Ex Parte Desean Laverne McPherson ( 2022 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00092-CR
EX PARTE DESEAN LAVERNE MCPHERSON
On Appeal from the 6th District Court
Lamar County, Texas
Trail Court No. 27362
Before Morriss, C.J., Stevens and Carter,* JJ.
Memorandum Opinion by Justice Stevens
___________________________________
*Jack Carter, Justice, Retired, Sitting by Assignment
MEMORANDUM OPINION
Desean Laverne McPherson was convicted of tampering with or fabricating physical
evidence and was sentenced to ten years’ incarceration, suspended in favor of five years’
community supervision. On direct appeal from that conviction, this Court affirmed the trial
court’s judgment. See McPherson v. State, No. 06-18-00218-CR, 2019 WL 2220119, at *4 (Tex.
App.—Texarkana May 23, 2019, no pet.) (mem. op., not designated for publication). Thereafter,
McPherson filed an application for a writ of habeas corpus in the trial court pursuant to Article
11.072 of the Texas Code of Criminal Procedure, claiming ineffective assistance of trial and
appellate counsel. See TEX. CODE CRIM. PROC. ANN. art. 11.072. The trial court denied the writ,
and this appeal ensued.
I. Factual and Procedural Background
The evidence at trial showed that Trooper Michael Townes of the Texas Highway Patrol
stopped McPherson for speeding after McPherson sped past Townes in his truck going eighty-
four miles per hour (m.p.h.) in a seventy-five-m.p.h. zone. McPherson, 2019 WL 2220119, at
*1. “Attempting to stop the truck, Townes turned on his patrol car’s overhead lights and pulled
his patrol car behind the truck . . . .” Id. McPherson eventually moved to the shoulder of the
road but continued traveling there for approximately one or two miles. As Townes followed
McPherson on the shoulder of the road, he noticed some brown objects fly out of the truck’s
window and hit the windshield of his patrol vehicle. At that point, Townes activated the siren
“to mark the location of where it initially happened.” The truck stopped shortly thereafter. After
issuing McPherson a citation for speeding, Townes “turned around and went back to the area
where [he saw] the objects fly out and went to look[] on the shoulder and in the bar ditch as far
2
as the objects that . . . [he] had seen thrown out, and [he] discovered . . . five joints and one little
short one that would have been smoked.” Townes identified the objects as marihuana wrapped
in brown cigar paper.
The dash camera recording from Townes’s patrol vehicle reflects that, when Townes
returned to the area where the objects hit his windshield, he exited his vehicle at 2:10 p.m.
Approximately eight seconds later, he picked up the first object. Townes’s testimony relative to
that discovery was that, once he “step[ped] out of the car, immediately right there on the
shoulder where [he sat] there[] [was] one [joint] on the shoulder.” Approximately seventeen
seconds later, he picked up the second object. Approximately ten seconds after that, he picked
up the third object. Townes located the discarded objects, which he described as “joints,” in less
than forty seconds, the first having been located after eight seconds. After having found those
objects, Townes pulled his car up a few feet and searched for additional objects for less than a
minute. The recording does not reflect any additional discoveries. Townes returned to his
vehicle, bagged the evidence, and placed it in the trunk of his vehicle.
A different view from the front dash camera shows Townes in front of his vehicle
displaying five “cigarillo joints” described by Townes as four to five inches long, with the
circumference of a pencil, and one smaller blunt. The State’s exhibit six depicts one of the
objects thrown from McPherson’s truck in mid-air, as captured by Townes’s dash camera. The
State’s exhibit seven shows another such discarded object in mid-air, headed for Townes’s
windshield. According to Townes, he “saw the brown cigarillo hit the windshield right in front
of [him].” Townes testified that those were “cigarillos” that McPherson threw from the driver’s
side window of his car. They could not have been “random cigarillos thrown out [of somebody
3
else’s] window” because Townes saw “them thrown out of the driver’s window, hitting the
windshield of [his vehicle].”
On direct appeal, McPherson claimed that the evidence was legally insufficient to support
his tampering conviction because the State failed to prove that he knew a law enforcement
investigation was in progress at the time Townes saw the objects thrown from the truck. This
Court affirmed the conviction based on that single point of error.
A. Application for a Writ of Habeas Corpus
In his application for a writ of habeas corpus, McPherson claimed that his trial and
appellate attorneys were ineffective because they failed to argue, in their motion for directed
verdict and on appeal, that tossing contraband out of a car and onto the shoulder, where the
contraband was easily retrieved, is not “concealment.”1 McPherson claimed that, in failing to
argue that he did not conceal anything, counsel was “apparently unaware that, in Stahmann v.
State, 548 S.W.3d 46, 57 (Tex. App.—Corpus Christi 2018, pet. granted), delivered some ten
months before trial, the Corpus Christi Court of Appeals explained that ‘[a]ctual concealment
requires a showing that the allegedly concealed item was hidden, removed from sight or notice,
or kept from discovery or observation.’” McPherson claimed that, because trial and appellate
counsel failed to research the law as to what the State must prove to show that a person
1
Section 37.09 of the Texas Penal Code defines the offense of tampering with or fabricating physical evidence as
follows:
(a) A person commits an offense if, knowing that an investigation or official proceeding is
pending or in progress, he:
(1) alters, destroys, or conceals any record, document, or thing with intent to impair
its verity, legibility, or availability as evidence in the investigation or official proceeding . . . .
TEX. PENAL CODE ANN. § 37.09(a)(1) (Supp.).
4
concealed evidence, counsel performed deficiently and that he was thereby prejudiced. The trial
court denied the petition.
On appeal, this Court initially remanded the case to the trial court for additional fact-
finding because the trial court denied the petition without addressing McPherson’s claim of
ineffective assistance of appellate counsel—instead only finding that trial counsel—who had
since passed away and could not explain his reasoning—was not ineffective. This appeal is
limited to the issue of whether McPherson’s appellate counsel was ineffective.
B. Affidavit of Appellate Counsel
In an affidavit filed by order of the trial court, appellate counsel 2 explained that he chose
not to argue that McPherson did not conceal anything for the following reasons:
• “The Defendant testified at the trial and denied emphatically that he knew
anything about the contraband introduced at trial and the exhibits admitted in
support of the State’s case. The Defendant never admitted to his counsel at any
time that he had possessed the contraband that was found by the officer.
Therefore, it seemed on appeal that insufficiency was the sole point of the appeal
and involved no other issues.”
• “Claiming that the State had failed to prove the element of concealment would
have been a useless issue since there is no question that the jury verdict would
have and did support the issue of concealment without Defendant admitting that
he did all of the acts with the contraband that were introduced at trial.”
• “There is no question that the Jury did find that Defendant committed all of the
acts alleged by the State at Trial. These findings will support a Jury finding of
actual concealment of the contraband by the Defendant. That is the difference in
this case and Stahmann, 548 S.W.3d 57. The Appeals Court in Stahmann said
that actual concealment involves showing that the contraband was hidden,
removed from sight or notice, or kept from discovery or observation. An
examination of the evidence at Defendant’s trial, if possession is admitted, shows
2
Appellate counsel also represented McPherson at trial as co-counsel. Because this appeal is limited to the issue of
whether appellate counsel was ineffective, those portions of the affidavit relating to decisions made at trial are not
recited here.
5
the contraband being thrown from Defendant’s vehicle while it was traveling 70
to 85 miles per hour on a rural highway with a stiff wind, bar ditches, long grass
in the median and adjacent houses to the highway and would suffice to show
actual concealment through the actions of the Defendant.”
• “The Court of Criminal Appeals in its decision on the State’s Petition for
Discretionary Review . . . agreed with the 13th District Court of Appeals
although the State argued that the Lujan case out of Amarillo supported a
conviction for tampering with evidence by concealment without successfully
concealing the contraband.”
• “There was no claim at any time by Defendant that he had the contraband in
question so that altering and controlling the contraband became an issue. The
Defendant chose which way to proceed and he is now looking for anything that
might change his previous choices. His original choice was claiming
insufficiency of the evidence claiming the State failed to show his possession of
the marijuana. If Defendant had admitted his possession of the marijuana, there is
no question that his subsequent actions would suffice to prove his actual
concealment of the marijuana.”
