned the defense had

other witnesses been put on the stand and subjected to cross-examination.

      Assuming trial counsel was ineffective for not presenting witnesses to

discuss appellant’s living situation, appellant fails to demonstrate that he was

prejudiced by this alleged ineffectiveness. The jury did in fact hear evidence

through appellant’s testimony about his living situation and it is doubtful more

testimony would have made for a different outcome.          Appellant testified he

checked in on his property weekly and incriminating evidence was present

throughout; including, multiple roosters, cockfighting pens, gaffs, blood and

feathers, syringes and other cockfighting materials. Appellant did not have to live

at the property to maintain and have knowledge of the roosters and the

cockfighting operation. Evidence that he spent weekdays at an out-of-town ranch

was already before the jury and that he ate and slept at his mom’s on weekends.


                                        22
Given the potential hazards involved, even if more witnesses were called, the

defense decision not to call them could be considered strategic as these witnesses

may not have benefitted appellant in the end. Experienced trial counsel must

weigh the potential benefit of witness testimony against, among other things, the

potential adverse impact of cross-examination.        See Matthews v. State, 830

S.W.2d 342, 346 (Tex.App.—Hosuton [14th Dist.] 1992, no pet.).

      Although appellant initially claimed the birds were raised for the production

of food, the evidence established the roosters were raised for the purpose of

fighting. RR3:12-14 At the residence, the animal control officers found two dead

roosters along with multiple roosters in cages. Only one chicken was identified

sitting on a lone marked egg in a pet carrier and the evidence established this was a

breeding hen and fighting cock egg. RR3:12, 16-21 It was evident at trial that these

roosters were not raised for food but for the purpose of fighting, an activity that is

illegal in Texas. See TEX. PENAL CODE, Section 42.105; Mejia v. State, 681

S.W.2d 88, 90 (Tex.App.—Houston [14th Dist.] 1984, pet. ref’d); Hendrickson v.

Swyers, 9 S.W.3d 298, 300 (Tex.App.—San Antonio 1999, no pet.).

      Appellant’s case is very similar to Gonzalez v. State, 376 S.W.3d 141

(Tex.App.—Tyler 2012, pet. ref’d).      Therein, in response to citizen complaints,

officers went to a residence and found a gathering of about 20 people, many of

which left as officers approached. Id. at 142. At the Gonzalez residence, officers


                                          23
found two dead roosters and blood on the ground near the area of a ring for

cockfighting and a table with gaffs to attach to the roosters legs for cockfighting

and syringes and other materials for the cockfighting activity. Id. at 143. While

appellant claimed his cages were just for “sunning” the roosters, Gonzalez claimed

his cages were for “sparring” and not fighting the birds. RR3:53-54; Id.

      Highlights from the scene at appellant’s property and trial include: dispatch

on possible cockfight taking place (RR2:163, 166-67; RR3:25); up to 20 people at

the location and all scatter once animal control arrives, except appellant (RR2:164-

65, 205-08); initially, appellant denied there had been cockfighting and said they

were getting ready to eat them (RR2:168, 202); when asked why he had so many

roosters, appellant said he just happened to have them (RR2:203); the property had

pens with multiple roosters and one hen sitting on one egg with writing on it and

no indication on this property that anybody was raising chickens for food or eggs

to eat (RR3:12, 16-21); appellant said the two dead roosters in the dirt, under a

table with syringes and gaffs, were the birds they were getting ready to eat

(RR2:168-70, 178-79, 184-86; RR3:13-14); vitamins, antibiotics, and de-wormer

in the refrigerator were identified as part of the       cockfighting regimen for

conditioning, bigger muscles, and more stamina and gaffs were discussed as blades

to attach to the roosters to gouge eyes, puncture lungs, and break bones (RR2169,

203; RR3:10-13); after viewing the premises, feathers and blood trails and the


                                        24
small wire cockfighting pens, appellant finally admitted to Hicks the birds had

fought that day and that he trains roosters and takes them to Mexico (RR2:168-70,

174-82, 184, 186-87, 202-04; RR3:12, 14); a neighbor told police no one other

than appellant lived at the residence (RR3:27); ATVs in the backyard and a car and

pickup truck on the premises were all owned by appellant (RR2:191-93; RR3:25-

27, 52-53); appellant said he had to go to the bathroom but fled the scene and never

returned while officers were there (RR2:17-71, 194; RR3:27); lastly, appellant

agreed to come in and give a statement to police but he never showed up for his

appointment (RR3:35-36).

