Appellant’s Motion for Rehearing Overruled; Opinion of August 7, 2012
Withdrawn; Affirmed as Modified; Substitute Majority and Concurring
Memorandum Opinions filed October 25, 2012.




                                          In The


                       Fourteenth Court of Appeals

                                  NO. 14-11-00727-CR
                                  NO. 14-11-00728-CR
                                  NO. 14-11-00729-CR


                     SAMUEL WADE HENDERSON, Appellant,
                                             V.
                          THE STATE OF TEXAS, Appellee.

                       On Appeal from the 228th District Court
                                   Harris County
                  Trial Court Cause Nos. 1315583, 1315584, 1315585


             CONCURRING MEMORANDUM OPINION

       The majority correctly disposes of appellant’s second and third issues. I write
separately to address the deficient-performance prong of appellant’s first issue
concerning his claim that his trial counsel was ineffective during the guilt-innocence
phase of his trial. The majority concludes that, because the record is silent regarding trial
counsel’s strategy, appellant has not shown that his counsel’s conduct was so outrageous
that no competent attorney would have engaged in it. See ante, at 7–8. The majority
opines that “a reasonable strategic motivation can be gleaned from the record,” i.e., that
appellant’s counsel “attempted to advance a strategy to discredit what arguably could
have been the most damaging evidence—the DNA evidence linking Henderson to one of
the crimes.” See id. I do not agree that a reasonable strategic motivation for counsel’s
performance can be gleaned from this record. However, because I join the majority’s
analysis concluding that appellant was not prejudiced by his counsel’s actions, I
respectfully concur.

       The performance at issue here concerns trial counsel’s statements during opening
argument in which counsel informed the jury that police investigators discovered
appellant’s DNA at “an alleged rape in October of 2000 — of 1990,” but that appellant
could not have committed that offense because, at the time, he was “incarcerated.” In
effect, appellant’s trial counsel described two extraneous offenses linked to appellant
during his opening argument: (1) a sexual assault that occurred in October of 1990
through which appellant’s DNA was identified; and (2) some other offense for which
appellant was incarcerated in 1990.

       But even the most cursory investigation would have revealed that trial counsel’s
“strategy” was doomed to failure: appellant was not incarcerated at the time of the
October 1990 sexual assault.1 Not only did appellant himself testify that he was not
incarcerated at this time, but this fact was proven by the testimony of one of the State’s
investigators, through a particularly damning series of questions posed on cross-
examination by appellant’s counsel:

             Q.     What was the original biological evidence that caused you to
       suspect Mr. Henderson? Where did it come from?


       1
         Trial “counsel has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Wiggins v. Smith, 539 U.S. 510, 521–22 (2003).
                                                 2
      A.    It came to my attention from Lieutenant Waterhall via the
Houston Crime Lab.

        Q.    And when was that biological — when — where did it come
from?

        A.    I don’t know where it came from, sir.

      Q.     Okay. Well, isn’t it true that it came from an alleged rape
case that occurred when Mr. Henderson was in prison that would be
impossible for him to have committed?

      A.    No that’s not true at all. And to my knowledge, Mr.
Henderson was not in prison at the time of the rape case that you’re
mentioning.

        Q.    Okay. What was the date of the rape case?

        A.    October of 1990, I believe.

        Q.      And he was — okay. And Mr. Henderson was in prison at
that time; is that correct?

        A.    To my knowledge, he was not. But —

        Q.    To your knowledge, he was not.

        Do you know whether he was in prison or not?

        A.      According to the records that I viewed Mr. Henderson was
free at that time.

        Q.    Okay. What records are you talking about?

        A.    His criminal history records from the Texas DPS database.

        Q.    Do you have — do you have access to those records?

        A.    I do.

       Q.     Okay.   And you will — how can I get access to those
records?

        A.    How?

        Q.    Yes.
                                     3
                  A.      I believe our prosecutors have a copy.2

        When we have no direct evidence regarding counsel’s motivations, we must
assume that counsel had a strategy if any reasonably sound strategic motivation can be
imagined. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). Under the facts
of this case, however, I cannot imagine any reasonably sound strategic motivation for
appellant’s trial counsel to inform the jury of appellant’s possible involvement in two
extraneous offenses. In fact, one of these offenses—sexual assault—is of a similar nature
to the offense for which appellant was on trial. Appellant’s counsel did not simply fail to
object to inadmissible evidence;3 instead, appellant’s counsel referenced this inadmissible
evidence in his opening argument and then elicited evidence that his stated defensive
“strategy” was not true. I believe that this is one of those rare cases in which trial
counsel’s deficient performance is apparent from the record. Lopez, 343 S.W.3d at 143.

        Although I do not join the entirety of the majority’s analysis regarding appellant’s
first issue, I respectfully concur in the court’s decision to overrule appellant’s ineffective
assistance of counsel challenge and affirm the judgment of the trial court.




                                                  /s/       Adele Hedges
                                                            Chief Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Brown. (Brown, J.,
Majority).
Do Not Publish — Tex. R. App. P. 47.2(b).




        2
            This investigator was recalled by the State to confirm that appellant was on parole in October
1990.
        3
          See Ex parte Menchaca, 854 S.W.2d 128, 132 (Tex. Crim. App. 1993) (concluding that there
was no strategic basis for permitting jury to hear testimony regarding applicant’s prior conviction for
similar offense).
                                                        4
