Dyise, Ricky Allen ( 2018 )

PD-1364-17
March 9, 2018
NO. _
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
RICKY ALLEN DYISE,
Appellant/Petitioner
VS.
THE STATE OF TEXAS,
Appellee/Respondent
ON APPEAL IN CAUSE NO. 05-16-01408-CR
FROM THE FIFTH DISTRICT OF TEXAS AT DALLAS
IN CAUSE NO. F16-54228-M
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Juanita Bravo Edgecomb
State Bar No: 24029529
Attorney for Appellant
- 306 Sixth St.
Waxahachie, TX 75165
(972) 845-7131 (PH)
(469) 342-8057 (fax)
edgelaw@live.com
LIST OF PARTIES
APPELLANT
Ricky Allen Dyise
APPELLEE
The State of Texas
DEFENSE COUNSEL AT TRIAL
Nicolas Quezada
Dallas County Public Defender's Office
133 N. Riverfront Blvd,
Dallas, TX 75207
TRIAL COURT JUDGE
The Honorable Ernest White
194thDistrict Court of Dallas County, Texas
133 N. Riverfront Blvd, 7thFl.
Dallas, TX 75207-4313
STATE'S ATTORNEY AT TRIAL
Meredith BehgQ9Y
,,
Frank Crowley Criminal Courts Building
133 N. Riverfront Blvd
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Dallas, TX 752Q7-4313
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APPELLANT'S ATTORNEY AT 5TH COURT OF APPEALS
Juanita Bravo ~qgecomb
Attorney at Law"...
306 Sixth Street.,
Waxahachie, T~~as 75165
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STATE'S ATTORNEY ON APPEAL
Grace E. Shin , f
Frank Crowley Criminal Courts Building
133 N. Riverfrortt Blvd
Dallas, TX 752Q7-4313
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STATE'S PROSECUTING ATTORNEY
P. 0 Box 12405
Austin, Texas 78711
APPELLATE COURT JUDGES:
The Honorable Francis, Evans and Boatright
5th Court of Appeals
600 Commerce St, Suite 200
Dallas, Texas 75202
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TABLE OF CONTENTS
IDENTITY OF ·PARTIES 11-111
TABLE OF CONTENTS .iv
INDEX OF AUTHORITIES v
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF THE CASE 1
STATEMENT OF PROCEDURAL HISTORY 2
GROUND FOR REVIEW NO. 1 3
The Court of Appeals erred in reaching its conclusion that the
Record was unclear as to whether Appellant's trial counsel
provided effective representation by failing to investigate
Appellant's priors and "opening the door" to extraneous offenses
and/or~ad character evidence when the record clearly reflected
that if served no purpose to inquire into Appellant's violent
demeaner other than to prejudice Appellant's ability to present a
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defense.
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PRAYERFOR.RELIEF
,._. 13
CERTIFICATE OF SERVICE 14
APPENDIX A: [COA Opinion] 15
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IV
INDEX OF AUTHORITIES
CASES:
Abnor v. State,
871 S.W.2d 726 (Tex. Crim. App. 1994) 7
Andrews v. State,
159 S.W.3d 98 (Tex. Crim. App. 2005) : 7
Black v.State, .:
816 S.W.2d 350 (Tex. Crim. App. 1991) 5
Butler v. State,
716 S.W.2d 48 (Tex. Crim. App. 1986) 9
Cook v. State,
240 S.W.3d 906 (Tex. Crim. App. 2007) 9
"
Doles v. State,
786 S.W.f,d 741 (Tex. App. - Tyler 1989, no pet.) 8
"
.)
Ex parte Harrington,
310 S.W.3d 452 (Tex. Crim. App. 2010) 9
Garcia v. State,
308 S.W.3d 62 (Tex. App. - San Antonio, 2009) 7-8
Hernandez v. State,
726 S.W.2d 53 (Tex. Crim. App. 1986) 5
':t.