C. Trial Court’s Findings of Fact and Conclusions of Law
After having reviewed the application for a writ of habeas corpus, the State’s response to
the application, and the affidavit submitted by appellate counsel, the trial court issued findings of
fact and conclusions of law. The pertinent findings follow:
• “[McPherson] was charged . . . with the offense of Tampering with or Fabricating
Physical Evidence.”
• “Sajeel Khaleel represented [McPherson] as lead counsel at trial and was co-
counsel on appeal.”
• “R. Keith Walker represented [McPherson] as co-counsel at trial and was lead
counsel on appeal.”
• “The case was tried before a jury on November 8, 2018.”
• “At the conclusion of the State’s case-in-chief, Mr. Khaleel moved for a directed
verdict on unspecified grounds. The trial court denied the motion for directed
6
verdict. The jury subsequently found [McPherson] guilty as charged in the
indictment.”
• “[McPherson] filed a notice of appeal on December 26, 2018. [McPherson’s]
appellate brief was filed on March 19, 2019.”
• McPherson’s “[trial counsel] passed away on March 30, 2019[,] and the trial court
was notified of that by R. Keith Walker, Applicant’s lead appellate counsel.”
• “[McPherson] alleged in his Application for Writ of Habeas Corpus that
Mr. Walker provided ineffective assistance by failing to direct the appellate
court’s attention to the holding in Stahmann v. State, 548 S.W.3d 45 (Tex. App.—
Corpus Christi 2018).”3
• “The opinion in Stahmann was issued on January 4, 2018. A petition for
discretionary review was filed on July 6, 2018. The petition was granted by the
Court of Criminal Appeals on October 10, 2018. The opinion affirming the
appellate court was not rendered until April 22, 2020, approximately 17 months
after Applicant’s trial and approximately 11 months after the opinion affirming
Applicant’s conviction was issued.”
• “[A]t the time of [McPherson’s] trial and appeal,” Stahmann “was not directly
controlling precedent.”
• “Even if Stahmann were controlling precedent, the facts in Stahmann are
distinguishable from the facts in” this case.
• “In this case, [McPherson] was traveling at approximately 84 miles per hour and
continued traveling after throwing the evidence from his vehicle. . . . The trooper
noted his GPS coordinates to assist with returning to the location where the
evidence was thrown. . . . After conducting the traffic stop, the investigating
trooper returned to the area where the evidence had been thrown from
[McPherson’s] vehicle. . . . The trooper’s in-car video, admitted at trial, showed
the trooper searching a portion of the highway for the evidence. He eventually
recovered marihuana cigarillos from the highway shoulder and bar ditch. . . . The
evidence was therefore ‘removed from sight or notice.’”
• “[This] Court specifically finds that Mr. Walker’s performance was[ ]not
deficient.”
3
McPherson more broadly complained that appellate counsel did not argue that the State failed to prove the element
of concealment.
7
The trial court’s pertinent conclusions of law are as follows:
• “When the law is unsettled, it is not ineffective assistance of counsel to fail to take a
specific action on the unsettled issue. See State v. Bennett, 415 S.W.3d 867 (Tex.
Crim. App. 2013).”
• “Stahmann was unsettled law at the time of [McPherson’s] trial and appeal.
Appellate counsel was not ineffective for failing to raise or cite Stahmann on appeal.”
• McPherson “has failed to show that appellate counsel’s representation was
objectively unreasonable and that [he] was prejudiced by deficient representation.”
• “Appellate counsel was not ineffective.”
• “[McPherson] suffered no violation of due process.”
II. Standard of Review
“In Evitts v. Lucey, the Supreme Court held that the Due Process Clause of the Fourteenth
Amendment to the United States Constitution guarantees a criminal defendant the effective
assistance of counsel on appeal.” Ex parte Coy, 909 S.W.2d 927, 928 (Tex. Crim. App. 1995)
(per curiam) (orig. proceeding); see Ex parte Alvarez, 468 S.W.3d 543, 547 (Tex. Crim. App.
2015) (Yeary, J., concurring) (citing Evitts v. Lucey, 469 U.S. 387, 401 (1985)).4 Because a
claim of ineffective assistance of appellate counsel implicates due process rights, such a claim is
cognizable on a post-conviction habeas corpus application. See Ex parte Coy, 909 S.W.2d at 928(applicant denied due process right to effective assistance of counsel on appeal in violation of his
4
In Lucey, the Supreme Court recognized that this right was a function of due process:
In short, when a State opts to act in a field where its action has significant discretionary elements,
it must nonetheless act in accord with the dictates of the Constitution—and, in particular, in accord
with the Due Process Clause.
Evitts v. Lucey, 469 U.S. 387, 401 (1985). Although there is “no constitutional requirement that states provide an
avenue of direct appeal for criminal defendants,” “those states that do must afford the appellant the right to counsel
on appeal.” Alvarez, 468 S.W.3d at 547. Lucey “held this due process requirement would be but ‘a futile gesture
unless it comprehended the right to the effective assistance of counsel.’” Id. (quoting Lucey, 469 U.S. at 397).
8
Fourteenth Amendment due process rights under the Federal Constitution and Article 1, Section
10, of the Texas Constitution).
The applicant in a habeas corpus proceeding has the burden to prove his claims by a
preponderance of the evidence. See Ex parte Peterson, 117 S.W.3d 804, 818 (Tex. Crim. App.
2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.
Crim. App. 2007); In re Davis, 372 S.W.3d 253, 256 (Tex. App.—Texarkana 2012, orig.
proceeding). We generally review a habeas court’s decision on whether to grant habeas relief for
an abuse of discretion. See Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011);
Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).
We review the evidence in the light most favorable to the habeas court’s ruling, Kniatt,
206 S.W.3d at 664, and defer to the habeas court’s findings of facts and conclusions of law that
are supported by the record, “even when the findings are based on affidavits rather than live
testimony,” Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort Worth 2011, pet. ref’d); see
Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006). However, “an abuse of
discretion review . . . is not necessarily appropriate in the context of the application of law to
facts when the decision does not turn on the credibility or demeanor of witnesses.” Ex parte
Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999). Instead, when “‘the trial judge is not in an
appreciably better position than the reviewing court to make that determination,’ a de novo
review by the appellate court is appropriate.” Id. (quoting Guzman v. State, 955 S.W.2d 85, 87
(Tex. Crim. App. 1997)); see Ex parte Mello, 355 S.W.3d at 832 (“If the resolution of the
ultimate question turns on an application of legal standards, we review the determination
de novo.”); Ex parte Infante, 151 S.W.3d 255, 258–59 (Tex. App.—Texarkana 2004, no pet.).
9
Because the facts are undisputed and the trial court’s decision to deny relief did not turn on
witness credibility, we will review the trial court’s ruling under the de novo standard.
“A petitioner may establish a claim of ineffective assistance of counsel by proving, by a
preponderance of the evidence, that counsel’s performance fell ‘below an objective standard of
reasonableness’ and that such deficient performance actually prejudiced the defendant.”
Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012) (quoting Strickland v.
Washington, 466 U.S. 668, 688 (1984)).
III. Analysis
McPherson asserts that his appellate counsel was constitutionally ineffective in failing to
raise a point of error on appeal challenging the sufficiency of the evidence to prove the element
of concealment following his conviction of tampering with physical evidence. See TEX. PENAL
CODE ANN. § 37.09(a)(1). He claims that, had counsel raised this point of error, it is probable
that the outcome of the appeal would have been different. See Strickland v. Washington, 466
U.S. 668, 694 (1984) (“[D]efendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”).
A. Concealment and the Stahmann Standard
McPherson takes the position that, at the time of his direct appeal, proof of concealment
required successful concealment. In other words, he must have successfully concealed
something to be guilty of tampering with evidence by concealment. He, therefore, claims that
his appellate attorney should have argued that he did not conceal anything, in reliance on
Stahmann for the proposition that “concealment requires a showing that the allegedly concealed
10
item was hidden, removed from sight or notice, or kept from discovery or observation.”
Stahmann, 548 S.W.3d at 57.
