                                                                              ACCEPTED
                                                                          01-13-01045-CR
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                     5/18/2015 2:29:43 PM
                                                                    CHRISTOPHER PRINE
                                                                                   CLERK


          No. 01-13-01045-CR
                       In the                            FILED IN
                                                  1st COURT OF APPEALS
             Court of Appeals                         HOUSTON, TEXAS
                       For the                    5/18/2015 2:29:43 PM
         First District of Texas                  CHRISTOPHER A. PRINE
                                                          Clerk
                    At Houston

             ♦

                   No. 1921607
      In the County Criminal Court at Law No. 2
               of Harris County, Texas

             ♦


EX PARTE RICHARD MARK BOWMAN
             ♦

     STATE’S BRIEF ON REMAND
  FROM COURT OF CRIMINAL APPEALS
             ♦

                            DEVON ANDERSON
                            District Attorney
                            Harris County, Texas
                            DAVID OVERHULS
                            Assistant District Attorney
                            Harris County, Texas
                            BRIDGET HOLLOWAY
                            Assistant District Attorney
                            Harris County, Texas
                            Texas Bar No. 24025227
                            holloway_bridget@dao.hctx.net

                            Harris County Criminal Justice Center
                            1201 Franklin, Suite 600
                            Houston, Texas 77002
                            Tel.: 713.755.5826
                         IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below:

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Bridget Holloway  Assistant District Attorney on appeal

             David Overhuls —Assistant District Attorney at laches hearing

             Lindsey Vanik  Assistant District Attorney at writ hearing

      Appellant or criminal defendant:

             Richard Mark Bowman

      Counsel for Appellant:

             Randy Schaffer  Counsel on appeal & laches and writ hearings

             Brian Wice  Counsel on appeal & laches and writ hearings

             Ned Barnett — Counsel at 2005 DWI trial

      Trial Judge:

             Hon. William Harmon —Presiding Judge at laches and writ hearings

             Hon. Michael Peters —Presiding Judge at trial




                                         i
                                                   TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES ...................................................................................... i

TABLE OF CONTENTS................................................................................................................. ii

INDEX OF AUTHORITIES .........................................................................................................iii

STATEMENT OF THE CASE & PROCEDURAL HISTORY .............................................. 1

SUMMARY OF THE STATE’S ARGUMENT ......................................................................... 5

STATEMENT REGARDING ORAL ARGUMENT ............................................................... 6

STATE’S REPLY TO APPELLANT’S GROUND FOR REVIEW ....................................... 7

   Applicable Authority .................................................................................................................. 7
   Analysis .......................................................................................................................................... 9
     A. Equitable Relief is Barred by Laches.......................................................................... 9
       1. Unreasonable & Inexcusable Delay ...................................................................... 9
       2. State is Prejudiced by Appellant’s Unreasonable & Inexcusable Delay .... 14
     B. Ineffective Assistance of Counsel Claim is Without Merit ............................... 14
     C. Conclusion.......................................................................................................................18

PRAYER ............................................................................................................................................18

CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE ..............................19




                                                                       ii
                                            INDEX OF AUTHORITIES


CASES

Ex parte Bowman,
  444 S.W.3d 272
  (Tex. App. —Houston [1st Dist.] 2014) (op. on reh’g),
  pet. granted, judgm’t vacated, 447 S.W.3d 887 (Tex. Crim. App. 2014) ................. 3

Ex parte Bowman,
  447 S.W.3d 887 (Tex. Crim. App. 2014) ..............................................................3, 6, 7, 9

Ex parte Carrio,
  992 S.W.2d 486 (Tex. Crim. App. 1999).......................................................................... 7

Ex parte Garcia,
  353 S.W.3d 785 (Tex. Crim. App. 2011). .......................................................................... 7

Ex parte Perez,
  398 S.W.3d 206 (Tex. Crim. App. 2013) ................................................................ 7, 8, 14

Ex parte Smith,
  444 S.W.3d 661 (Tex. Crim. App. 2014) .......................................................................... 2

Ex pate Scott,
  190 S.W.3d 672 (Tex. Crim. App. 2006) .........................................................................13