Jackson v. State,
857 S.W.2d 678 (Tex. App. - Houston [14thDist.] 1993, pet. ref'd) 9
Me Wherter v. State,
624 S.W.7'p
~...
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712 (Tex. App. - Houston [14thDist.] 1981)
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10
v
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Melgar v. State"
236 S.W.3d 302 (Tex. App - Houston [1stDist.], 2007, pet. refd) 10
Nobles v. State,
843 S.W.2d 503 (Tex. Crim. App. 1992) 7
Powell v. State, '
63 S.W.3d 435 (Tex. Crim. App. 2001) 10
Robbins v. State"
88 S.W.3d' 256 (Tex. Crim. App. 2002) 10
, ,
Robertson v. State,
187 s.w.s; 475 (Tex. Crim. App. 2006) 7
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Robertson v. State,
214 S.W.3d 665 (Tex. App. - Waco, 2007) 7
Stokes v. State,
298 S.W.3d 428 (Tex. App. - Houston [14th Dist.] 2009, pet. refd) 9
(:
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Strickland v. Washington,
466 U.S. 668 (1984) 5
Code
TEX. CODE CRIMi;PROC. ART 37.07, SEC.3(g) 6
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Statutes
TEX. CONST., ARt. I § 10 5
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U.S. CONST. VI:: x
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U.S. CONST. XIV x
VI
Rules
TEX. R. EVID. 403 10
TEX. R. EVID. 404(a) 10
TEX. R. EVID. 404(b) 10
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TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
Appellant/Petitioner respectfully submits this Petition for Discretionary
Review and moves that this Honorable Court grant review of this cause and offers
the following in support thereof:
STATEMENT REGARDING ORAL ARGUMENT
The Appellant/Petitioner requests oral argument in this case because such
argument may assist the Court in applying the facts to the issues raised. It is
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suggested that oral argument may help simplify the facts and clarify the issues.
STATEMENT OF THE CASE
Appellant was convicted of ObstructionlRetaliation. Appellant was found
guilty and subsequently assessed a punishment at ten (10) years imprisonment,
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suspended for six (6) years community supervision, and a $1,000 fine.
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PROCEDURAL HISTORY
In Cause No. F 16-54228 the AppellantlPetitioner was charged with the
offense: Obstruction / Retaliation in the 194th District Court of Dallas County, the
Honorable Ernest White, presiding. The AppellantlPetitioner was convicted of
such offense on October 20, 2016 and appealed the conviction. On December 8,
2017, the 5th Court of Appeals affirmed the conviction. No motion for rehearing
was filed. On February 20, 2018 this Petition for Discretionary Review was timely
forwarded to the Court of Appeals for filing pursuant to Rule 9.2(b), Texas Rules
of Appellate Procedure.
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GROUND FOR REVIEW No.1
The Court of Appeals erred in reaching its conclusion that the
Record was unclear as to whether Appellant's trial counsel
provided effective representation by failing to investigate
Appellant's priors and "opening the door" to extraneous offenses
and/or bad character evidence when the record clearly reflected
that it served no purpose to inquire into Appellant's violent
demeanor other than to prejudice Appellant's ability to present a
defense.
ARGUMENT NUMBER ONE
At trial, Appellant's trial counsel "opened the door" to extraneous offenses
which benefitted the State to introduce Appellant's extensive criminal record .
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Appellant's trial attorney, then failed to object to the introduction of these
extraneous offenses. Defense counsel also admitted, on the record, that he failed to
investigate the nature of these extraneous offenses which again, "opened the door"
to bad character evidence. This failure allowed the State to paint Appellant as the
type of person who acted in conformity with the charged behavior and was
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therefore more likely to have committed the charged offense.