In Stahmann, the Corpus Christi court decided the issue of whether Stahmann was guilty
of tampering with physical evidence after Stahmann discarded a pill bottle from his car after
having been involved in a two-vehicle accident. Id. at 51–52. Two witnesses saw Stahmann
throw the prescription medicine bottle over a fence near the accident scene. The witnesses
advised officers who arrived on the scene that they saw Stahmann throw something over the
fence, and they pointed out where it was. Id. at 52. The bottle was located by the officers sitting
on top of the grass on the other side of the fence. Id.
In considering whether the evidence was sufficient to show that Stahmann concealed the
pill bottle, the court stated that the term “conceal” may be generally understood as “to hide, to
remove from sight or notice, or to keep from discovery or observation.” Id. at 55 (citing
Thornton v. State, 401 S.W.3d 395, 398 (Tex. App.—Amarillo 2013), rev’d on other grounds,
425 S.W.3d 289 (Tex. Crim. App. 2014); Rotenberry v. State, 245 S.W.3d 583, 588–89 (Tex.
App.—Fort Worth 2007, pet. ref’d); Villarreal v. State, No. 13-15-00014-CR, 2016 WL
8919852, at *5 (Tex. App.—Corpus Christi Dec. 8, 2016, no pet.) (mem. op., not designated for
publication)).
Stahmann was not successful in concealing the contraband that had been in his
possession. Instead, the bottle landed in “some ‘shrubbery at the bottom’ of a tree.” Id. at 55.
The fence that he tossed the bottle over was a chain link fence, and the witnesses could see all
the way to the ground on the other side. Id. One witness “stated that he could see [the pill
bottle] ‘[as] plain as day right there in the—he tried to throw it in the brush, but it didn’t make
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it.’” Id. Likewise, the officer who arrived to investigate the accident “agreed that he was ‘able
to very clearly see’” the pill bottle, which he described as “sitting above the grass.” Id. at 55–56.
Under those facts, the court concluded, “There was not evidence from which a juror could have
reasonably inferred that the pill bottle was ever hidden, removed from sight or notice, or kept
from discovery or observation.” Id. (citing Thornton, 401 S.W.3d at 398; Thornton, 425 S.W.3d
at 307 (Keller, P.J., concurring) (“Whatever else ‘conceal’ might mean in the context of the
tampering with evidence statute, it at least means to remove from sight.”)). Instead of rendering
a judgment of acquittal, the appellate court “remand[ed] the cause to the trial court with
instructions to reform the judgment to reflect a conviction . . . of attempted tampering with
physical evidence, a state-jail felony.” Id. at 71.
In upholding Stahmann, the Court of Criminal Appeals rejected the State’s argument that
“conceal” meant to “remove from sight or notice, even if only temporarily” and that the item
concealed must be concealed from law enforcement. Stahmann v. State, 602 S.W.3d 573, 580–
81 (Tex. Crim. App. 2020) (emphasis added) (agreeing with appellate court that “[a]ctual
concealment requires a showing that the allegedly concealed item was hidden, removed from
sight or notice, or kept from discovery or observation”). The court stated that, even if it were to
assume that concealment must only be from law enforcement, the pill bottle was never concealed
from law enforcement. Id. at 580. The court also rejected the State’s reliance on Munsch v.
State, No. 02-12-00028-CR, 2014 WL 4105281 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.)
(mem. op., not designated for publication), and Lujan v. State, No. 07-09-0036-CR, 2009 WL
2878092 (Tex. App.—Amarillo Sept. 9, 2009, no pet.) (mem. op., not designated for
publication).
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In Munsch, an officer initiated a traffic stop at 10:00 p.m. of the car in which Munsch was
a passenger. Munsch, 2014 WL 4105281, at *1. A search of Munsch revealed several items of
drug paraphernalia and some cash. Id. Both the driver and Munsch were arrested, and Munsch
was taken to jail. The driver, though, told officers that, when she pulled over for the traffic stop,
Munsch had thrown methamphetamine packaged in a clear baggie out of the car window. Id. at
*2. Thereafter, the driver accompanied the two officers back to the location of the stop, where
the officers found a large baggie of methamphetamine in the ditch where the traffic stop
occurred. Id. at *3. Munsch was convicted, among other things, of tampering with physical
evidence. The appellate court agreed that Munsch concealed the methamphetamine from
investigating officers. Id. at *8.
Stahmann distinguished Munsch on the basis that the evidence established that it was not
until the driver was arrested and secured in the police cruiser that she told the officer about the
discarded methamphetamine, whereas the witnesses in Stahmann told officers about the
discarded pill bottle immediately. Stahmann, 602 S.W.3d at 581. And, even though the officer
in Munsch was told where the baggie had been thrown out, the officer had difficultly locating it
since it was dark and the package was thrown ten to fifteen feet out from the passenger-side
window. Id. at 580–81.
In Lujan, the appellant made a throwing motion while being stopped by an officer who
suspected a drug transaction. Lujan, 2009 WL 2878092, at *1. The officer then found a crack
pipe on the ground. The court noted that, even though the crack pipe was both intact and visible,
the jury could have lawfully inferred that Lujan attempted to prevent the pipe’s discovery by
throwing it away. Id. at *2. The Court of Criminal Appeals’s rejection of Lujan was based not
13
only on the fact that nothing was concealed in Lujan, but also on the basis that the Amarillo court
conflated the elements of intent and concealment. Those are “two distinct elements of the
offense and the Lujan court erred if it concluded otherwise.” Stahmann, 602 S.W.3d at 581.
Ultimately, the Stahmann court agreed with the Corpus Christi court that “[a]ctual concealment
requires a showing that the allegedly concealed item was hidden, removed from sight or notice,
or kept from discovery or observation.” Id. (quoting Stahmann, 548 S.W.3d at 57).
The Corpus Christi court’s version of Stahmann was issued in January 2018.
McPherson’s trial of conviction took place in November 2018, and his appeal was filed the
following month, eleven months after the Corpus Christi court issued its opinion in Stahmann.
There are no post-Stahmann cases in the appellate courts that contradict it. In fact, with Lujan as
the only real outlier,5 the appellate court cases addressing concealment in the context of
tampering with physical evidence adhere to a remarkably consistent definition of concealment,
as outlined below.
B. Concealment Before Stahmann
The issue of concealment in the context of tampering with physical evidence was
addressed in several cases before Corpus Christi issued its 2018 opinion in Stahmann. Perhaps
the most oft-cited case in this area is Hollingsworth v. State, 15 S.W.3d 586 (Tex. App.—Austin
2000, no pet.). In Hollingsworth, an officer arrived to an area in which a knife fight had been
reported. Id. at 589. When the officer arrived, he observed Hollingsworth walking down the
street. Because the officer believed Hollingsworth might have been involved in the fight, he
5
Lujan’s definition of concealment—“to prevent disclosure or recognition of” or “to place out of sight”—was
consistent with the other appellate courts. Lujan, 2009 WL 2878092, at *2. There is at least one other case that
conflates intent with concealment. See Collier v. State, 254 S.W.3d 576, 578 (Tex. App.—Eastland 2008), pet.
dism’d, 284 S.W.3d 866 (Tex. Crim. App. 2009) (per curiam).
14
followed Hollingsworth in his marked patrol car. Id. at 590. Eventually, the officer got out of
his car and asked Hollingsworth to stop. Id. Hollingsworth turned and looked at the officer but
continued to walk away. Hollingsworth then “made a quick and furtive movement towards” a
nearby dumpster, and the officer saw Hollingsworth “making a motion with his tongue in his
mouth.” “[Hollingsworth] duck[ed] his head and shoulder behind the dumpster and emerge[d] a
few seconds later.” Id. Another officer on the scene was able to see Hollingsworth spit out two
cube-shaped objects behind the dumpster, which he suspected were cocaine. Id. Hollingsworth
was convicted of tampering with physical evidence and possession of cocaine. Id. at 591. The
Austin court agreed with Hollingsworth’s argument that there was insufficient evidence that he
concealed cocaine from the officers. Id. at 595.