Scheanette v. State,
  144 S.W.3d 503 (Tex. Crim. App. 2004).........................................................................17

Strickland v. Washington,
  466 U.S. 668 (1984) ..............................................................................................................15




                                                                 iii
STATUTES

TEX. PENAL CODE
  §49.09(a) (West 2013) ........................................................................................................13


RULES

TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................................... i
TEX. R. EVID. 608(b)..................................................................................................................17




                                                                  iv
TO THE HONORABLE COURT OF APPEALS:


            STATEMENT OF THE CASE & PROCEDURAL HISTORY

      Appellant, Richard Mark Bowman, was found guilty of driving while

intoxicated (DWI) in 2005.         (RRIV —Ex. 1).        Pursuant to a punishment

agreement, the trial court sentenced appellant to 180 days’ confinement, probated

for one year, and assessed an $800 fine. (RRIV —Ex. 13 at 237, 240-41). While

appellant originally appealed his conviction, his motion to dismiss the appeal was

granted in January 2006. See No. 01-05-00106-CR. Appellant was successfully

discharged from his probation in 2007.

      In April 2013, appellant was arrested and charged with another DWI. The

charge was enhanced with his 2005 conviction, making it a DWI second offender.

(RRIV —Ex. 1). Only after his second offender arrest did appellant file an

application for writ of habeas corpus, alleging that his trial counsel was ineffective

in 2005. After a hearing on the writ, with testimony from his 2005 trial counsel,

the trial court denied appellant habeas relief. (CR at 4, 85; RRIII at 22). Findings

of fact and conclusions of law were entered. (CR at 100). Appellant timely

appealed the trial court’s denial of habeas relief. (CR at 115).

      On June 5, 2014, this Court issued a published opinion finding (1) the Court

of Criminal Appeals’ opinion in Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App.


                                           1
2014) would be inapplicable to an 11.072 writ, (2) the State failed to preserve the

appellate court’s consideration of the doctrine of laches by failing to assert the

doctrine in the trial court; and (3) despite the trial court’s denial of habeas relief,

the trial court’s findings do not support that trial counsel’s defense strategy was

informed by a reasonable pre-trial investigation.         This Court then granted

appellant habeas relief and set aside the 2005 judgment of conviction. See Ex parte

Bowman, No. 01-13-01045-CR (Tex. App. —Houston [1st Dist.] June 5, 2014) (op.

withdrawn on denial of reh’g).

      The State filed a motion for rehearing and a motion for rehearing en banc on

June 13, 2014, with the following grounds: (1) asking the court to delete harmful

and baseless dicta indicating that how the doctrine of laches might apply to an

11.07 writ would not be applicable to an 11.072 writ; (2) noting the court erred in

holding the State waived the application of the doctrine of laches when the State

was the prevailing party at the writ hearing, and the court of appeals, therefore,

was permitted to uphold the ruling on any legal theory, including the doctrine of

laches, regardless of the State’s failure to raise the issue at the hearing; (3) noting

the court erred in reversing the trial court’s ruling on an issue never raised by the

losing party at the writ hearing when the appellant argued, and the trial court

ruled, on whether trial counsel was ineffective for failing to cross-examine the

officer with his payroll record, not whether he was ineffective for failing to do an


                                          2
adequate pretrial investigation; and (4) pointing out it was error to find appellant

was prejudiced by his trial counsel’s failure to use a document he testified he

would not have used and that is inadmissible under the rules of evidence.

      On August 26, 2014, this Court denied the State’s motion for rehearing,

withdrew its earlier opinion, issued a new, yet unsubstantially different, published

opinion, and “dismissed as moot” the State’s motion for rehearing en banc. See Ex

parte Bowman, 444 S.W.3d 272 (Tex. App. —Houston [1st Dist.] 2014) (op. on

reh’g), pet. granted, judgm’t vacated, 447 S.W.3d 887 (Tex. Crim. App. 2014).