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No reasonably competent attorney would have "opened the door" to
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extraneous offense in such circumstances unless the trial attorney was not familiar
with Appellant's criminal history. There could be no possible trial strategy for
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failing to investigate your own client's criminal history, particularly one on trial for
a Retaliation case coupled with a history of a violent past, and then asking him:
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"do you consider yourself in any way, shape, or form a violent person?" (RR3:
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161-164). Counsel's failure to investigate Appellant's criminal record fell below an
objective standard of reasonableness and likely prejudiced the outcome of
Appellant's trial
The Fifth-Court of Appeals rejected Appellant's ineffective assistance of
counsel claim because it argued rarely will the record "on direct appeal" be
developed to apoint that it can "adequately reflect the failings of trial counsel."
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(Mem. Op. at * 5). Therefore, the Court reasoned that when direct evidence is not
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available, it assumed counsel had a strategy, "if any reasonably sound strategic
motivation can be imagined." Id. The Court used this finding to dispose of
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Appellant's claim of ineffective assistance of counsel, reasoning that "a silent
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record" which offers no explanation for trial counsel's strategy cannot be
"denounced as ineffective" because the record provides "no explanation for
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counsel's actions or omissions." Id. at *5-6 .
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Contrary to the Court of Appeals OpInIOn, the law and the record
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demonstrate that the Court of Appeals should have reversed and remanded this
case for a new trial because (1) there can be no possible reasonable trial strategy
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for "throwing your client under the bus" and (2) the record is clear there was no
objectively reasonable explanation' for trial counsel's failure to investigate his own
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client's criminal history and then concede he had erred in "opening the door" and
then file a motion in limine to preclude the state from introducing the violent
criminal history, and then ask his own client about the very evidence he attempted
to prevent the state from introducing. Trial counsel's actions constituted ineffective
assistance of counsel.
A criminal defendant is entitled to effective representation at trial. U.S.
CONST.Amends VI, XIV; TEX. CONST. Art. I §10. To establish an ineffective
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assistance of counsel claim, a defendant must show that: (1) his counsel's
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representation fell below an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for his counsel's unprofessional errors, the result of
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the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
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689 (1984); Black v. State, 816 S.W.2d 350, 356 (Tex. Crim. App. 1991);
Hernandez v. State, 726 S.W.2d 53-55 (Tex. Crim. App. 1986).
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Under the first part of the Strickland test, deficient performance is
established by showing that counsel made errors so serious that counsel was not
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functioning as the "counsel guaranteed" by the Sixth Amendment. Strickland, 466
U.S. at 687. Under the second part of the Strickland test, prejudice is established
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by showing that counsel's errors were so serious as to deprive the defendant of a
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fair trial; l.e., that there is a reasonable probability that, but for counsel's
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unprofessional errors, the result of the proceeding would have been different. Id. at
694, 687. On direct appeal, the question of whether Appellant's trial counsel was
ineffective focused on there being "no record" to establish trial counsel's strategy.
The Trial Record - Extraneous Offenses:
1) Prior to trial, the State filed: "State's Notice of Intent to Introduce Evidence
of Extraneous Offenses pursuant to Tex. R. Crim. Evid. 404(b), Tex. Code
Crim Proc. Art. 37.07, see 3(g)." (CR: 37-40).
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2) Appellant's counsel made an "on record" argument referencing the State's
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Notice and filed his own Motion in Limine asking that the State not be
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allowed to go into Appellant's prior convictions unless they approached .
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(RR2: 4-5) (RR3: 6).
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3) Appellant's trial attorney was clearly aware of Appellant's pnors: "the
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officer who wrote the report mentions that as one of the basis, I guess,
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for his fear, which is sort of an element of the offense, he says that the
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defendant has a prior violent history." (RR2: 5-6).
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4) During the cross of the officer who wrote the report, Appellant's trial
counsel inquired into why he "feared" Appellant. (RR3: 72-74).
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5) The State argued Appellant "opened the door" to extraneous offenses; the
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court agreed; Appellant's trial counsel did not object, but merely stated:
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"Sure, I understand." (RR3: 72-74).
