Allyn Shane Doyle A/K/A Shane Doyle v. State ( 2015 )

ACCEPTED
07-14-00340-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
2/26/2015 10:27:22 AM
Vivian Long, Clerk
No. 07-14-00340-CR
______________________________
FILED IN
IN THE COURT OF APPEALS 7th COURT OF APPEALS
AMARILLO, TEXAS
SEVENTH DISTRICT OF TEXAS, AMARILLO, TEXAS
2/26/2015 10:27:22 AM
______________________________ VIVIAN LONG
CLERK
ALLYNE SHANE DOYLE,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
______________________________
On Appeal from the 69th Judicial District Court
Of Dallam County Texas
______________________________
STATE’S BRIEF
______________________________
NANCY NEMER *JOSEPH P. CORCORAN
District Attorney, Pro Tem Assistant District Attorney, Pro Tem
Assistant Attorney General Assistant Attorney General
Supervising Attorney
for Non-Capital Appeals
Criminal Appeals Division
*Lead Appellate Counsel State Bar No. 00793549
Joseph.Corcoran@TexasAttorneyGeneral.gov
P. O. Box 12548, Capitol Station
Austin, Texas 78711
Telephone: (512) 936-1400
Facsimile: (512) 936-1280
_____________________________
ATTORNEYS FOR THE STATE
IDENTITY OF PARTIES AND COUNSEL
Appellant
Allyne Shane Doyle
Represented by
TIMOTHY D. SALLEY
(At both trial and on appeal)
Salley & Lands
102-B E 7th Street
Dumas, TX 79029
(806) 934-3185
tsalley53@gmail.com
Appellee
The State of Texas
Represented by
JOSEPH P. CORCORAN (on appeal)
NANCY NEMER
District Attorneys Pro Tem
Dallam County, Texas
Assistant Attorneys General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 – MC067
Austin, Texas 78711-2548
512-936-1400
Joseph.Corcoran@texasattorneygeneral.gov
Nancy.Nemer@texasattorneygeneral.gov
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ............................................. ii
TABLE OF CONTENTS .........................................................................iii
INDEX OF AUTHORITIES ..................................................................... v
STATEMENT OF THE CASE ................................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ................................. 4
STATEMENT OF FACTS ........................................................................ 4
SUMMARY OF THE ARGUMENTS ..................................................... 10
ARGUMENTS AND AUTHORITIES .................................................... 12
I. Standard of Review ....................................................................... 12
II. Resolution of Appellant’s Point of Error Is Impossible Because It Is
Premised Upon Extra Record “Facts” Not Properly before the Court,
and Which Could Not Have Been Considered by the Trial Court
When Appellant’s Original Motion Was Overruled by Operation of
Law ................................................................................................. 13
A. The 30-day time limit to file a motion for new trial ............. 13
B. Appellant’s “supplemental” motion for new trial was in
reality an untimely amendment ........................................... 14
C. The trial court could not have considered the Amended
Motion over the State’s objection; hence, Appellant
failed to preserve his single point of error for review .......... 15
iii
III. Even Assuming, Arguendo, that the Amended Motion was Properly
Before the Trial Court, Appellant Fails to Establish that the Trial
Court Abused its Discretion When it Denied the
Amended Motion. .......................................................................... 16
A. The trial court has no duty to inform a defendant that
he has a constitutional right to testify, or to ensure that
a defendant’s waiver of that right is knowing or
voluntary, under Texas law this obligation is on defense
counsel ................................................................................... 16
B. Appellant has failed to meet his burden of establishing
that the trial court’s decision to deny his motion for new
trial was an arbitrary or unreasonable application of
Strickland. ............................................................................. 19
C. Appellant fails to meet his burden under either prong of
Strickland. ............................................................................. 22
PRAYER FOR RELIEF .......................................................................... 24
CERTIFICATE OF SERVICE ................................................................ 25
CERTIFICATE OF COMPLIANCE ....................................................... 26
iv
INDEX OF AUTHORITIES
Cases
Adams v. State, 514 S.W.2d 262 (Tex. Crim. App. 1974) ....................... 16
Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004)...................... 21
Dugard v. State, 688 S.W.2d 524 (Tex. Crim. App. 1985) ...................... 14
Emery v. Johnson, 139 F.3d 191 (5th Cir. 1997) .................................... 17
Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001) ......................... 21
Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1993) ...................... 16
Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) .................. 19
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) ................ 20
Holden v. State, 201 S.W.3d 761 (Tex. Crim. App. 2006) ................ 12, 23
Johnson v. State, 120 S.W.3d 10 (Tex. App.—Amarillo 2003) ............... 17
Johnson v. State, 169 S.W.3d 223 (Tex. Crim. App. 2005) ............... 17, 18
Klapesky v. State, 256 S.W.3d 442 (Tex. App.–Austin 2008) ................ 14
Lewis v. State, 911 S.W.2d 1 (Tex. Crim. App. 1995)............................. 12
Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001) .......................... 20
Marras v. State, 741 S.W.2d 395 (Tex. Crim. App. 1987) ...................... 16
Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002) ........... 19, 20, 21
v
My Thi Tieu v. State, 299 S.W.3d 216 (Tex. App.—Houston [14th Dist.]