      On petition for discretionary review, the Court of Criminal Appeals

simultaneously granted and delivered its opinion, vacating this Court’s opinion, on

the State’s following issue on November 19, 2014:

            Second:      Does the State have to argue laches at an article
                         11.072 hearing, in which the State was the
                         prevailing party, to preserve the equitable doctrine
                         for review on appeal?

Relying on its opinion in Ex parte Smith, the Court of Criminal Appeals held that

“equity and fairness[,] applies to any habeas case” and “the State is correct that

laches applies to Art. 11.072.” See Ex parte Bowman, 447 S.W.3d 887, 888 (Tex. Crim.

App. 2014). The Court further concluded that “[the State’s] laches argument was

not waived.” See id. Accordingly, the Court of Criminal Appeals, as it did in Ex




                                         3
parte Smith, vacated this Court’s opinion and remanded this case to this Court to

“remand to the trial court for a hearing on the laches issue.” See id. at 888-89.

       The Court of Criminal Appeals “dismissed without prejudice” the following

two issues:

                  First:   The First Court of Appeals erred in finding
                           appellant’s trial counsel ineffective for
                           failing to obtain a document he testified he
                           strategically would have chosen not to use,
                           contained information he knew and
                           utilized, and that was a document
                           inadmissible under the rules of evidence.

                  Third:   The First Court of Appeals erred in failing
                           to find laches barred appellant habeas relief
                           and supported the trial court’s ruling.


See id. at 889.

       On January 27, 2015, this Court abated this case to the trial court, where a

hearing on the laches issue took place on March 2, 2015. At the conclusion of the

hearing, the trial court found: (1) appellant’s delay in waiting to file his habeas

claim was unreasonable because it was sought now only to void his first DWI

where he faced a minimum of thirty days in jail upon his second DWI charge; (2)

while appellant consulted with three attorneys (Michael Pena, Troy McKinney,

and Brian Wice) after his first DWI conviction in 2005, he relied on their advice;

and (3) the State was prejudiced by appellant’s delay due to the unlikelihood the

State could get a conviction on a misdemeanor DWI on facts now over ten years
                                           4
old. (LHII at 149). The trial court concluded appellant was not entitled to

equitable relief. (LHII at 149).

                           ♦


                      SUMMARY OF THE STATE’S ARGUMENT

         While appellant initially argued his trial attorney at his conviction on this

case, Ned Barnett, was ineffective for failing to obtain Officer Lindsey’s payroll

records when “no reasonably competent lawyer [in 2005] would have gone to trial

in a case involving Lindsey without first obtaining his payroll and disciplinary

records,”1 he now asks this Court to find that the three attorneys who reviewed

this case post-conviction in 2005 let him down since they failed to see what “all

reasonably competent lawyers” were supposed to know, and bring an ineffective-

claim against Barnett, and were thus the reason for his delay in seeking habeas

relief. Upon appealing the denial of habeas relief before this Court last year, Wice

continuously argued “no reasonably competent lawyer” would have failed to get

Lindsey’s payroll record back in 2005; yet, he now claims he is the exception,

because although he was one of the attorneys who reviewed appellant’s trial

record for purposes of filing a writ back in 2005, he did not know about Lindsey’s




1
    See “Brief for Appellant” at 22, authored by Wice and Randy Schaffer.

                                              5
overtime pay back then. 2 Appellant cannot have it both ways in order to succeed

on one claim and defeat another.

      The record shows the only reason appellant sought habeas relief over seven

years later was to “get rid” of the conviction so it would not enhance his second

DWI charge. Because the bases of appellant’s ineffective-assistance claim is either

without merit or barred by the equitable doctrine of laches, the trial court never

abused its discretion in denying appellant his requested relief.

                        ♦


                 STATEMENT REGARDING ORAL ARGUMENT

      Because the applicable law is clearly stated in the Court of Criminal

Appeal’s remand to this Court, see Ex parte Bowman, 447 S.W.3d at 888, and because

the laches hearing in the trial court thoroughly addressed the issues to be

considered, another argument involving the exact same issues is unnecessary for

this Court’s review of the trial court’s findings.