      A year and a half later, for the first time appellant claims someone named

“Mario Barrarra” was responsible for the cockfighting operation at the property but

appellant professed ignorance of the whereabouts of “Mario” at trial (RR3:44, 50-

51, 60, 62). Although the owner of the residence, appellant claimed it was just a

bad coincidence he was there the day of the cockfight and claimed he left the scene

because he had been drinking and was afraid he was in trouble over the dead

roosters (RR:36, 43-44, 47-51, 56, 60). He did not meet with police later because

of work and testified he really did not have the time (RR3:48, 59). Appellant

admitted on cross he had a discussion with “Mario” because he knew about the

keeping of roosters and did not want any problems (RR3:56). Appellant denies he

ever told Hicks he was fighting cocks or training them to fight in Mexico and that


                                        25
he had just finished a fight that day and claims Hicks just did not understand him

(RR3:46-47, 58-59). Appellant admitted he lied to Hicks that he killed the roosters

to eat them and kept the birds for food because he did not know what else to say

(RR3:57-58). Appellant recognized the pens and coops and refrigerator contents at

trial but minimized what these items were used for in his backyard; however,

appellant testified the four cockfighting pens in the backyard were used for the

roosters to get some sun (RR3:53-55).

      For closing arguments, the focus was on the different version of events told

by Hicks and appellant. RR3:71-83 The State never contested appellant’s work

schedule and that he lived the majority of the time on a ranch out of town and not

at the residence. Appellant’s amended motion for new trial complains that defense

counsel was ineffective because he should have called appellant’s mother and

sister to confirm his living situation. AB:23 The reason for not calling other

witnesses goes unexplained in the record, but there could very well have been

strategic reasons. The record remains silent regarding trial counsel’s strategy.

With a silent record, the Court has not been provided “a record capable of

providing a fair evaluation of the merits of the claim involving such a serious

allegation. In the majority of instances [such as this one], the record on direct

appeal is simply undeveloped and cannot adequately reflect the failings of

counsel.” Thompson, 9 S.W.3d at 813-14.


                                        26
      The Strickland analysis begins strongly presuming that counsel was

competent and that his decisions “fell within the wide range of reasonable

professional assistance.”     Strickland, 466 U.S. at 689, 104 S.Ct. at 2065;

Thompson, 9 S.W.3d at 814.           Appellant complains counsel was ineffective

because he should have called more witnesses but only rarely will a sufficiently

developed record “permit a reviewing court to fairly evaluate the merits of such a

serious allegation.” Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002) (“In

the majority of cases, the record on direct appeal is simply undeveloped and cannot

adequately reflect the failings of trial counsel.”). Absent affirmative evidence of

misconduct, ineffective assistance will not be inferred 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,

187 S.W.3d at 392. No such affirmative evidence of outrageous misconduct is

present in the record of the instant matter.

      The State urges appellant cannot overcome the presumption that his lawyer

competently made a strategic, professionally sound decision in light of the record

as a whole. “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). Appellant has not provided

enough evidence to overcome the presumption that trial counsel’s decision to not


                                          27
call more witnesses was strategic. Appellant does not direct attention to any other

evidence in the trial record that would allow one to veer into counsel’s decision-

making process and provide insight as to his rationale regarding trial strategy. In

short, appellant has not offered evidence beyond assertions in his brief sufficient to

overcome the presumption of defense counsel’s competence.

      In the majority of cases, the record on direct appeal is simply undeveloped

and cannot adequately reflect the alleged failings of trial counsel; this is

particularly true when the alleged deficiencies are matters of omission and not of

commission revealed in the record.       Jackson v. State, 973 S.W.2d 954, 957

(Tex.Crim.App. 1998). Appellant has simply not demonstrated his trial counsel

was ineffective – deficient and prejudicial – in handling the guilt-innocence phase.