2009) ..................................................................................................... 22
Rock v. Arkansas, 483 U.S. 44 (1987) ..................................................... 17
Rodriguez v. State, 292 S.W.3d 187 (Tex. App.–Amarillo 2009) 19, 20, 21
Shanklin v. State, 190 S.W.3d 154 (Tex. App.—Houston [1st Dist.] 2005)
.............................................................................................................. 22
State v. Gill, 967 S.W.2d 540 (Tex. App.—Austin 1998) ........................ 22
State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007) .................... 22
State v. Zalman, 400 S.W.3d 590 (Tex. Crim. App. 2013) ................ 14, 15
Strickland v. Washington.................................................................. 12, 20
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ..................... 21
Will. v. State, 780 S.W.2d 802 (Tex. Crim. App. 1989).................... 14
Statutes
Tex. Code Crim. Proc. art 42.013 .............................................................. 2
Tex. Penal Code § 12.32 ............................................................................ 1
Tex. Penal Code § 12.42(b) ........................................................................ 1
Rules
Tex. R. App. P. 21.2 ................................................................................. 16
vi
Tex. R. App. P. 21.4(a) ............................................................................. 13
Tex. R. App. P. 21.4(b) ............................................................................. 13
Tex. R. App. P. 21.8(c) ............................................................................... 3
Tex. R. App. P. 26.2(a)(2) .......................................................................... 3
vii
STATEMENT OF THE CASE
The Grand Jury of the 69th Judicial District Court of Dallam
County Texas, indicted Appellant, Allyne Shane Doyle, with the second-
degree felony offense of aggravated assault with a deadly weapon. CR 5.1
The indictment included a single, final-felony enhancement allegation,
which if proven, increased the potential punishment range to that of a
first-degree felony (i.e., to a term of not less than five years, and not more
than ninety-nine years, or life). CR 5; see Tex. Penal Code § 12.42(b)
(West 2013); see also Tex. Penal Code § 12.32 (West 2013) (defining the
punishment range for a first-degree felony offense). Appellant pleaded
not guilty and proceeded to a bench trial. CR 35–36; 2 RR 5. The trial
court found Appellant guilty of the offense as alleged in the indictment.
CR 35–36; 3 RR 121. On the same day—July 8, 2014—after conducting a
hearing on punishment, and after finding the enhancement paragraph to
1 “CR” refers to the Clerk’s Record—the transcript of pleadings and documents
filed with the clerk during trial and is followed by page number. “RR” refers to the
Reporter’s Record of the transcribed trial proceedings, and is preceded by volume
number and followed by page number.
1
be true, the trial court sentenced Appellant to twenty-five years’
imprisonment. 2 3 RR 187–88; CR 35. Although he was present when his
sentence was pronounced in open court, Appellant did not testify at the
punishment proceeding. 3 RR 133–86. As relevant to this appeal,
immediately prior to the start of the punishment portion of the trial,
Appellant voluntarily waived his right to be present during the
questioning of witnesses, and left the courtroom. 3 RR 126–29.