                        ♦




2
  See “Appellant’s Post-Abatement Brief” at 12, also authored by Wice and Schaffer
(“Wice, who handles post-conviction cases, did not know about Lindsey in 2005…
[because] McKinney did not tell Wice about Lindsey’s overtime pay scam, and Wice did
not know about it because he did not try DWI cases.”).

                                           6
          STATE’S REPLY TO APPELLANT’S GROUND FOR REVIEW

      Appellant argues the trial court abused its discretion in finding that laches

precluded him from receiving habeas relief. Because appellant’s delay in seeking

habeas relief was unreasonable and would have never happened were it not for his

second DWI arrest (and thus inexcusable), because the State would be prejudiced

in retrying a case over ten years old, and because appellant has now made it

abundantly clear that only “some” and not “all” reasonably competent attorneys

would have used Officer Lindsey’s payroll record in an attempt to discredit him,

the trial court has not abused its discretion in denying appellant habeas relief.

                              APPLICABLE AUTHORITY

      A trial court’s denial of habeas corpus relief is reviewed for an abuse of

discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011). An Article

11.072 writ, like any habeas case, is governed by the elements of equity and

fairness. See Ex parte Bowman, 447 S.W.3d at 887. The Court of Criminal Appeals

has recognized that the doctrine of laches can bar habeas relief when the State is

harmed as a result of an unreasonable delay in pursuing a habeas claim. See Ex parte

Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999); see also Ex parte Perez, 398

S.W.3d 206, 215 (Tex. Crim. App. 2013) (reaffirming Carrio’s holding that Texas



                                          7
courts may apply the common-law doctrine of laches in determining whether to

grant habeas relief).

       In Ex parte Perez, the Court abandoned the federal laches standard in favor of

the common-law standard in order to “incorporate all forms of prejudice” viewed

in light of the “totality of the circumstances.” See id., at 208. Under the common-

law standard, no “particularized showing of prejudice” is required, which allows

courts to consider prejudice more “broadly.” Id. at 215. The standard broadens the

definition of prejudice to include “anything that places the State in a less favorable

position,” including “prejudice to the State’s ability to retry a defendant.” Id.

       The extent of the prejudice that the State must prove bears an inverse

relationship to the length of the appellant’s delay. Id. at 217. The longer an

appellant delays filing an application, the less evidence the State must show to

demonstrate prejudice. Id. at 217-18 (reasoning that the longer a case has been

delayed, the more likely it is that the reliability of a retrial has been compromised).

This is especially true when defendants delay for “much more than five years after

conclusion of direct appeals.” Id. A delay longer than five years “may generally be

considered unreasonable in the absence of any justification for the delay.” Id. at

261 n. 12.

       In reviewing the sufficiency of the evidence to support a laches bar, courts

should consider the following: (1) the length of the defendant’s delay in requesting
                                           8
equitable relief; (2) the reason for the delay; (3) the degree and type of prejudice

bore by the State because of the delay; and (4) if the delay should be excused. See

Ex parte Bowman, 447 S.W.3d at 888 (quoting Ex parte Smith).

                                         ANALYSIS
A. Equitable Relief is Barred by Laches

      1. Unreasonable & Inexcusable Delay

         Appellant delayed longer than five years. A jury found appellant guilty of

DWI on January 11, 2005. (CR at 21). While appellant originally appealed that

conviction, his motion to dismiss the appeal was granted on January 12, 2006, and

the appellate court issued mandate one day later.         See No. 01-05-00106-CR.

Appellant’s habeas application, filed September 30, 2013, sought relief based on

counsel’s performance roughly seven years earlier and now over ten years ago.