An accused may be tried only for the offense charged and not for some
collateral crime or for being a criminal generally. Nobles v. State, 843 S.W.2d 503,
514 (Tex. Crim. App. 1992). The introduction of extraneous offenses to the jury is
inherently prejudicial and can harm a defendant because it requires the defendant
to defend against not only the charged offense but also his uncharged actions.
Abnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994).
Defense counsel can be held to be ineffective if there is no reasonable trial
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strategy for bringing inadmissible prior convictions to light. Garcia v. State, 308
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S.W.3d 62, 68 (Tex. App. - San Antonio, 2009). When there is no reasonable trial
strategy that can justify trial counsel's conduct, counsel's performance falls below
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an objective standard of reasonableness as a matter of law, regardless of whether
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the record adequately reflects trial counsel's subjective reasons for acting as he did.
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Andrews v. State, 159 S.W.3d 98, 101-102 (Tex. Crim. App. 2005); Robertson v.
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State, 187 S.W.3d 475 (Tex. Crim. App. 2006), reversed and remanded by
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Robertson v. Stale, 214 S.W.3d 665 (Tex. App. - Waco, 2007).
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There is no strategic value to allow admission of prejudicial and clearly
it
inadmissible evidence. Robertson v. State, 187 S.W.3d at 484-86 (holding that
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where defense. depended on defendant's credibility, there was no possible
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reasonable strategy and defense counsel rendered deficient performance by
intentionally eliciting and opening the door to otherwise inadmissible evidence);
See also Garcia v. State, 308 S.W.3d at 68-69 (Tex. App. - San Antonio, 2009, no
pet. ) (defense counsel opening door to extraneous offenses served no purpose other
than prejudicing defendant's ability to present a defense); Doles v. State, 786
S.W.2d 741, 74~ (Tex. App. - Tyler 1989, no pet.) (trial counsel's failure to make
objections to evidence of extraneous offenses was ineffective assistance which
adversely affected appellant's defense).
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The Trial Record - Failure to Investigate:
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1) Appellant testified on his own behalf. During direct, his trial attorney asked
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him: "do you consider yourself to be in any way, shape, or form a violent
person?" ~ppellant denied he was a violent person. (RR3: 161).
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2) The State argued Appellant "opened the door" to bad character evidence.
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(RR3: 164, 171).
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3) Appellant's violent priors came into evidence which included notice of a
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protectiveorder issued against Appellant. (RR3: 178-180).
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4) Appellant's trial attorney argued he had not reviewed the protective order
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prior to trial, although a copy was available for his view on Monday. (RR3:
180-182).
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5) The trial court asked trial counsel: "any reason you didn't ask to see it
on Monday?" Trial counsel replied: "No, your Honor." (RR3: 180-182).
An ineffective assistance of counsel claim may be based on inadequate
performance during the investigation or preparation of the case. Butler v. State, 716
S.W.2d 48, 54-57 (Tex. Crim. App. 1986); Jackson v. State, 857 S.W.2d 678, 683
(Tex. App. - Houston [14th Dist.] 1993, pet. refd). However, a claim for
ineffective assistance based on trial counsel's general failure to investigate fails
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absent a showing of what the investigation would have revealed that reasonably
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could have changed the result of the case. Cook v. State, 240 S.W.3d 906, 912
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(Tex. Crim. App. 2007); Stokes v. State, 298 S.W.3d 428, 432 (Tex. App. -
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Houston [14th Dist.] 2009, pet. refd); See also Ex parte Harrington, 310 S.W.3d
).
452, 459 (Tex. Crim. App. 2010) (counsel's failure to conduct even a cursory
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investigation into a prior DWI conviction which was used to enhance to a felony
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DWI constituted deficient performance).
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In this case, trial counsel's error reasonably changed the result of the trial
given that the State was given the opportunity to question Appellant about specific
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instances of conduct including that a protective order existed, that he got into fights
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and interfered with public duties. (RR3: 183, 186). As such, trial counsel's
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representation can only be characterized as ineffective.