On July 15, 2014—seven days after his sentence was imposed in
open court—Appellant filed a motion for new trial, alleging only that “the
verdict in this cause is contrary to the law and the evidence.” CR 38 (the
State will refer to Appellant’s July 15, 2014 motion for new trial as the
“Original Motion”). Appellant’s Original Motion did not advance an
allegation that he wished to testify at the punishment hearing, or a claim
that his constitutional right to testify was violated. See id. Next, on
August 19, 2014—42 days after his sentence was imposed in open court—
2 The trial court also entered two additional findings: first that the offense for
which Appellant had been convicted involved family violence under Tex. Code Crim.
Proc. art 42.013; and second, that Appellant used a deadly weapon in commission of
the offense. CR 5.
2
Appellant filed a “supplement” to his Original Motion in which he
attached two affidavits, each suggesting two additional claims. CR 40–43
(the State will refer to this August 19, 2014 pleading as the “Amended
Motion”). The first affidavit seemed to suggest that the State mistreated
the complaining witness at trial. CR 42. The second affidavit was from
Appellant himself, in which he stated that he had desired to testify
during the punishment hearing, but that due to some kind of
misunderstanding with trial counsel, he did not. CR 43.3
The State timely objected to the trial court’s consideration of the
Amended Motion, contending that it constituted an untimely amendment
of the Original Motion. CR 47–48. No hearings occurred on either motion
for new trial, and the lack of a written ruling in the record suggests that
they were overruled by operation of law. See Tex. R. App. P. 21.8(c).
Appellant filed his notice of appeal on September 9, 2014. CR 44;
see Tex. R. App. P. 26.2(a)(2). The State understands Appellant to raise
a single point of error: That the trial court erred in denying his Amended
3The second affidavit appears to be the basis for the single point of error
pending before the Court.
3
Motion, in which he first sought a new punishment hearing, because
Appellant was unable to testify at that punishment hearing as a result of
a misunderstanding between he and trial counsel. See Appellant’s Br. at
8–11.
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 39.1, the State does
not believe that oral argument is necessary because the dispositive issue
or issues have been authoritatively decided; the facts and legal
arguments are adequately presented in the briefs and record; and the
decisional process would not be significantly aided thereby.
STATEMENT OF FACTS
Larry Wilkerson testified that on August 1, 2013, he was walking
back from a local bank, along Fourth Street, when he heard two men
arguing. 3 RR 10–11, 13. As he approached, he saw the two men standing
in the open, continuing to argue. 3 RR 15–16. Eventually, Wilkerson saw
one of the men jump into a pickup truck and forcefully drive the truck in
reverse toward the other man, violently striking him. 3 RR 16. The driver
was moving in reverse with sufficient force to cause the tires to “spin.” 3
4
RR 16, 19. The man who was struck by the pickup was later identified as
Quincy Allyn Doyle, Appellant’s father. 3 RR 41. The truck’s tailgate was
down, and Quincy was struck with sufficient force that he “fell” onto the
back of the truck. 3 RR 16, 19–20. The driver continued moving
backwards, eventually striking the back of the truck—and Quincy—into
a pile of “junk.” 3 RR 16. If the driver had driven Quincy into anything
other than a “junk pile,” it would have “[s]quashed him dead.” 3 RR 16.
The driver then proceeded to move the truck forward with Quincy still
hanging on, “spinning the gravel and everything, and . . . [Quincy] finally
fell off the truck about the middle of the street.”4 3 RR 16. Wilkerson then
approached Quincy concerned that he was injured and might not be alive.
3 RR 16. Wilkerson then waited for police to arrive, and gave them his
statement. 3 RR 16.
Quincy Allyn Doyle testified that Appellant is his son. 3 RR 32.
Quincy has had a “rocky relationship” with Appellant for five to ten years.
3 RR 33–35. Appellant has a “really bad temper.” 3 RR 38. Appellant
tends to get angry when he “doesn’t get his way.” 3 RR 40. On August 1,
4 The driver left the scene. 3 RR 79.
5
2013, Quincy had a “very loud argument” with Appellant over Appellant’s
attempt to take a tow bar from Quincy without a deposit, and also over
Appellant’s failure to pay money owed to Quincy. 3 RR 37–38. Appellant
became extremely angry, got into his pickup truck, and “took off in his
truck coming at me, you know, backwards and rammed me up in a pile
of junk.” 3 RR 40. In order to avoid being crushed between the truck and
pile of junk, Quincy had to jump into the bed of the truck. 3 RR 40.