         Appellant’s explanation for the delay was that “three lawyers told him in

2005 that there were no grounds for relief.” 3 Thus, he did nothing until his second

DWI arrest. And, because this conflicts with his argument that all competent

attorneys would have known to use Lindsey’s payroll record to cross-examine him,

he attempts to offer a reason why each one failed to challenge Barnett, via a habeas

proceeding, for not utilizing the payroll record:



3
    Appellant’s Post-Abatement Brief at 3.
                                             9
         • Michael Pena: dismissed appellant’s appeal, and Wice testified
           he agreed that “Barnett did not preserve any appellate issues”
           (LHII at 67);

         • Troy McKinney: a “DWI guru” according to Wice, failed to file
           a writ based upon ineffective assistance because of his
           relationship with Barnett and failed to disclose that to
           appellant (LHII at 66); and

         • Brian Wice: although “every reasonably competent lawyer”
           knew to use Lindsey’s payroll, not Wice, because he did not try
           DWI cases and McKinney failed to tell him about Lindsey’s
           payroll scam (LHII at 66).


      First, the record shows that appellant only attempted to insinuate why

McKinney did not file an ineffective assistance claim against Barnett, through

Barnett’s testimony. (LHII at 55-60). Appellant did not call McKinney to testify,

the State did. Either way, both Barnett and McKinney testified that they were not

good friends and did not practice business together. (LHII at 55-60, 117-29). In

2005, however, McKinney’s firm (with Stanley Schneider) allowed Barnett to rent

a space for one of Barnett’s associates, who was already in that space when he

hired her. (LHII at 55-57, 119). Additionally, both men’s firms had a joint venture

in creating a website for sex cases that never involved handling a case together.

(LHII at 57-58, 119). McKinney testified he has filed writs on friends before and

has declined to be involved in writs based upon his relationship with the trial

attorney. (LHII at 125). While his memory on this case specifically has faded, he



                                        10
further testified he “always” discloses to his clients any conflicts that exist. 4 (LHII

at 128). When asked about Lindsay’s overtime pay reputation in 2005, McKinney

testified:

             I don’t know that it was widely known among the criminal
             defense bar in general. I think most of the people who did DWI
             defense knew about overtime of everyone on the task force,
             whether they knew specifically about Lindsey or not.

(LHII at 121). While appellant prays this Court will believe the only reason

McKinney failed to file an ineffective assistance of counsel claim against Barnett

via a habeas proceeding was because of their relationship, the record fails to

support that claim.

       Second, either Wice was incompetent in 2005 or not everyone knew to use

Lindsey’s payroll record against him in 2005. It cannot be both ways to garner

habeas relief on the same case (one way to succeed on appellant’s claim and the

other to defeat the State’s defense). The pinnacle of appellant’s claim from the

beginning was that Barnett failed to do what “all reasonably competent lawyers”

would have done in 2005. Yet, McKinney, who was, and still is, a “DWI guru,” did

not file an ineffective assistance of counsel claim against Barnett for failing to do

so, and testified he was not sure how well known Lindsey’s scam was back in

2005. (LHII at 121). And, of course, Wice did not catch it as an issue to bring on

4
  “There have been occasions when people have come to me and because of the lawyer
involved I did not want to be involved with the writ. That was always dealt with up
front before I accepted any money to investigate the case.” (LHII at 124).
                                          11
habeas, no matter what his excuse,5 when “all reasonably competent lawyers”

were supposed to know it in 2005. In fact, when asked on cross-examination

about his prior claim that “everyone knew about [Lindsey’s] overtime,” Wice

answered, “I don’t know about everybody, and I don’t know to what extent

everybody knew about it.” (LHII at 74). 6

      The record clearly establishes that not all attorneys knew about Lindsey’s

overtime scam nor used his payroll record against him in trial. Pena, McKinney,

and Wice were not incompetent and did not let appellant down in 2005. By

actually cross-examining Lindsey about his overtime pay in appellant’s trial in

2005, Barnett knew more than Wice did at the time (yet was found ineffective by

this Court). Appellant knowingly acquiesced to all three attorneys informing him

he had no grounds to appeal nor to attack on a post-conviction writ of habeas

corpus.

      Third, when asked how he got involved in this case in 2013, Wice testified:

             I got a phone call from someone at Rusty Hardin’s office asking
             me to talk to Mr. Bowman about whether there was anything


5
 While Wice testified he did not try DWI cases, he clarified on cross-examination that
he sat as second chair on a few DWI cases, including one with Barnett, and may have
even taken a witness “that couldn’t hurt us.” (LHII at 71).
6
  Furthermore, although rarely successful on direct appeal, Pena could have still
challenged Barnett’s effectiveness on direct appeal; instead, he dismissed the appeal (and
presumably did not see what “all reasonably competent lawyers” were deemed to know
at the time).