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The Trial Record - Bad Character Evidence:
1) Appellant's trial counsel elicited the following exchange:
[COUNSEL]: I mean, do you - do you - do you consider yourself to
be in any way, shape, or form a violent person?
[DYISE]: I'm not a violent person.
(RR3: 161).
2) The State argued Appellant "opened the door" to bad character evidence.
(RR3: 16~, 171).
3) Appellant's violent priors came into evidence. (RR3: 178-180).
In general., evidence of a pertinent character trait offered by an accused in a
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criminal case, or by the prosecution to rebut the same, is admissible. Tex. R. Evid.
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404(a)(1)(A). Texas law provides, "[e]vidence of other crimes, wrongs or acts is
not admissible to prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other purposes, such as
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proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
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absence of mistake or accident." TEX. R. EVID. 404(b). Despite its admissibility
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under Rule 404(b), or any other rule of evidence, "evidence may be excluded if its
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probative value is substantially outweighed by the danger of unfair prejudice."
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TEX.R. EVID.403.
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The introduction of character evidence may be admissible when it is relevant
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to a noncharacter conformity fact of consequence in the case, such as rebutting a
defensive theory. Robbins v. State, 88 S.W.3d 256, 259 (Tex. Crim. App. 2002);
Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Generally, character
evidence is not admissible to show that a person acted in conformity with a
character trait on:a particular occasion. Tex. R. Evid. 404(a). However, an accused
in a criminal case is permitted to introduce evidence of a specific good-character
trait to show that it is improbable that he committed the charged offense, when that
character trait i~'relevant to the offense. ld. A "pertinent character trait" relates to
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a trait involved in the offense charged or a defense raised. Melgar v. State, 236
(
S.W.3d 302, 306-307 (Tex. App - Houston [1stDist.], 2007, pet. ref d). When the
accused believes that his case will be strengthened by proof of his good character,
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the door may be opened to proof by the prosecution that the accused's character is
actually bad. McWherter v. State, 624 S.W.2d 712 (Tex. App. - Houston [14th
Dist.] 1981).
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In a prosecution for a crime of violence, the defendant's character for being
peaceful is pertinent, because evidence of peaceful character makes it less likely
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that the defendant committed the crime charged. ld. By asking Appellant if he
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considered himself to be a "violent person" in a retaliation case was clearly a high
risk move especially when trial counsel admitted he did not investigate his prior
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offenses. Trial counsel opened the door to the very evidence he tried to exclude in
his Motion in Limine. Once Appellant denied he was a violent person, the State
exploited the bad character evidence and argued it was admissible to rebut any
defensive theory that Appellant had "never before been in this much trouble."
(RR3: 177).
Appellant's trial counsel fell below an objective standard of reasonableness
because he questioned the witness and his own client about his own client's priors
without conducting an investigation into the priors and by inquiring into a
witnesses' fears when he knew what the answer would be. There could be no
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possible strategy for the inquiry unless you intend to prejudice your client to the
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point that it prevents Appellant from receiving a fair trial and there is a reasonable
probability that, but for his trial counsel's unprofessional errors, the result of the
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proceeding would have been different.
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Failing to investigate opened the door to Appellant's prior violent criminal
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record. Up to that point, the jury had a mental picture of a homeless man who got
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into an altercation with an officer. This could have resulted in an acquittal rather
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than conviction.'
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The Court of Appeals improperly concluded there was no explanation for
trial counsel's actions or omissions, therefore he could not be "denounced as
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ineffective." Tr-ial counsel admitted, on the record, he had "no reason" for his
failure to investigate and given his actions, there is no possible sound strategic
motivation which can be imagined but to prejudice Appellant. Appellant is entitled
to have his conviction reversed and his cause remanded for a new trial.
PRAYER FOR RELIEF
For the reasons stated above, it is respectfully submitted that the Court of
Criminal Appeals of Texas should grant this Petition for Discretionary Review.
d:
Respectfully submitted,
/S/ Juanita Bravo Edgecomb
Juanita Bravo Edgecomb
State Bar Number: 24029529
ATTORNEY FOR APPELLANT
306 Sixth St.
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"••-t.