Appellant then “took off” and Quincy eventually rolled off the truck and
out into the street. 3 RR 40. In the street, Quincy encountered Wilkerson.
3 RR 41. Quincy acknowledged that he told police that Appellant had
tried to kill him, and that in retrospect “you could say that.” 3 RR 42.
Quincy also testified that Appellant sent him several letters from jail, in
which he repeatedly asked Quincy to file an affidavit of non-prosecution,
in an effort to get the charged offense dismissed. 3 RR 54–63. Quincy also
testified that in one of the letters, Appellant suggested that Quincy
contact Wilkerson in an effort to obtain an affidavit of non-prosecution
from Wilkerson. 3 RR 61–62.
6
Officer Rodrigo Jackson testified that he is a police officer for City
of Dalhart Police Department. 3 RR 74. He testified that he was on duty
on August 1, 2013, when he received a call to go to 320 Scott Street. 3 RR
74. Upon arrival Officer Jackson observed Quincy sitting on the ground,
3 RR 76, and asked Quincy what had happened, to which Quincy replied
“Shane just tried to kill me.” 3 RR 75; accord 3 RR 104 (“[Quincy] told me,
my son, Shane, just tried to run me over.”). Officer Jackson observed tire
tracks that appeared to confirm that someone tried to hit Quincy with a
vehicle. 3 RR 79. Officer Jackson testified that backing a truck up into a
person could be a deadly weapon. 3 RR 101. Officer Jackson confirmed
that Wilkerson was a witness to the “entire incident,” and that Wilkerson
provided a witness statement to that effect. 3 RR 105. Officer Jackson
also testified that Appellant’s reputation in the community was “not
good.” 3 RR 84.
Michelle Griffin testified that she was the chief dispatcher for the
Dalhart County Jail. 3 RR 111. She testified regarding a letter that
Appellant sent to Quincy from the jail. 3 RR 111–16; State Ex. 5. In the
letter, Appellant attempted to have Quincy execute and file a non-
7
prosecution affidavit. 3 RR 114. Appellant also asked Quincy to contact
Wilkerson and ask “him if he would tell that chick in Austin – and chick
is spelled c-h-i-c just so you know – in Austin he wants no part in the
situation, then she has no pull at all anyway look – any way you look at
it.”5 3 RR 115.
After he was found guilty, and during sentencing, Angela Reynolds
testified that she had previously dated Appellant from May or June of
2008, until October of 2011. 3 RR 133–34. Reynolds testified that during
the five-year period she dated Appellant, he was “very” violent, and that
he repeatedly made her fear for her life. 3 RR 135. Reynolds testified that
she was convicted of a drug offense that Appellant had actually
committed, for the benefit of Appellant. 3 RR 136. She testified that
Appellant repeatedly violated protective orders against him, and
threatened to kill Reynolds and her family. 3 RR 140. Despite such
violations, Appellant was not prosecuted. 3 RR 142. On one occasion,
Reynolds attempted to leave Appellant, but he followed her with his
5This reference appears to be to Nancy Nemer, the assistant attorney general
who prosecuted Appellant. See 3 RR 115.
8
truck, grabbed her by her hair and put in the passenger seat. 3 RR 143.
After Reynolds exited the truck, Appellant repeatedly tried to ram her
with the truck, forcing her to get behind trees to prevent him from hitting
her. 3 RR 144. This was not the first time that Appellant grabbed
Reynolds by her hair and forced her into his truck, against her will. 3 RR
146–47. Reynolds testified that over a five-year period, Appellant beat,
choked, hit, slapped, kicked, threw down, and pulled her hair “a hundred
times.” 3 RR 148. And that she thought she was going to die “quite a few”
times. 3 RR 148.
Brandy Blanco testified during sentencing that she had previously
dated Appellant “on and off the last two . . . years.” 3 RR 157. Blanco
testified that during the two-year period she dated Appellant, he was
violent, and he continually beat her up. 3 RR 157. Blanco testified that
Appellant’s threats caused her to be concerned for the safety of her entire
family, and particularly her daughter. 3 RR 157–58. Blanco testified that
she once tried to leave Appellant, and that after he found her, he forced
her into his truck by threatening to kill her grandmother and daughter.