                                           12
             that could be done, given the fact that he had been arrested and charged
             as a second offender in his second DWI case.

(LHII at 68). Appellant confirmed this by testifying he hired Wice in 2013 after

his lawyer on his second DWI charge recommended he contact Wice to see if he

could get his first DWI set aside. (LHII at 88). Schaffer even argued to the Court

that appellant “was trying to do what his lawyer said, get rid of the first DWI so it

don’t hurt you in the second.” (LHII at 112). No defendant should be able to sleep

on his rights until another arrest, then decide he needs to “get rid” of the first

arrest so he will not be punished as the legislature has planned upon subsequent

arrests. That is not an excusable delay. The State and the society have a legitimate

interest in the finality of a long-standing conviction. Ex parte Perez, 398 S.W.3d at

218. Further, courts should not condone a practice of sullying an attorney’s

reputation many years after convictions are final. See Ex pate Scott, 190 S.W.3d 672,

673-77 (Tex. Crim. App. 2006) (Cochran, J., concurring). The record supports the

trial court’s ruling that appellant filed this habeas claim seven years later, only

because he wanted to void his first DWI when he was looking at a minimum of

thirty days in jail upon a second DWI conviction. (LHII at 149). See TEX. PENAL

CODE §49.09(a) (West 2013).




                                            13
   2. State is Prejudiced by Appellant’s Unreasonable & Inexcusable Delay

      Even though a “particularized” showing of prejudice is no longer required,

the delay clearly caused memory lapses in the testimony of the witnesses. All

three officers involved in appellant’s arrest in 2004 had no independent

recolleciton of appellant’s case. (LHII at 21-30, 35-38, 41, 46-47). While they

could regurgitate what they testified to at the prior trial, it would not be from a

memory of the day of his arrest. Appellant’s attorneys still have possession of the

only functioning copy of the scene video of his arrest. Given the “sliding scale”

approach, appellant’s unreasonable delay supports a finding of prejudice to the

State to try the case over ten years after appellant’s arrest. See Ex parte Perez, 398

S.W.3d at 215.

      The trial court did not abuse its discretion in concluding that appellant was

barred from habeas relief under the equitable doctrine of laches.

B. Ineffective Assistance of Counsel Claim is Without Merit

      Given the new evidence offered at the second hearing on this habeas

request, the State urges this Court to reconsider its prior conclusion that Barnett

was ineffective in failing to do what “all reasonably competent lawyers” would

have done in 2005. It is impossible to ignore that the hearing on laches brought

forth contrary evidence to appellant’s argument that Barnett’s representation fell

below that of a reasonably competent attorney.

                                         14
      Under the first prong of Strickland, appellant must show that his counsel’s

performance was deficient to the extent that counsel failed to function as

“counsel” guaranteed by the Sixth Amendment, not that he failed to do what

“some” attorneys might have done. See Strickland v. Washington, 466 U.S. 668, 687

(1984). Appellant initially argued to the trial court, and this Court, that Barnett

was ineffective for failing to use Lindsey’s payroll record to show the officer had an

incentive to make arrests. Appellant presented affidavits from three criminal

defense lawyers who claimed no reasonably competent lawyer would have gone to

trial on a case involving Lindsey without first obtaining his payroll and

disciplinary records. (CR at 31-41, Exs. 7-9). Appellant offered the officer’s payroll

record to show he frequently made more in overtime pay than in his regular salary.

(CR at 6, Ex. 2).

      Barnett testified he elicited from Lindsey that he received time-and-a-half

pay to be at the courthouse on his cases and that he made 476 arrests alone in

2004. (RRII at 20-21, 24, 39). Barnett also testified he strategically decided not to

“beat up” on the officer because, in his experience, it could alienate the jury. (RRII

at 26, 30, 35). He further testified he wanted the jury not to focus on the officer,

but on appellant’s adequate performance on the video. (RRII at 12, 35, 47-48).