      2. Punishment. For the punishment phase, appellant also complains his

attorney failed to call other witnesses to testify about the same matters as appellant:

his work ethic and love and support of his children. AB:23-28 Again, however,

the State responds that the same undisputed testimony was already eloquently

given by appellant. RR3:88-92 Additional testimony would have been cumulative

and possibly not helpful in the end. Therefore, appellant’s position that more

mitigation evidence about the same issues in appellant’s life would have made for

a different outcome is an untenable conclusion.         Given the potential hazards




                                          28
involved, even if additional witnesses were identified earlier, a trial counsel’s

decision not to call them could be considered wise strategy.

      Although appellant argues no mitigation evidence was offered at trial,

appellant himself gave extensive mitigating evidence about his personal history

and hard work at a ranch, his active involvement with his children, and assistance

to his mother. RR3:43-44, 48-51, 53, 88-92 The jury heard appellant had a good

steady job and made $18 an hour. RR3:88-89, 92 Besides the large property he

owned in Amarillo, the jury saw appellant owned an impressive array of vehicles:

a nice pickup truck, red Volkswagen, and a fleet of ATVs in his backyard.

RR3:52-53; State’s Exhibits:48, 52, 83, 102          Appellant asked the jury for

probation and promised to follow the law and not use drugs or alcohol. RR3:90-91

He testified he never had been convicted of a felony or misdemeanor theft.

RR3:88, 93 If given probation, appellant stated he would be able to support his

children better and help his mother. RR3:89-91 Trial counsel obviously wanted to

minimize appellant’s involvement in animal cruelty and made an artful use of

appellant’s own testimony regarding his care of family and work ethic for the jury

to consider probation instead of incarceration.       More testimony from other

potential witnesses might not have added much to what was already before the jury

and additional testimony would have been cumulative of other evidence presented

at trial and potentially harmful.


                                         29
      The affidavits attached the late-amended motion are quite detailed and well

written and do not support appellant’s claim that he had a language barrier that

caused Hicks to not understand appellant.        In particular, the affidavits of

appellant’s mother and younger sister do not suggest any language issue for these

long-time residents and U.S. citizens. CR:62-65 Likewise, appellant’s employer

mentions no communication issues, and, in fact, notes appellant’s prowess in

learning new skills and ability to review electrician manuals and rewire ranch

property. CR:60 At trial appellant claimed he really did not understand English

very well and had such serious communication issues but the affidavits do not

support his claim. AB:Appendix B, Exhibits A-C; CR:61 Moreover,        appellant’s

employer might not have supported appellant’s position at trial that his employer

would not let him make the scheduled appointment with police. RR3:59

      Finally, appellant waited over a year and a half to testify in court that a

person named “Mario” lived in his house but Mario was never mentioned to Hicks

or Jones. RR3:59-62 When cross examined about the mysterious Mario, appellant

testified he knew Mario as a neighbor in Mexico when the family lived there but

appellant’s mother claimed she never met Mario.          RR3:44, 50-51; CR:64;

AB:Appendix B, Exhibit C On several levels, the affidavits attached to the amended

motion do not necessarily provide supporting evidence and, if these witnesses were

subjected to cross examination, they may have not benefitted appellant at


                                        30
punishment. Thus, defense counsel may have made a reasonable strategic decision

to forego presentation of additional witnesses to testify on appellant’s behalf.

      Appellant and his attorney did offer mitigation evidence and attempted to

persuade the jury to give appellant probation. At punishment, the focus was on

appellant as a good candidate for probation and one capable of hard work with no

prior criminal convictions. RR3:88-93, 106-08 Appellant pleaded his case for

leniency and trial counsel further argued for probation on his behalf. Id. The mere

fact that three other witnesses may have been available to testify does not make the

decision to forgo that testimony an unwise one. See Bone, 77 S.W.3d at 833, 836;

Ex parte Woods, 176 S.W.3d 224, 228 (Tex.Crim.App. 2005) (defendant did not

show that counsel’s decision to present only some testimony at sentencing was not

an acceptable strategic decision). Without record evidence of counsel’s reasons for

not offering more testimony, appellant is unable to overcome the presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.