3 RR 159. At one point Appellant burned Blanco with a “torch,” telling
9
her that “love hurts.” 3 RR 160. Blanco testified that she believed
Appellant injected her with narcotics without her consent. 3 RR 161–62.
Indeed, Blanco testified that Appellant repeatedly punished her for
calling the police. 3 RR 163. Although she repeatedly tried to leave
Appellant, Blanco would return because he would threatened to hurt her
daughter. 3 RR 164. Moreover, when Blanco stood up to Appellant’s
violent abuse, he often instituted the “three-second rule” in which he
would choke her to unconsciousness in three seconds. 3 RR 166. On one
occasion Appellant became particularly violent and forced Blanco’s face
and head into hot water, burning her. 3 RR 172–73. Appellant did this in
front of Blanco’s daughter, who yelled at Appellant to stop. 3 RR 173.
Blanco’s daughter then called Blanco’s grandmother on a cellphone who
came over to pick them up and Appellant threatened to kill them. 3 RR
173–74. Despite the presence of Blanco’s grandmother—and her threat
to call police—Appellant refused to let Blanco leave. 3 RR 174. Blanco
also testified that Appellant contacted her from jail (after his arrest for
the present offense), and asked her to lie. 3 RR 174–75.
SUMMARY OF THE ARGUMENTS
10
The Court should overrule Appellant’s single point of error. First,
the Amended Motion for new trial in which Appellant first suggested his
desire to testify, and in which he first requested a new punishment
hearing, constituted an untimely amendment to the Original Motion.
This is because the Amended Motion was filed more than 30 days after
the trial court imposed Appellant’s sentence in open court. The State
objected on this basis in the trial court, which meant the Amended
Motion was not properly before the trial court. Since the trial court could
not have abused its discretion in denying Appellant’s motion for new trial
on that basis, the single point of error presents nothing for this Court to
review.
Second, even assuming that the Amended Motion was properly
before the trial court—and hence, that the trial court made a
discretionary decision thereto, reviewable by this Court—Appellant’s
point of error is without merit. Under Texas law there is no free-standing
obligation on the part of the trial court to either inform a defendant of his
right to testify, or to ensure that the right is properly waived. Rather, the
Texas courts place the duty to so inform on trial counsel, and analyze the
11
question of whether a defendant was denied his right to testify under the
auspices of Strickland v. Washington. 6 And because the record does not
contain any information upon which to reverse the trial court with
reference to Strickland, Appellant fails his burden and the Court should
overrule his point of error.
ARGUMENTS AND AUTHORITIES
I. Standard of Review
This Court reviews a trial court’s denial of a motion for new trial
under an abuse of discretion standard. Lewis v. State, 911 S.W.2d 1, 7
(Tex. Crim. App. 1995). “We do not substitute our judgment for that of
the trial court; rather, we decide whether the trial court’s decision was
arbitrary or unreasonable.” Holden v. State, 201 S.W.3d 761, 763 (Tex.
Crim. App. 2006). A trial court abuses its discretion denying a motion for
new trial only when no reasonable view of the record would support the
trial court’s ruling. Id.
6 466 U.S. 668 (1984).
12
II. Resolution of Appellant’s Point of Error Is Impossible Because It Is
Premised Upon Extra Record “Facts” Not Properly before the Court,
and Which Could Not Have Been Considered by the Trial Court
When Appellant’s Original Motion Was Overruled by Operation of
Law.
A. The 30-day time limit to file a motion for new trial
To be timely, a motion for new trial must be filed within 30 days of
“the date when the trial court imposes or suspends sentence in open
court.” Tex. R. App. P. 21.4(a). The same 30 day rule applies to
amendments:
To Amend. Within 30 days after the date when the trial court
imposes or suspends sentence in open court but before the
court overrules any preceding motion for new trial, a
defendant may, without leave of court, file one or more
amended motions for new trial.
Tex. R. App. P. 21.4(b). Here, Appellant’s request for a new punishment
hearing—which included the affidavit suggesting his desire to testify—
was advanced as part of the Amended Motion, filed more than 30 days
after sentencing. Hence, to the extent that the Amended Motion
constituted an “amendment” under Rule 21.4(b), it was untimely.