      The trial court found that trial counsel “did not know whether he had the

information regarding Lindsey’s overtime pay at the time of [appellant’s] trial but


                                         15
that, even if he did, he would not have used it,” trial counsel did not have Lindsey’s

payroll record at the time of appellant’s trial in 2005, and “[s]ome criminal defense

lawyers would obtain Lindsey’s HPD payroll records” and “impeach him…to

demonstrate his financial motive for making DWI arrests.”           (CR at 105-07).

Ultimately, the trial court concluded that eliciting the number of arrests the officer

made the previous year, and that he was paid time-and-a-half for overtime to

testify in court, “did give the jury sufficient information to assess [the officer’s]

financial motivation,” and trial counsel “acted within [ ] the accepted practice of a

reasonable professional by choosing to impeach Officer Lindsay to the degree he

did.” (CR at 107).

      The record now shows, more so than before, that only “some” attorneys

would have obtained Lindsey’s payroll record to use against him in 2005. Pena,

McKinney, and Wice would not have done it in 2005. Wice would not have even

crossed Lindsey about his overtime pay. Barnett investigated enough to be aware

of the overtime pay incentive by Lindsey. That he did not do what “some defense

attorneys” did (or on appeal, would have done in retrospect), does not amount to

ineffective assistance of counsel. Giving the jury an exact number of “overtime

pay,” that was not exclusively based upon time in the courtroom due to DWI




                                         16
arrests, 7 is merely a more aggressive route to take and one that could potentially

alienate the jury. Because appellate counsel (Schaffer, not Wice) would have

obtained and used the officer’s payroll record to cross-examine him, does not make

Barnett’s strategic decisions deficient. See Scheanette v. State, 144 S.W.3d 503, 509

(Tex. Crim. App. 2004).

      Moreover, despite the trial court’s ruling that it would have allowed trial

counsel to use the record, it would have been inadmissible under rule 608(b). It is

impermissible to use extrinsic evidence to attack a witness’s credibility with

specific instances of conduct, other than the conviction of a crime, unless the

witness has testified about these matters in a manner inconsistent with the

evidence sought to be introduced. See TEX. R. EVID. 608(b). Officer Lindsey

testified to the number of arrests made the prior year and that he was paid

overtime for testifying in court on those arrests. Nothing about his testimony was

inconsistent with his payroll record. Appellant, therefore, was not prejudiced by

his trial counsel’s failure to use a document that he testified he would not have

used and that the rules of evidence deem inadmissible.

      The trial court did not abuse its discretion in denying appellant habeas relief

based upon his ineffective assistance of counsel claim.


7
  Officer Lindsey testified he worked an intersection “off duty” (thus, “overtime” pay)
that morning. (RRIV —TT at 145).

                                          17
C. Conclusion

      Because the bases of appellant’s ineffective-assistance claim is either

without merit or barred by the equitable doctrine of laches, the trial court never

abused its discretion in denying appellant his requested relief.

                         ♦


                                      PRAYER

      The State respectfully requests this Court affirm the trial court’s ruling,

denying appellant habeas relief.




                                                   DEVON ANDERSON
                                                   District Attorney
                                                   Harris County, Texas



                                                   /s/ Bridget Holloway

                                                   BRIDGET HOLLOWAY
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin Suite 600
                                                   Houston, Texas 77002
                                                   (713) 755-5826
                                                   Texas Bar No. 24025227
                                                   holloway_bridget@dao.hctx.net



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       CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE

      This is to certify: (a) that the word count of the computer program used to

prepare this document reports that there are 4454 words in the document; and (b)

the undersigned attorney requested that a copy of this document be emailed

through TexFile to the following email on May 18, 2015:



      Randy Schaffer
      Attorney at Law
      Email: noguilt@swbell.net

      Brian Wice
      Attorney at Law
      Email: wicelaw@att.net




                                                /s/ Bridget Holloway

                                                BRIDGET HOLLOWAY
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                Texas Bar No. 24025227
                                                holloway_bridget@dao.hctx.net




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