The Austin court recognized and utilized the trial court’s dictionary definition of
“conceal” as “[t]o hide or keep from observation, discovery, or understanding; keep secret.” Id.In applying that definition, the court observed that there was no evidence that Hollingsworth was
carrying cocaine in his mouth with the intent to impair its availability as evidence. In other
words, nothing in the evidence showed that Hollingsworth saw the police officers and then put
the cocaine into his mouth to conceal it from them. Id. Instead, one of the officers saw
Hollingsworth spit the cocaine out of his mouth, thus exposing it to view. Id. On those facts, the
Austin court determined that there was legally insufficient evidence of concealment. Id.The year after Hollingsworth was decided, this Court decided the case of Lewis v. State,
56 S.W.3d 617 (Tex. App.—Texarkana 2001, no pet.). In that case, Lewis was a passenger in a
car that was stopped by police due to improper positioning of a dealer’s tag in the rear window.
Id. at 618. When Lewis was asked to step out of the car, the officer noticed that Lewis was
15
chewing something and had a plastic bag sticking partially from his mouth. After Lewis was
restrained, the officer ordered him to spit out the contents of his mouth, but Lewis refused to
comply and kept chewing. Id. at 619. Eventually, Lewis spit out a small plastic bag containing
what appeared to be marihuana. The officer testified, though, that he could also see a white
substance inside Lewis’s mouth. That same white substance, which resembled cocaine, was on
the bag removed from Lewis’s mouth. Id. The evidence showed that the officers tried to force
open Lewis’s mouth by spraying him with pepper spray and by using tweezers. He nevertheless
refused to expel the remaining contents of his mouth and continued chewing. Id. Lewis was
ultimately taken to the hospital for stomach evacuation. The evidence showed that the contents
of Lewis’s stomach contained one gram of cocaine. Id. at 620.
On those facts, Lewis claimed that the evidence was insufficient to support his conviction
of tampering with physical evidence. Id. at 624. This Court determined that, because the
evidentiary value of the cocaine was not lost, the evidence was not destroyed, but it was
concealed: “[b]y showing that Lewis put the cocaine in his mouth and swallowed it, the State
proved that he hid it or kept it from observation according to the Hollingsworth court’s definition
of ‘conceal.’” Id. at 625.6
In an unpublished opinion, the Dallas court applied the Hollingsworth court’s definition
of “conceal” to conclude that the evidence was insufficient to support the defendant’s tampering
conviction. Blanton v. State, Nos. 05-05-01060-CR, 05-05-01061-CR, 2006 WL 2036615 (Tex.
App.—Dallas 2006, pet. ref’d) (not designated for publication). The facts in Blanton are
somewhat similar to the facts in McPherson’s case. As Blanton was in the process of being
6
This Court has never disavowed use of the Hollingsworth definition of “conceal.”
16
stopped for a traffic violation, the investigating officer observed Blanton throw two plastic
baggies from his car window. The baggies were later retrieved, and although some of the
contents had spilled, a measurable amount of cocaine remained. Id. at *1. Following his
conviction of tampering with physical evidence, Blanton argued on appeal that, because he threw
the baggies out in the officer’s view, the State failed to prove he concealed the cocaine. Id. at *2.
The Dallas court agreed that the State failed to establish that Blanton concealed the cocaine,
citing Hollingsworth, 15 S.W.3d at 594–95 (although it concluded he had altered the cocaine
because the baggies ripped and the contents spilled out). Id.The following year, the Fort Worth court issued its opinion in Rotenberry v. State, 245
S.W.3d 583 (Tex. App.—Fort Worth 2007, pet. ref’d). Rotenberry was convicted of tampering
with physical evidence after he concealed a body in a septic tank and then lied to police, telling
them that he did not know where the body was located. Id. at 586. Because the statute of
limitations had expired, Rotenberry could not be charged with concealing physical evidence by
hiding the body. Id. As a result, Rotenberry was charged with concealing physical evidence by
lying to the police. Id. The Fort Worth Court of Appeals rejected that theory, reasoning that
“conceal” in the context of tampering with physical evidence does not fairly encompass the act
of lying to police. Id. In reaching that conclusion, the court concluded that concealing physical
evidence, as contemplated by the tampering statute, encompasses “[t]he act of removing from
sight or notice; hiding.” Id. at 588 (quoting Conceal, BLACK’S LAW DICTIONARY (8th ed. 2004)).
This definition is in line with the other appellate courts who had addressed this issue at the time,
including Dallas, Texarkana, and Austin.
17
Lujan, as discussed above, is a bit of an outlier. It is a 2009 unpublished Amarillo case in
which the court determined that the defendant concealed a crack pipe he threw on the ground,
even though the court defined “concealed” as “to prevent disclosure or recognition of” or “to
place out of sight.” Lujan, 2009 WL 2878092, at *2 (quoting Conceal, MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY (11th ed. 2003)). The court said that, even “though the crack pipe was
both intact and visible,” there was enough evidence for the jury to “infer that defendant
attempted to prevent the pipe’s discovery by throwing it away.” Id. Lujan’s conflation of
attempted concealment and concealment means that it was wrongly decided. The Amarillo
court, nevertheless, used a definition of “conceal” that was in line with other appellate courts.
Amarillo next wrote Thornton v. State on the issue of concealment. Thornton v. State,
377 S.W.3d 814 (Tex. App.—Amarillo 2012), judgment vacated on other grounds by Thornton
v. State, No. PD-1517-12, 2013 WL 105874 (Tex. Crim. App. Jan. 9, 2013) (per curiam) (not
designated for publication). In Thornton, police officers approached two individuals walking in
the street rather than using a crosswalk—an offense for which the officers intended to ticket the
individuals. As they approached, one of the officers observed Thornton reach inside a pocket
and drop an object before he walked towards him. The officer picked up the object, which
turned out to be a broken glass crack pipe. Id. at 816. Thornton was charged with tampering and
was found guilty.
On appeal, Thornton argued that the evidence was insufficient to support his conviction
for tampering because he did not conceal the pipe. Instead, he claimed that he merely
“dispossessed himself of” it. Id. at 817. The Amarillo court cited its own previously utilized
definition of “conceal,” cited the similar definition utilized in Hollingsworth, and ultimately
18
relied on Blanton to conclude that Thornton did not conceal the pipe. Id. Rather, he merely
“dispossessed himself of” it, leaving it in plain view, thereby ultimately revealing it to the
officers.7 Id. at 818.8
Thornton went to the Court of Criminal Appeals because the appellate court reversed and
rendered a judgment of acquittal. Thornton v. State, No. PD-1517-12, 2013 WL 105874 (Tex.
Crim. App. Jan. 9, 2013) (per curiam) (not designated for publication). The Court of Criminal
Appeals agreed with the State that the appellate court should have considered whether the
evidence was sufficient to support a conviction for the lesser-included offense of attempted
tampering with evidence. Id. at *1. The State did not bring a point of error on the concealment
issue, and the Court of Criminal Appeals did not address it. The Amarillo court, on remand,
determined that the evidence was insufficient to support a conviction for attempted tampering.
Thornton v. State, 401 S.W.3d 395, 398 (Tex. App.—Amarillo 2013), rev’d on other grounds,
425 S.W.3d 289 (Tex. Crim. App. 2014).
The Court of Criminal Appeals wrote that the jury heard evidence that Thornton
“‘palmed’ the pipe as he removed it from his pocket.” Thornton v. State, 425 S.W.3d 289, 305
(Tex. Crim. App. 2014). The court recognized that the State argued at trial and on appeal that
Thornton successfully hid the pipe from the officer’s view by “palming” it and therefore
7
The court made no attempt to distinguish or otherwise explain its apparently inconsistent holding in Lujan.
8
The Amarillo court had some internal disagreement regarding this issue as evidenced by its 2012 opinion in Gaitan
v. State, 393 S.W.3d 400 (Tex. App.—Amarillo 2012, pets. ref’d). Gaitan was convicted of tampering with physical
evidence when an officer responding to a dispatch about a disturbance noticed Gaitan discard something metallic
near a carport doorway around midnight. Id. at 401. On appeal, Gaitan claimed that he did not conceal the
handgun. The court stated, “That his effort was ultimately unsuccessful matters little; the factfinder had before it
some evidence from which it could legitimately deduce that appellant was ‘hiding’ what he had from the officers
called to investigate the disturbance.” Id. at 402. This opinion included a strong dissent citing Thornton and
Blanton. Id. at 403.