13
B. Appellant’s “supplemental” motion for new trial was in reality
an untimely amendment.
The law in Texas is plain: Filing affidavits in support of a motion
for new trial more than 30 days after sentencing, is considered an
untimely attempt to amend the initial motion for new trial. Dugard v.
State, 688 S.W.2d 524, 529–30 (Tex. Crim. App. 1985), overruled on other
grounds by Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App.
1989); see also Klapesky v. State, 256 S.W.3d 442, 455 (Tex. App.–Austin
2008, pet. ref’d). Since the Amended Motion—which was filed some 42
days after sentencing—contained the new legal claim described in the
affidavit (regarding Appellant’s purported desire to testify at sentencing),
it constituted an untimely amendment to the Original Motion. See
Dugard, 688 S.W.2d at 529–30; Klapesky, 256 S.W.3d at 455.
And to the extent that Appellant might argue that the Amended
Motion was merely a more detailed argument in support of the Original
Motion, his argument again fails. See State v. Zalman, 400 S.W.3d 590,
594–95 (Tex. Crim. App. 2013) (noting that counsel cannot supplement a
form motion for new trial that advances a generic claim, with an untimely
and more detailed amendment that advances a specific claim). Here,
14
there was nothing in the Original Motion that even hinted at Appellant’s
purported desire to testify; and hence, Appellant’s Amended Motion,
upon which this appeal is premised, was untimely.
C. The trial court could not have considered the Amended
Motion over the State’s objection; hence, Appellant failed to
preserve his single point of error for review.
“[I]t is error for the trial court to rule on an untimely amendment
[to a motion for new trial] over a proper objection.” Zalman, 400 S.W.3d
at 595. Here, the State objected to the Amended Motion as being
untimely. CR 47–48. As a result, the trial court was not permitted to
“rule” on the untimely amendment contained within the Amended
Motion. Zalman, 400 S.W.3d at 595. And since the order denying
Appellant’s motions for new trial (by operation law) could not have
extended to discretionary consideration of the Amended Motion, the point
of error presents nothing for this Court to review.
The same holds for the factual assertions in the affidavit itself:
A motion for new trial is a prerequisite to presenting a
point of error on appeal only when necessary to adduce facts
not in the record.
15
Tex. R. App. P. 21.2 (emphasis added). Because review of Appellant’s
point of error would require reference to a factual assertion existing
outside of the record of the trial proper, Appellant’s failure to advance the
affidavit as part of a timely motion for new trial means that his evidence
of error is not before the Court, and any error is “waived.” See Adams v.
State, 514 S.W.2d 262, 264 (Tex. Crim. App. 1974); see also Marras v.
State, 741 S.W.2d 395, 407 (Tex. Crim. App. 1987), overruled on other
grounds by Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1993) (“The
appellant failed to make this complaint at trial or in his motion for new
trial. The appellant has failed, therefore, to show this Court any violation
of Article 36.27 and has failed to overcome the presumption of regularity
in the proceedings.”). Appellant’s point of error should be overruled.
III. Even Assuming, Arguendo, that the Amended Motion was Properly
Before the Trial Court, Appellant Fails to Establish that the Trial
Court Abused its Discretion When it Denied the Amended Motion.
A. The trial court has no duty to inform a defendant that he has
a constitutional right to testify, or to ensure that a defendant’s
waiver of that right is knowing or voluntary, under Texas law
this obligation is on defense counsel.
In the interests of justice, the State alternatively addresses
Appellant’s unpreserved point of error on its merits. A criminal
16
defendant undoubtedly has a constitutional right to testify in his own
defense. See Rock v. Arkansas, 483 U.S. 44, 49–52 (1987). This right
arises from the Fifth and Sixth Amendments of the Constitution, is
personal to the defendant, and cannot be waived by counsel. Id. at 46–47.
To be effective, any waiver of the right to testify must be made knowingly
and voluntarily. Johnson v. State, 120 S.W.3d 10, 15 (Tex. App.—
Amarillo 2003), aff’d 169 S.W.3d 223 (Tex. Crim. App. 2005) (citing
Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997)).
