Opinion issued January 29, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-14-00182-CR
                           ———————————
                     WARIS NADIR SUBLET, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 262nd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1378742




                         MEMORANDUM OPINION

      A jury found Waris Nadir Sublet guilty of the offense of aggravated assault

with a deadly weapon. After pleading true to a prior offense, Sublet was sentenced

to thirty years’ confinement. On appeal, Sublet contends that he was deprived of
effective assistance of counsel when his counsel objected to a witness’s mention of

plea negotiations but failed to request an instruction to disregard the testimony and

move for a mistrial. We conclude that Sublet has failed to show a reasonable

probability that counsel’s error affected the outcome of the proceedings; we

therefore affirm.

                                   Background

       In October 2012, a man approached James Morris and Marshal Brock, who

were homeless and living behind a building.         Brock awoke when he heard

footsteps and saw the man, who wore a jumpsuit, blue baggy pants, and a “scary

movie mask.” The man slashed Morris, then Brock, several times with a machete.

Brock sustained injuries to his arms, hands, and neck. Morris sustained severe

injuries to his hands and a cut on his head and knee. All of the fingers on Morris’s

left hand and one on his right hand had been severed. Officer Hutto, one of the

police officers called to the scene, photographed several of the severed fingers and

blood evidence.

       On the following day, Officer Dorton stopped a van after the driver, Sublet,

failed to stop at a stop sign. Dorton detained Sublet and the passenger of the van,

towed the van, and conducted an inventory of it. A machete was located within the

van. Officer Dorton did not see any injuries or cuts on Sublet when he detained

him.



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      Officer Palatino, a crime scene investigator, searched for items within the

van and took photographs of them. She collected blood from the driver’s side door

panel. DNA analysis showed Brock was very likely to be the DNA contributor to

blood on the door panel. The machete blade had red-brown stains on it. DNA

analysis showed that Brock was very likely to be the major DNA contributor to

DNA collected from the blade and handle. James Morris was likely to be the

minor contributor to one of the blood stains.

      Officer Hernandez, who investigated the assault, visited the apartment where

Sublet resided sometimes, and received consent to search the apartment.

Hernandez found shoes with dried blood on them, blue shorts with a small amount

of blood on them, and camouflage coveralls.

      Sublet confessed to the crime and claimed self–defense in a conversation

with police officers, who had informed Sublet of his Miranda rights. The jury

heard an audio recording of the conversation. In the recording, Sublet stated that,

on the night of the crime, he approached Brock and James because they owed him

money. Sublet stated that he was wearing a camouflage jumper, a “Jason” mask

from the Friday, the 13th movies, and wore gloves so he would not get blood on

himself. He confessed that he went to the shopping center intending to harm the

victims. Sublet claimed that one of the victims had the machete and tried to attack

him with it. He said one of the victims punched him, and then he grabbed the



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machete from them and began to hit them. He stated that he did not remember

everything because he was on PCP at the time. He recalled striking at the victims’

faces and admitted that he may have hit their fingers as they tried to shield their

faces. Later in the conversation, Sublet stated that the victims were lying down on

the concrete when he initially approached them.

      During Sublet’s trial, the State proffered witness testimony from Adams,

who testified about a conversation he had with Sublet while he and Sublet waited

together in a police holdover room. Adams testified that Sublet confessed to him

that he committed the aggravated assault.

      The trial court instructed the jury on the issue of self–defense. The jury

found Sublet guilty of aggravated assault with a deadly weapon.

                                   Discussion

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

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

probability exists that the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Lopez

v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The first prong of this test

requires the defendant to show that counsel’s performance fell below an objective

standard of reasonableness, in that counsel made such serious errors that he was

not functioning effectively as counsel.       Id.   Thus, the defendant must prove



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objectively, by a preponderance of the evidence, that his counsel’s representation

fell below professional standards. Lopez, 343 S.W.3d at 142; Mitchell v. State, 68

S.W.3d 640, 642 (Tex. Crim. App. 2002).