19
“‘conceal[ed]’ the pipe as that term is used in Section 37.09(d)(1) of the Penal Code.” Id. at
305–06. While the court expressed no opinion on whether “palming” of evidence could amount
to concealment, such testimony was nevertheless “probative evidence of an intent to conceal the
pipe.” Id. at 306. Finally, the court stated that it would have been reasonable for the jury to
discount the fact that the officer never lost sight of the pipe, “since the element . . . under
consideration [was] the appellant’s mens rea—not his success (or lack thereof) at actual
concealment.” Id. In fact, the court gave no hint that palming the pipe or dropping the pipe
could amount to concealment under the facts of that case and sent a clear message that the
attempt to conceal and actual concealment are not the same crime. What is more, the court
recognized that
in cases of tampering with evidence, not every act of discarding an object evinces
an intent to impair the availability of that object as evidence in a later
investigation or proceeding. There may be cases in which the most inculpating
inference the evidence would support is that the accused simply intended to
dispossess himself of the object in order to more plausibly disclaim any
connection to it.
Id. at 304. This was a 5–4 opinion, split over the issue of whether attempted concealment was
even shown on those facts. Meanwhile, the Corpus Christi court wrote the predecessor to
Stahmann.
In Villarreal v. State, No. 13-15-00014-CR, 2016 WL 8919852 (Tex. App.—Corpus
Christi, Dec. 8, 2016, no pet.) (mem. op., not designated for publication), a Walmart loss
prevention office who identified Villarreal to police as a shoplifter saw Villarreal run through the
parking lot, “take a pill bottle out of his pocket and toss it ‘underneath’ a car.” Id. at *1. The
20
loss prevention officer picked up the pill bottle and gave it to the officer on the scene. Villarreal
was convicted of tampering. Id.On appeal, the critical element was the act of concealment, as Villarreal was not charged
with altering or destroying the pill bottle, which contained methamphetamine. Id. at *2. The
court recognized that “‘[c]onceal’ is not defined in the Texas Penal Code” but that it has been
construed “to mean to hide, to remove from sight or notice; to keep from discovery or
observation.” Id. (citing Thornton, 401 S.W.3d at 398).
In equating Villarreal’s case with Thornton, the court wrote that “the pill bottle had not
been concealed at any time and that the bottle landed in plain view and was ‘not hidden in any
way.’” Id.. “There [was] no evidence that may have supported a finding that Villarreal hid the
bottle, removed it from sight or notice, or kept it from discovery or observation.” Id. The
evidence was such that “no rational trier of fact could have found that Villarreal ‘concealed’ the
evidence.” Id. (citing Thornton, 401 S.W.3d at 399); see also Thornton, 425 S.W.3d at 307
(Keller, J., concurring). The law continued to develop in this area, as illustrated by two 2017
cases in which two appellate courts found sufficient evidence of concealment by applying the
standard definition of concealment utilized in the appellate courts since the Hollingsworth
decision in 2000.
In Hines v. State, 535 S.W.3d 102 (Tex. App.—Eastland 2017, pet. ref’d), the court
found sufficient evidence of concealment after Hines had scattered methamphetamine
underneath his body in the backseat of a patrol car and the police did not notice it until after he
got out at the jail. Id. at 111. The court applied the dictionary definition of “conceal” to mean
“to prevent disclosure or recognition of” or “to place out of sight.” Id. at 110 (quoting Conceal,
21
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2004)). The court stated that, under
either definition, “a dispositive inquiry is whether law enforcement noticed the object before the
defendant tried to hide it and maintained visual contact.” Id. The court equated the facts of
Hines with those in Gaitan v. State, 393 S.W.3d 400, 401 (Tex. App.—Amarillo 2012, pet.
ref’d), in which police eventually found a metal object defendant discarded “into the night.” Id.In contrast to Blanton, where the defendant threw a bag with cocaine from his car window
exposing the bag to the officer’s view, the evidence in Hines showed that the investigating
officer did not immediately recognize or see the methamphetamine that he had discarded. Hines,
535 S.W.3d at 110–11. The court believed that that sequence of events was similar to what
occurred in Stuart v. State, No. 03-15-00536-CR, 2017 WL 2536863 (Tex. App.—Austin June 7,
2017, no pet.) (mem. op., not designated for publication).
In Stuart, Stuart was convicted of “aggravated assault with a deadly weapon and
tampering with physical evidence after stabbing a man with a knife and subsequently placing the
knife beneath a storage box in the bedroom of [his] apartment.” Id. at *1. On appeal, Stuart
claimed that there was no evidence of his intent to conceal the knife because he put the knife
where police could find it. Id. at *3. The court defined “conceal” as “the act of removing from
sight or notice; hiding” and reasoned that, although numerous knives were openly displayed in
the living room of Stuart’s apartment, the knife used in the assault was found by police in a box
in the midst of clutter in Stuart’s bedroom. Id. (citing Gaitan, 393 S.W.3d at 401; Rotenberry,
245 S.W.3d at 588–89).
In concluding that the evidence of tampering was sufficient, the court distinguished Rabb
and Thornton, because in both of those cases, police officers saw the items before the respective
22
defendants began trying to hide them. See Rabb v. State, 483 S.W.3d 16, 17 (Tex. Crim. App.
2016) (defendant put plastic baggie in his mouth after police noticed him pull baggie out of his
pocket); Thornton, 425 S.W.3d at 293 (officer never lost sight of object defendant removed from
his pocket and dropped onto sidewalk).
Although the outcomes of these pre-Stahmann cases are different depending on the facts,
the common thread is the definition each court used for “conceal”: (1) “To hide or keep from
observation, discovery, or understanding; keep secret,” Hollingsworth, 15 S.W.3d at 595; Lewis,
56 S.W.3d at 625; see Blanton, 2006 WL 2036615, at *2; (2) “[t]he act of removing from sight
or notice; hiding,” Rotenberry, 245 S.W.3d at 586 (quoting Conceal, BLACK’S LAW DICTIONARY
(8th ed. 2004)); Gaitan, 393 S.W.3d at 401; Stuart, 2017 WL 2536863, at *3; (3) “to hide, to
remove from sight or notice; to keep from discovery or observation,” Villareal, 2016 WL
8919852, at *2 (quoting Thornton, 401 S.W.3d at 398); and (4) “to prevent disclosure or
recognition of” or “to place out of sight,” Thornton, 377 S.W.3d at 817; Hines, 535 S.W.3d at
110; Lujan, 2009 WL 2878092, at *2.
Also, prior to Stahmann, the Court of Criminal Appeals recognized that, “in cases of
tampering with evidence, not every act of discarding an object evinces an intent to impair the
availability of that object as evidence in a later investigation or proceeding.” Thornton, 425
S.W.3d at 304. In such cases, “the most inculpating inference the evidence would support is that
the accused simply intended to dispossess himself of the object in order to more plausibly
disclaim any connection to it.” Id.
23
C. Unsettled Law
In evaluating whether appellate counsel had a duty to raise a point of error on appeal, we
cannot “engage in the kind of hindsight examination of effectiveness . . . the Supreme Court
expressly disavowed in Strickland.” Vaughn v. State, 931 S.W.2d 564, 567 (Tex. Crim. App.
1996) (per curiam) (quoting Ex parte Davis, 866 S.W.2d 234, 241 (Tex. Crim. App. 1993)
(per curiam) (orig. proceeding)). As a result, “[c]ounsel’s performance will be measured against
the state of the law in effect during the time of [appeal,] and we will not find counsel ineffective
where the claimed error is based upon unsettled law.” Ex parte Roemer, 215 S.W.3d 887, 894
(Tex. Crim. App. 2007) (orig. proceeding) (Keasler, J., concurring) (in dispensing legal advice to
client during trial, counsel relied on the only available opinion dealing with the issue and that
case clearly resolved the issue against the client) (quoting Ex parte Welch, 981 S.W.2d 183, 184
(Tex. Crim. App. 1998)). This is “[b]ecause the law is not an exact science and it may shift over
time.” Ex parte Chandler, 182 S.W.3d 350, 358 (Tex. Crim. App. 2005) (orig. proceeding).