While the right to testify occupies an important place in our
constitutional framework, the Court of Criminal Appeals (the “CCA”) has
determined that a trial court has no duty to actually inform a defendant
about that right to testify. Johnson v. State, 169 S.W.3d 223, 235 (Tex.
Crim. App. 2005) (“If the trial court is not required to admonish a
represented defendant about the right not to testify—arguably the “more
fragile right”—then the trial court surely has no duty to do so with regard
to the converse right to testify”) (emphasis in original).
Rather “defense counsel shoulders the primary responsibility to
inform the defendant of his right to testify, including the fact that the
17
ultimate decision belongs to the defendant.” Id. Moreover, in Johnson the
CCA rejected the minority approach which would have required a trial
court to affirmatively ensure that a defendant who does not testify has
knowingly waived that right. See id. at 234–35 (rejecting the minority
view “imposing on the trial court a duty to ensure a knowing waiver of
the right to testify.”).
And because “imparting that information is defense counsel’s
responsibility,” the courts are directed to apply the legal framework
described in Strickland v. Washington to measure whether a defendant’s
right to testify was effectively “denied by defense counsel.” Johnson, 169
S.W.3d at 235. In other words, the CCA has grafted Strickland’s two-part
legal measure to resolve all claims that a defendant was denied his
constitutional right to testify. Id.
To this end, the State next analyzes the requirements of Strickland
to determine if Appellant has met his burden of establishing that the trial
court’s decision not to act and to deny his Amended Motion new trial was
arbitrary or unreasonable.
18
B. Appellant has failed to meet his burden of establishing that
the trial court’s decision to deny his motion for new trial was
an arbitrary or unreasonable application of Strickland.
“Strickland v. Washington is the seminal case setting forth the
standard for ineffective assistance of counsel claims under the United
States Constitution.” Rodriguez v. State, 292 S.W.3d 187, 188 (Tex. App.–
Amarillo 2009, no writ). Strickland established a two-pronged legal
measure—reversal requires Appellant to demonstrate: (1) that counsel’s
representation fell below an objective standard of reasonableness, and (2)
the deficient performance prejudiced Appellant. Id. at 188–89 (citing
Hernandez v. State, 726 S.W.2d 53, 54–55 (Tex. Crim. App. 1986)).
The first prong of the Strickland test requires an appellant prove
that counsel made such serious errors that he did not function as the
“counsel” guaranteed by the Sixth Amendment. Id. at 189. The second
Strickland prong requires an appellant “show a reasonable probability
that, but for his counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. (citing Mitchell v. State, 68
S.W.3d 640, 642 (Tex. Crim. App. 2002)). “Reasonable probability” means
probability of a degree sufficient to undermine confidence in the outcome.
19
Id. The Strickland test for prejudice applies even in cases like this one,
in which the purported deficiency relates only to a non-capital sentencing
outcome, and not to the question of a defendant’s guilt. See Hernandez v.
State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (“Assuming Strickland
left open the question of whether a defendant is required to show
prejudice from deficient attorney performance at noncapital sentencing
proceedings, we perceive no valid reason why Strickland cannot apply, or
why a different rule should apply, to noncapital sentencing
proceedings.”).
An appellant bears the burden of proving ineffective assistance of
counsel by a preponderance of the evidence. Rodriguez, 292 S.W.3d at 189
(citing Mitchell, 68 S.W.3d at 642). The Court’s review of counsel’s
performance is highly deferential, and a strong presumption exists that
counsel’s conduct fell within a wide range of reasonable professional
assistance. Id. (citing Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.
2001)); see Strickland, 466 U.S. at 689 (noting there are countless ways
to provide effective assistance in any given case).
20
To overcome the presumption of reasonable professional assistance,
any allegation of ineffectiveness must be firmly rooted in the record.
Rodriguez, 292 S.W.3d at 189 (citing Thompson v. State, 9 S.W.3d 808,
813–14 (Tex. Crim. App. 1999)). In the majority of cases, the record on
direct appeal is inadequate to show that counsel’s conduct fell below an
objectively reasonable standard of performance; thus, the better course
is to pursue the claim in habeas proceedings. Mitchell, 68 S.W.3d at 642.