      The second prong requires the defendant to show a reasonable probability

that, if not for counsel’s errors, the result of the proceeding would have been

different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Lopez, 343 S.W.3d at

142. A reasonable probability is “a probability sufficient to undermine confidence

in the outcome.” Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)

(citing Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986)).          In

reviewing counsel’s performance, we look to the totality of the representation to

determine the effectiveness of counsel. Lopez, 343 S.W.3d at 142–43; Ex Parte

Martinez, 330 S.W.3d 891, 903 (Tex. Crim. App. 2011). We consider whether the

defendant has shown by a preponderance of the evidence that counsel’s actions “so

compromised the proper functioning of the adversarial process that the trial court

cannot be said to have produced a reliable result.” Martinez, 330 S.W.3d at 901

(citing Strickland, 466 U.S. at 686, 104 S. Ct. at 2064). The possibility that

counsel’s deficiency might affect the proceedings is insufficient to show prejudice

under Strickland: “It is not enough for the defendant to show that the errors had

some conceivable effect on the outcome of the proceeding.” Kober v. State, 988




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S.W.2d 230, 232–33 (Tex. Crim. App. 1999) (quoting Strickland, 466 U.S. at 693,

104 S. Ct. at 2067).

      In Martinez, the Texas Court of Criminal Appeals considered a case in

which the defendant, convicted of murder, claimed ineffective assistance of

counsel under Strickland. 330 S.W.3d at 894, 901. The defendant contended that

her counsel failed to object to gang-related evidence that was inadmissible. Id. at

901. The court found that, even without the gang-related evidence, the remaining

evidence supported the jury’s guilty verdict. Id. The court found that “[i]t is

unlikely, in the face of all the evidence with which the jury was presented, that the

jury would have reached a different conclusion in the absence of the gang-related

evidence. . . .” Id. at 904.

      Sublet contends that his trial counsel was ineffective in responding to the

following testimony by Adams:

      Defendant’s counsel: And then you’re saying in the holdover right
      back there, he talked to you about the case?

      Adams: Yes.

      Defendant’s counsel: And now you’re saying that he just out of the
      blue admitted to you that he committed this crime?

      Adams: No, actually, when you came back there and riled him up
      saying that he needs to take the plea bargain that the Prosecutor —

      Defendant’s counsel: Objection, Your Honor.




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         The Court: Sustained. Listen carefully to [counsel’s] question and
         just answer the question that he asks.

Although counsel objected to Adams’s testimony, counsel did not request an

instruction to the jury to disregard the testimony, nor did he move for a mistrial.

Sublet contends that the testimony indicated to the jury that trial counsel believed

Sublet was guilty, severely compromising his defense.

         Even assuming that counsel erred in failing to pursue his objection by

requesting an instruction to disregard the statement and move for a mistrial, Sublet

fails to show that the outcome of the proceeding would have been different. The

State proffered abundant evidence of Sublet’s guilt, including his recorded

confession. DNA from bloodstains in Sublet’s car and from the machete found in

his car was later identified as Brock and Morris’s, with a very small chance of

error.

         The record also contains evidence that severely undermines Sublet’s self–

defense claim. In the recording provided to the jury, Sublet stated that on the night

of the crime, he went in search of the victims, wearing a camouflage jumper and a

“Jason” mask, intending to harm them. Sublet anticipated bloodshed, noting that

he wore gloves so he would not get blood on himself. Although Sublet claimed

that one of the victims had the machete and tried to attack him with it, he later

admitted that the victims were lying down when he first approached them. He




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recalled that the victims shielded their faces with their hands, as he attacked with

the machete.

       We hold that Sublet has failed to show a reasonable probability that, but for

counsel’s actions, the result of the proceeding would have been different. See

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Lopez, 343 S.W.3d at 142.

Accordingly, we hold that Sublet has failed to satisfy the second prong of an

ineffective assistance claim.

                                    Conclusion

       We hold that Sublet has not shown a reasonable probability that any error by

his counsel affected the outcome of his trial. We therefore affirm the judgment of

the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




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