Therefore, “the rule that an attorney is not liable for an error in judgment on an unsettled
proposition of law is universally recognized.” Id. (quoting 3 RONALD E. MALLEN & JEFFREY M.
SMITH, LEGAL MALPRACTICE § 18.1 (5th ed. 2000)). Conversely, “[i]gnorance of well-defined
general laws, statutes and legal propositions is not excusable and such ignorance may lead to a
finding of constitutionally deficient assistance of counsel, but the specific legal proposition must
be ‘well considered and clearly defined.’” Id. (quoting 3 RONALD E. MALLEN & JEFFREY M.
SMITH, LEGAL MALPRACTICE § 18.4 (5th ed. 2000)).
The State argues that the definition of “conceal” within the context of the tampering
statute was unsettled law until the Court of Criminal Appeals handed down a definitive opinion
24
clarifying that definition in Stahman. In support of this argument, the State relies on a footnote
in Chandler citing Saucedo v. State, 756 S.W.2d 388, 393–94 (Tex. App.—San Antonio 1988,
no pet.), for the proposition that counsel cannot be faulted for failing to anticipate law that was
unclear until clarified by the highest court.9 In Saucedo, the appellant complained that trial
counsel failed to advise him that he would not be eligible for probation if he was convicted by
the trial court of aggravated sexual assault. Id. Because the issue of whether appellant was
informed of the prohibition before he filed his jury waiver was a disputed question of fact for the
trial court to resolve, the appellate court could not say that the trial court erred in refusing to
believe appellant’s testimony that counsel did not inform him that he would be ineligible for
probation if he filed a jury waiver. Id. at 394.
There was also a problem with the indictment in Saucedo—about which appellant did not
complain—because it improperly joined certain offenses. Id. Although the indictment “could
not, as we now know, legally charge more than one offense, still counsel cannot be faulted for
not anticipating the law which was not clarified until the Court of Criminal Appeals handed
down Fortune [v. State, 745 S.W.2d 364 (Tex. Crim. App. 1988),] and Holcomb [v. State, 745
S.W.2d 903 (Tex. Crim. App. 1988)].” Saucedo, 756 S.W.2d at 394.
These cases held that a single charging instrument could not: “(1) allege more than one
non-property offense; (2) allege statutorily different property offenses, or (3) allege one property
9
The Chandler court stated that “counsel’s performance will be measured against the state of the law in effect during
the time of trial and we will not find counsel ineffective where the claimed error is based on unsettled law.”
Chandler, 182 S.W.3d at 359 (quoting Ex parte Welch, 981 S.W.2d at 184). The footnote in this comment includes
a citation to Saucedo, 756 S.W.3d at 393–94, followed by the following parenthetical: “‘In judging the effectiveness
of counsel’s assistance, a reviewing court looks to the totality of the representation as of the time of trial, not
through hindsight’; counsel cannot be faulted for not anticipating law which was not clarified until the highest court
handed down definitive opinion.” Chandler, 182 S.W.3d at 359 n.38 (quoting Saucedo).
25
and one non-property offense.” Saucedo, 756 S.W.2d at 390 (citing Fortune v. State, 745
S.W.2d 364, 367 (Tex. Crim. App. 1988), overruled on other grounds by Ex parte Fortune, 797
S.W.2d 929 (Tex. Crim. App. 1990) (orig. proceeding); Holcomb, 745 S.W.2d at 905). The law
on misjoinder before Fortune and Holcomb was not at all clear. In Fortune v. State, 745 S.W.2d
364 (Tex. Crim. App. 1988), overruled on other grounds by Ex parte Fortune, 797 S.W.2d 929(Tex. Crim. App. 1990) (orig. proceeding), the first misjoinder case, the court noted, “In its
petition, the State contends, and rightfully so, that the two preceding opinions [Ex parte Siller,
686 S.W.2d 617 (Tex. Crim. App. 1985) (orig. proceeding), and Drake v. State, 686 S.W.2d 935(Tex. Crim. App. 1985), overruled by Fortune, 745 S.W.2d at 370),] are irreconcilable, and that
the bench and bar of this State deserve a clarification. We will now take the opportunity to do
so.” Fortune, 745 S.W.3d at 369. Based on the conflict between Siller and Drake, the Court of
Criminal Appeals, in Fortune, ultimately overruled that portion of Drake that held that, when the
State joins two or more offenses arising out of different transactions, such error must be objected
to at trial or waived on appeal. Id.
Prior to Fortune, the Court of Criminal Appeals had issued conflicting opinions on the
same issue, resulting in a thorny question of whether one could raise a misjoinder issue on
appeal. The Court of Criminal Appeals has continued to recognize that the law is unsettled when
it has issued conflicting opinions or when it has not addressed the proper construction of a
statute. For example, in State v. Bennett, 415 S.W.3d 867 (Tex. Crim. App. 2013), the court held
that counsel was not ineffective for failing to challenge the indictment based on the statute of
limitations for aggravated assault. It reasoned that “the particular statute of limitations question
. . . [was] unsettled.” Id. at 869. It acknowledged that it had issued two opinions—lacking
26
substantive analysis—supporting counsel’s belief that the statute of limitations was three years.
Id. The court recognized that it had issued a third opinion that may have been inconsistent with
its previous cases. That fact, it said, supported the conclusion that the statute of limitations for
aggravated assault was an unsettled issue. Id.In Ex parte Smith, the Court of Criminal Appeals held that counsel was not ineffective for
permitting his client to plead guilty without raising the question of whether a person on deferred
adjudication community supervision has been convicted as that term is used in the unlawful
possession of a firearm statute. Ex parte Smith, 296 S.W.3d 78, 81 (Tex. Crim. App. 2009) (orig.
proceeding). The court explained that, “[w]hether the Unlawful Possession of Firearm statute
applie[d] to a person who [was], or ha[d] been, on deferred-adjudication community supervision
[was] not clear,” id. at 80, and that “the issue of the proper construction of the statute was
unresolved and remain[ed] unclear,” id. at 81. Likewise, in Ex parte Bahena, 195 S.W.3d 704(Tex. Crim. App. 2006) (orig. proceeding), the court determined that trial and appellate counsel
did not perform deficiently for not challenging the validity of applicant’s stacked sentences for
two convictions “for aggravated sexual assault of a child arising out of the same criminal episode
and prosecuted in a single criminal trial.” Id. at 705. The court said that it was not unreasonable
for trial and appellate counsel to have believed that the sentences could have been stacked “based
on law that was unsettled at the time and [was] unsettled to [that] day.” Id. at 707 (evidence
showed that applicant committed charged offenses both before and after change in statute).
Conversely, the Court of Criminal Appeals has recognized that legal concepts that are not
“novel,” even though unaddressed by the high court, do not fall within the ambit of unsettled
law. This was true in Ex parte Welch, 981 S.W.2d 183 (Tex. Crim. App. 1998), in which the
27
court found that trial counsel was ineffective for failing to file a motion for probation when the
defendant’s previous placement on deferred adjudication probation was not a conviction and did
not render him ineligible for probation. Id. at 185.
The court noted, “Because this is the first case to consider the probation eligibility of a
defendant discharged from deferred adjudication probation, we would usually be hesitant to find
counsel’s failure to anticipate a future decision sufficiently egregious to consider his
performance at the time of trial ineffective.” Id. (emphasis added). The court recognized,
however, that, “to be reasonably likely to render effective assistance to his client, a lawyer must
be sufficiently abreast of developments in criminal law aspects implicated in the case at hand.”
Id. (citing Ex parte Williams, 753 S.W.2d 695, 698 (Tex. Crim. App. 1988) (orig. proceeding)).
The court observed that “the idea that the order deferring adjudication and placing applicant on
probation was not a conviction was not novel at the time of applicant’s trial,” id. (citing
McDougal v. State, 610 S.W.2d 509 (Tex. Crim. App. 1981), superseded by statute as stated in
Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992)), and concluded that trial
counsel was therefore ineffective in failing to file a motion for probation, id. (citing Ex parte
Davis, 866 S.W.2d 234 (Tex. Crim. App. 1993) (orig. proceeding) (counsel will be presumed to
have knowledge of legal principle that is neither novel nor unsettled).