Absent evidence of counsel’s reasons for the challenged conduct, the
Court is not permitted to conclude the challenged conduct constituted
deficient performance unless the conduct was so outrageous that no
competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d
436, 440 (Tex. Crim. App. 2001).
And this burden is even higher in the present procedural posture,
because the Court is to review the two prongs of Strickland v.
Washington, through this abuse of discretion prism governing motions
for new trial, reversing only if the trial court’s decision is arbitrary or
unreasonable. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App.
2004), superseded in part by rule of appellate procedure 21.8(b) on other
21
grounds, as recognized by State v. Herndon, 215 S.W.3d 901, 905 n.5
(Tex. Crim. App. 2007); My Thi Tieu v. State, 299 S.W.3d 216, 223 (Tex.
App.—Houston [14th Dist.] 2009, pet. ref’d); Shanklin v. State, 190
S.W.3d 154, 158–59 (Tex. App.—Houston [1st Dist.] 2005), pet. dism’d,
211 S.W.3d 315 (Tex. Crim. App. 2007); State v. Gill, 967 S.W.2d 540, 542
(Tex. App.—Austin 1998, pet. ref’d) (holding that when a trial court
grants a motion for new trial on the basis of ineffective assistance of
counsel, an appellate court should review the standards of Strickland
through a prism of the abuse of discretion standard and decide whether
the trial court’s decision to grant a new trial was so outside the zone of
reasonable disagreement that it is subject to reversal). Appellant has
failed to establish a Strickland violation by means of this highly
discretionary standard.
C. Appellant fails to meet his burden under either prong of
Strickland.
The record is devoid of any evidence upon which to analyze the
lower court’s purported decision to overrule the Amended Motion for new
trial, at least with respect to this point of error. In his Amended Motion,
Appellant failed even to allege—much less to argue—that counsel was
22
constitutionally ineffective with respect to Appellant’s right to testify
during punishment. Moreover, Appellant fails to establish the required
Strickland prejudice as to his ultimate sentence; and failed even to
provide the lower court with a description of the testimony he would have
given. Appellant cannot establish prejudice because of the horrific nature
of the State’s evidence during the penalty phase of the trial. Because
Appellant provided no affirmative evidence in support of either prong of
Strickland, he necessarily fails to establish that the trial court acted
arbitrarily or unreasonably when it denied his motion for new trial. See
Holden, 201 S.W.3d at 763.
This point of error should be overruled.
23
PRAYER FOR RELIEF
FOR ALL THESE REASONS, the State respectfully requests that
this Honorable Court overrule Appellant’s single point of error and affirm
his conviction and sentence.
Respectfully submitted,
NANCY NEMER
District Attorney, Pro Tem
Assistant Attorney General
/s/ Joseph P. Corcoran
*Lead Appellate Counsel JOSEPH P. CORCORAN*
Assistant District Attorney, Pro Tem
Assistant Attorney General
Supervising Attorney
for Non-Capital Appeals
Criminal Appeals Division
State Bar No. 00793549
Joseph.Corcoran@TexasAttorneyGeneral.gov
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 936-1400
Facsimile: (512) 936-1280
ATTORNEYS FOR THE STATE
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CERTIFICATE OF SERVICE
Pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate
Procedure, I do hereby certify that a true and correct copy of the foregoing
notice was served electronically through the electronic filing manager, on
the following attorney via electronic mail:
Timothy D. Salley
State Bar No. 00795633
tsalley53@gmail.com
Moreover, I do hereby certify that a true and correct copy of the foregoing
pleading has been served directly on counsel of record on the same day of
this electronic filing, to Mr. Salley, via electronic mail.
/s/ Joseph P. Corcoran
JOSEPH P. CORCORAN
Assistant District Attorney, Pro Tem
Assistant Attorney General
25
CERTIFICATE OF COMPLIANCE WITH
TEXAS RULE OF APPELLATE PROCEDURE 9.4
This brief complies with Tex. R. App. Proc. 9.4(i)(2)(C) in that it
contains 4,109 words (excluding the sections designated in Rule 9.4(i)(1)),
in Microsoft Word 2010, Century, 14 points..
/s/ Joseph P. Corcoran
JOSEPH P. CORCORAN
Assistant District Attorney, Pro Tem
Assistant Attorney General
26