Rodriguez v. State, 292 S.W.3d 187, 190 (Tex.App.—Amarillo 2009, no pet.).

Appellant has not shown a reasonable probability exists that the jury would have

assessed a lesser sentence or even probation if there was more testimony and

counsel’s reasons for not offering such evidence.

      As stated above, because the reasonableness of trial counsel’s choices often

involves facts that do not appear in the appellate record, the Court of Criminal


                                          31
Appeals has stated that trial counsel should ordinarily be given an opportunity to

explain his actions before a court reviews the record and concludes that counsel

was ineffective. See Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App.

2003); Bone, 77 S.W.3d at 836. Appellant’s ineffectiveness claim falls short. The

jury assessed only middle range punishment at one year in state jail and a 5,000

fine. See TEX. PENAL CODE, Section 12.35(a)-(b) (providing that punishment

range for state jail felony is imprisonment for not more than two years or less than

180 days and a fine not to exceed $10,000); CR:33-35, 48 Although appellant did

not receive probation, he was assessed half the maximum fine and imprisonment.

On this record, appellant has not shown he received ineffective assistance.

                                 CONCLUSION

      In conclusion, there was no evidence of ineffective assistance as trial

counsel’s strategy was not shown in the record. Because trial counsel’s strategy is

not shown on the face of the record, deficient performance should not be found

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

have engaged in it which is not the case hereunder. Although the evidence failed

to convince the jury appellant was innocent or should get probation, appellant

received effective assistance. Appellant’s late-filed amended motion for new trial

and affidavits do not establish appellant’s entitlement to relief. Even if extra

witnesses were called to discuss appellant’s living arrangements and confirm


                                         32
appellant was a good father and worker, that does not led one to conclude that

there is a reasonable probability that, but for counsel’s omission, the result of the

proceeding would have been different. Further, under cross examination, these

additional witnesses may have not benefitted appellant and may have caused him

harm. Bottom line, the jury believed the testimony of Hicks over appellant.

      When, as in this case, there is no proper evidentiary record developed at a

hearing on a motion for new trial, it is extremely difficult to show trial counsel’s

performance was deficient, especially when the record provides no discernable

explanation of the motivation behind counsel’s actions – whether those actions

were of strategic design. See Thompson, 9 S.W.3d at 814. Contrary to appellant’s

claim, this case is not the rare case where ineffectiveness can be found with a silent

record. As such, appellant’s claim of ineffectiveness should be overruled since

trial counsel has not been afforded an opportunity to explain his actions “before

being denounced as ineffective.” See Goodspeed, 187 S.W.3d at 392. Appellant

has not met his burden of showing deficient performance at either trial phase. Nor

has he shown prejudice, and that the result would have been different but for

defense counsel’s alleged deficient performance.

      Appellant’s sole issue should be denied in all respects.




                                          33
                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State respectfully prays

that this Honorable Court overrule appellant’s issue and affirm the conviction.

                                Respectfully submitted,
                                RANDALL SIMS, 47TH DISTRICT ATTORNEY
                                Potter County Courts Building

                                /s/ Katherine L. Levy
                                KATHERINE L. LEVY, SBN 12266480
                                Assistant District Attorney
                                501 S. Fillmore, Suite 5A
                                Amarillo, Texas 79101
                                kathylevy@co.potter.tx.us
                                (806) 379-2325; fax (806) 379-2823

                                ATTORNEYS FOR THE STATE


                         CERTIFICATE OF SERVICE

      I hereby certify that on this the 31st day of July, 2015, a true copy of the

foregoing State’s Brief was served on appellant’s attorney, Hillary S. Netardus, P.

O.    Box     50652,     Amarillo,     Texas,     79159-0652,      email    address

hillarynetardus@yahoo.com.

                                /s/ Katherine L. Levy
                                Assistant District Attorney




                                         34
                     CERTIFICATE OF COMPLIANCE

      In accordance with TEX. R. APP. P. 9.4(i)(3), I hereby certify that the

foregoing Brief contains, as reflected in the computer word count, 8,472 words.

That count includes all words in the Brief, including words which, under the Rule,

are excluded from the prescribed word limit.

                               /s/Katherine L. Levy
                               Assistant District Attorney




                                        35