This case involves well-developed caselaw on what “conceal” means in the context of the
tampering statute, which was neither novel nor unsettled at the time of McPherson’s direct
appeal. The definition of “conceal” was remarkably consistent across the appellate courts and
was not subject to dispute before the Court of Criminal Appeals issued its opinion in Stahmann.
Indeed, there has never been any disagreement among the appellate courts about the meaning of
28
the term “conceal.” And, while some of the courts conflated the concept of attempted
concealment with actual concealment, the Court of Criminal Appeals put an end to that in
Thornton when it said, “[T]he element currently under consideration is the appellant’s mens
rea—not his success (or lack thereof) at actual concealment.” Thornton, 425 S.W.3d at 306.
Although the Court of Criminal Appeals had not weighed in on the meaning of “conceal” in the
context of the tampering statute at the time of McPherson’s appeal, certainly that term was not
vague or indefinite and was given its plain, ordinary meaning by the appellate courts.10 We,
therefore, conclude that the definition of “conceal” was not unsettled law at the time of
McPherson’s direct appeal.
D. Failure to Bring a Point of Error Challenging Concealment Was Objectively
Unreasonable
“To obtain relief in the form of a new direct appeal on a claim of ineffective assistance of
appellate counsel, applicant must show that ‘(1) counsel’s decision not to raise a particular point
of error was objectively unreasonable, and (2) there is a reasonable probability that, but for
counsel’s failure to raise that particular issue, he would have prevailed on appeal.’” Ex parte
Flores, 387 S.W.3d 626, 639 (Tex. Crim. App. 2012) (orig. proceeding) (quoting Ex parte
Miller, 330 S.W.3d 610, 623 (Tex. Crim. App. 2009)). Although appellate counsel “need not
advance every argument, regardless of merit,” id. (quoting Evitts, 469 U.S. 394), “if appellate
counsel fails to raise a claim that has indisputable merit under well-settled law and would
“Terms not defined in a statute are to be given their plain and ordinary meaning, and words defined in dictionaries
10
and with meanings so well known as to be understood by a person of ordinary intelligence are not to be considered
vague and indefinite.” Watson v. State, 369 S.W.3d 865, 870 (Tex. Crim. App. 2012).
29
necessarily result in reversible error, appellate counsel is ineffective for failing to raise it,” id.(quoting Miller, 330 S.W.3d at 624).11
It is clear that appellate counsel need not raise every claim on appeal. Instead, counsel
should “examine the record with a view to selecting the most promising issues for review.”
Purchase v. State, No. 01-07-00738-CR, 2008 WL 596848, at *9 (Tex. App.—Houston [1st
Dist.] Mar. 6, 2008, pet. struck) (mem. op., not designated for publication) (quoting Jones v.
Barnes, 463 U.S. 745, 752 (1983)). According to the United States Supreme Court:
Experienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues. . . .
....
. . . . “Usually, . . . if you cannot win on a few major points, the
others are not likely to help . . . .”
....
. . . . This has assumed a greater importance in an era when oral argument is
strictly limited in most courts—often as little as 15 minutes—and when page
limits on briefs are widely imposed.
....
. . . . For judges to second-guess reasonable professional judgments and impose
on [appellate] counsel a duty to raise every “colorable” claim suggested by a
client would disserve the very goal of vigorous and effective advocacy . . . .
11
Under those standards, the court held that appellate counsel was not ineffective for failing to raise the sufficiency
of the evidence on the appeal of his client’s convictions of capital murder. Flores, 387 S.W.3d at 641. Appellate
counsel explained that he was focused on constitutional issues and did not think there was a chance to prevail on the
sufficiency issue. Id. at 639. After examining the evidence (with no examination of the issue of well-settled law,
for this was a sufficiency question), the court agreed that counsel was reasonable in his determination that a
challenge to legal sufficiency was not likely to be fruitful. Id. The court concluded that the applicant failed to show
that there was reasonable probability that he would have prevailed had he raised a sufficiency claim on appeal. Id.
at 641.
30
Jones v. Barnes, 463 U.S. 745, 751–54 (1983) (quoting ROBERT L. STERN, APPELLATE PRACTICE
IN THE UNITED STATES 266 (1981)).
“Consequently, ‘only when ignored issues are clearly stronger than those presented, will
the presumption of effective assistance of counsel be overcome.’” Purchase, 2008 WL 596848,
at *10 (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)); see Ex parte Daigle, 848 S.W.2d
691, 692 (Tex. Crim. App. 1993) (orig. proceeding) (appellate counsel was ineffective in failing
to raise jury-selection error that, under prevailing caselaw, would have been automatic reversible
error). Moreover, “[a]n appellate court can evaluate appellate counsel’s choice of issues by
comparing significant issues which could have been raised with those that were raised and
examining the trial record and the appellate brief.” Id. (citing Gray v. Greer, 800 F.2d 644, 646
(7th Cir. 1986)) (cannot fault appellate counsel for winnowing out arguments and focusing on
one central issue, appellant’s competence to stand trial).
In Ex parte Miller, 330 S.W.3d 610, 623 (Tex. Crim. App. 2009) (orig. proceeding), the
court used strong language in concluding that appellate counsel was ineffective. Miller had been
convicted of murder, and his sentence was enhanced based on a previous burglary conviction and
a previous drug conviction. In his habeas petition, Miller claimed that appellate counsel was
ineffective for failing to raise the issue that the evidence was insufficient to prove that his
burglary conviction was for an offense committed after his drug conviction became final. Id. at
614. Appellate counsel died before the application was filed and “could not defend his actions or
strategic decisions.” Id. at 615. The habeas court found that appellate counsel was ineffective
because he failed to challenge the sufficiency of the evidence to prove that the enhancement
paragraphs were sequential. Id.
31In Miller, the well-settled law was the statute itself. The court noted that “the law
concerning sufficiency of the evidence to prove enhancement for habitual felony offenders is
well settled,” citing Section 12.42(d) of the Penal Code.12 Id. at 624. Next, the court noted that
the evidence in the record did not prove the second prong, i.e., when the burglary offense was
committed. Id. The court stated, “Any objectively reasonable attorney would have been familiar
with the well-settled law concerning enhancement paragraphs and would have raised this ‘sure-
fire winner’ claim.” Id. at 624–25. In this case, there was “no plausible strategy for failing to
bring a claim that is necessarily reversible error.” Id. at 626. Finally, the applicant demonstrated
prejudice because his legal-sufficiency claim would have prevailed on appeal.
Here, appellate counsel’s affidavit listed his reasons for failing to argue lack of
concealment. Those reasons collectively indicate that counsel did not consider bringing a point
of error claiming that the evidence was legally insufficient to prove concealment. Counsel’s
affidavit, therefore, posited no plausible strategy for failing to bring this point of error.13
12
That section requires the State to prove the following sequence of events: (1) the first conviction becomes final,
(2) the offense leading to a later conviction is committed, (3) the later conviction becomes final, and (4) the offense
for which the defendant presently stands accused is committed. TEX. PENAL CODE ANN. § 12.42(d).
13
In Ex parte Marin, No. AP-75,719, 2008 WL 902143 (Tex. Crim. App. Apr. 2, 2008) (orig. proceeding), the court
found that appellate counsel was ineffective. In that case, counsel failed to raise the issue of whether conspiracy to
commit murder was a lesser-included offense of murder on direct appeal. Id. at *4. The court stated, “The
presumption of effective assistance of counsel will be overcome when the ignored issues are clearly stronger than
those presented by the counsel on appeal.” Id. at *5 (citing Robbins, 528 U.S. at 288). The court further noted that
it decided Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), in 2007, at which time it determined that a focus
on the statutory elements of the lesser and greater offenses in question was “the sole test for determining in the first
step whether a party may be entitled to a lesser-included-offense instruction.” Ex parte Marin, 2008 WL 902143, at
*5 (quoting Hall, 225 S.W.3d at 535). “[I]n light of the earlier conflict in our decisions following our opinion in
Day on rehearing, applicant’s challenge to the trial court’s inclusion of conspiracy to commit murder as a lesser-
included offense of murder raised a strong issue on which she was quite likely to prevail in light of our own
decisions following Schmuck.” Id. at *5. Marin’s appellate counsel (somewhat reminiscent of appellate counsel in
this case) stated,
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Whether the failure to raise this issue was objectively unreasonable depends on (1) the
evidence before the trial court and (2) the appellate point advanced on direct appeal. See Flores,
387 S.W.3d at 639; Jones, 463 U.S. at 752. As previously outlined, the evidence before the trial
court showed:
• McPherson was traveling at eighty-four m.p.h. in a seventy-five-m.p.h. zone.
• Townes turned on his overhead lights and pulled behind McPherson’s truck.
• After changing lanes and rolling down his windows, McPherson eventually pulled
over to the shoulder of the road where he traveled for one to two miles.
• While traveling on the shoulder, McPherson was going approximately fifty-five to
sixty m.p.h.
• Townes noticed some brown objects fly out of the truck’s driver’s side window
and hit his windshield as he followed McPherson on the shoulder.
• Townes activated his siren to mark the location where the objects hit his
windshield.
• After issuing McPherson a citation, Townes returned to the spot where he saw the
objects hit his windshield.
• In less than forty seconds after exiting his patrol vehicle, Townes located five
cigarillo joints on the shoulder of the road.
I did not raise a point of error on appeal regarding the lesser of conspiracy because there was no
jury charge error; the only thing the Appellant did not do was to physically kill her sleeping
husband herself. The record on appeal amply reveals that Appellant pursued a conspiracy which
encompassed not only the killing but also a cover-up.
Id. at *6. Additionally, the court stated, “[A]ppellate counsel’s affidavit as a whole indicates that he considered
applicant’s case to be frivolous. A reasonable attorney, in that situation, would have filed an Anders brief.” Id.“The affidavit also indicates that the counsel failed to do any research on [this] issue . . . and if he had done such
research, he would have known about [the applicable law].” Id. The court noted that counsel “ignored the
importance of the trial counsel’s efforts to preserve the lesser-included-offense issue, disregarded his own client’s
earnest requests to pursue that issue, and instead filed an appeal on claims that even he did not seem to believe had
any merit.” Finally, the court concluded “that counsel’s failure to raise the lesser-included offense issue constituted
deficient performance” and that such deficient performance caused obvious prejudice. Id.We cite Marin solely for illustrative purposes. See TEX. R. APP. P. 77.3.
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• Because he saw the cigarillos come from the driver’s side window of
McPherson’s truck, they could not have been random cigarillos thrown from
somebody else’s window.
On direct appeal, McPherson claimed that the evidence was legally insufficient to prove
that he knew a law enforcement investigation was in progress at the time Townes saw the
cigarillos thrown from the truck. In evaluating this point, we stated, in part,
Townes testified that his overhead lights were on while he caught up to and
followed McPherson across two lanes of traffic and onto the shoulder. The jury
could have reasonably rejected McPherson’s claim that he was trying to get out of
the officer’s way and inferred that McPherson knew Townes was trying to stop
him because, even though Townes followed McPherson onto the shoulder,
McPherson did not stop until after Townes activated his siren, which is about the
time Townes saw the objects thrown from the truck.
McPherson, 2019 WL 2220119, at *3. We further stated,
The video recording shows that the truck’s windows were rolled up when it
initially passed Townes, but at the time of the stop, all four windows had been
rolled down. Townes testified that marihuana has an extreme smell and that
rolling down a vehicle’s windows can allow the vehicle to “air out.” McPherson
denied smoking marihuana, smelling like marihuana, and having any in his truck,
and he testified that, when he “got ready to stop,” he rolled all four of the truck’s
windows down so Townes could see inside the truck. The jury was free to reject
McPherson’s testimony and accept Townes’ testimony and infer that McPherson
rolled his windows down to remove any possible marihuana smell from his
vehicle’s cabin.
Id. at *4. The claim that the evidence was legally insufficient to show that McPherson knew an
investigation was in progress at the time Townes saw the cigarillos thrown from the truck was
weak.
It is the most basic task of appellate counsel to examine the elements of the offense to
determine whether the State has proven each element. Here, no matter which pre-Stahmann
definition of “conceal” counsel chose to use, there was a convincing argument under the
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evidence presented in the trial court that McPherson did not conceal the evidence. Because (1)
the issue presented on appeal was weak and (2) the ignored issue of lack of concealment was
clearly stronger than the issue presented on appeal, the presumption of effective assistance of
counsel has been overcome. See Smith v. Robbins, 528 U.S. 259, 288 (2000). “[A] lawyer must
be sufficiently abreast of developments in criminal law aspects implicated in the case at hand.”
Ex parte Welch, 981 S.W.2d at 185. Because a lawyer sufficiently abreast of the well-settled law
regarding what it means to conceal evidence in the context of the tampering statute would have
brought this point of error on appeal, we conclude that the failure to argue lack of concealment
on appeal was objectively unreasonable. See Ex parte Miller, 330 S.W.3d at 624–25.
E. Harm
Even though the failure to argue lack of concealment was objectively unreasonable,
McPherson must nevertheless show that he was harmed by that failure. To show harm,
McPherson must show, by a preponderance of the evidence, that counsel’s deficient performance
actually prejudiced him. Strickland v. Washington, 466 U.S. 668, 688 (1984). With respect to
appellate counsel, this means that “there is a reasonable probability that, but for counsel’s failure
to raise that particular issue, he would have prevailed on appeal.” Ex parte Miller, 330 S.W.3d at
623; Ex parte Santana, 227 S.W.3d 700, 705 (Tex. Crim. App. 2007) (orig. proceeding).
In Lewis, this court adopted the Hollingsworth definition of “conceal” to mean “[t]o hide
or keep from observation, discovery, or understanding; keep secret.” Lewis, 56 S.W.3d at 625(quoting Hollingsworth, 56 S.W.3d at 625). Had this Court applied that definition to the facts
presented here, there is a reasonable probability that McPherson would have prevailed on appeal.
As a result, we conclude that McPherson was harmed by counsel’s deficient performance.
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IV. Conclusion
We reverse the trial court’s order. Because appellate counsel was ineffective, McPherson
is entitled to an out-of-time appeal of his judgment of conviction to address the issue of whether
the State proved that McPherson concealed or attempted to conceal the contraband. See Ex parte
McCarty, No. 03-14-00575-CR, 2015 WL 2089091, at *1, *4 (Tex. App.—Austin Apr. 29, 2015,
no pet.) (mem. op., not designated for publication) (addressing habeas claim that applicant’s
attorney failed to file notice of appeal and concluded “that an out-of-time appeal is a permissible
remedy under article 11.072”); Sterling v. State, 681 S.W.2d 680, 682 (Tex. App.—Houston
[14th Dist.] 1984, pet. ref’d) (demonstrating that ineffective assistance of counsel claim may
provide basis for post-conviction habeas corpus relief in form of out-of-time appeal).
McPherson is therefore entitled to be returned to that time at which he may file a written notice
of appeal so that he may obtain a new appeal. See Ex part Torres, 943 S.W.2d 469, 472 (Tex.
Crim. App. 1997) (granting out-of-time appeal restores the pendency of the direct appeal). We
remand this case to the trial court for entry of such an order. See Ex parte Valdez, 489 S.W.3d
462, 465 (Tex. Crim. App. 2016) (orig. proceeding) (trial court with habeas authority has power
to grant out-of-time appeal); Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769
S.W.2d 554, 558–59 (Tex. Crim. App. 1989) (orig. proceeding) (“We hold that the district court
had jurisdiction to entertain the writ of habeas corpus, and applicant in this cause properly
invoked that jurisdiction by filing his writ with the district court. Thus, the district court had
jurisdiction of the habeas application. Since the district court had this jurisdiction, it had the
authority to grant an out-of-time appeal.”). The order should make clear that, should McPherson
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wish to prosecute a new appeal, he must file a written notice of appeal in the trial court within
thirty days after the mandate of this Court issues.
Scott E. Stevens
Justice
Date Submitted: December 1, 2021
Date Decided: January 12, 2022
Do Not Publish
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