". Waxahachie, Texas 75165
(972) 845-7137 (telephone)
(469) 342-8057 (fax)
edgelaw@live.com
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CERTIFICATE OF SERVICE
The undersigned Appellant/Petitioner hereby certifies that a true and correct copy
of the foregoing Petition for Discretionary Review has been hand delivered and e-
served to the District Attorney, Appellate Division, Frank Crowley Criminal
Courts Building, 133 N. Riverfront Blvd., Dallas, TX 75207 and mailed to the
State Prosecuting Attorney, P. O. Box 12405, Austin, Texas 78711, on this the 8th
day of March, 2018.
/S/ Juanita Bravo Edgecomb
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! Juanita Bravo Edgecomb
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Appendix
A
[ATTACH COpy OF OPINION]
15
Affirmed as Modified and Opinion Filed December 8, 2017
In The
Qrnurt of Appea15
lfl'iftl1lllintri.ct of Wexan at lllallan
No.05-16-01408-CR
RICKY ALLEN DYISE, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1654228-M
MEMORANDUM OPINION
Before Justices Francis, Evans, and Boatright
Opinion by Justice Francis
After a jury convicted Ricky Allen Dyise of retaliation for threatening to assault a police
officer who had arrested him, the trial court assessed punishment at ten years in prison,
suspended for six years' community supervision, and a $1,000 fine. In a single issue, appellant
contends he received ineffective assistance of counsel. For reasons discussed below, we overrule
this issue. On our own motion, we modify the trial court's judgment to reflect the trial court
assessed punishment, which included a fine. We affirm the judgment as modified.
Appellant is homeless and lives on the streets of Dallas. Police Sgt. Ross Stinson was
assigned to the Central Business District, an area of downtown Dallas with a homeless
population. Stinson was on patrol on April 23, 20] 6 when he saw appellant asleep on the
sidewalk and "jostled" his foot to awaken him. He asked if appellant was okay and told him to
go somewhere else to sleep. After complaining, appellant walked away but then returned.
Officer Brad Hance was at the scene with Stinson. Hance checked appellant's ID and
discovered three outstanding warrants for public intoxication. When Stinson told appellant he
was being arrested on warrants, appellant began walking away. Appellant became irate and
"balled his fist." To deescalate the situation, Stinson pulled out his Taser and told appellant
again that he was under arrest. The officers were then able to handcuff appellant.
Hance transported appellant to the City Detention Center. During the drive, Hance said
appellant was "very upset" and "very loud" and said, several times, that if Stinson had tased him,
appellant would have killed him. Appellant also said that if Stinson did not "quit fucking with
people" in that area, he was "going to get killed." Once they arrived at the CDC, appellant saw
Stinson and loudly said if "you pull a Taser at me again, I'm gonna shoot you in the head."
Sgt. Timothy Parker of the Dallas Marshal's Office was on duty at the CDC when
appellant was brought in. Appellant was irate, screaming, and perspiring. Appellant was
looking over his shoulder and making statements to Officer Hance "to the effect that mother - -
needs to watch out; somebody's going to kill him; if he'd hit me, I'd - - I'd shot him." Parker
subsequently learned appellant was referring to Stinson, who was in the back writing his arrest
report. Appellant stood out to Parker because, unlike many of the arrestees who went through
the CDC and made threats, appellant did not appear to be drunk or high. Rather, Parker said
appellant was "just extremely violent" and was "grunting" and "snorting" and using his head to
"punctuate what he was saying."
When Stinson finished making his report and walked out of the back of the building,
Parker and Hance told him about the threats appellant had been making. Although he was
concerned, Stinson said he decided to take the matter "under advisement" and, instead of
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arresting appellant, wrote up a bulletin about appellant to give a "heads up" to other officers who
might come in contact with him.
Five days later, on April 28, Stinson was driving through the same downtown
neighborhood with his car windows down when he saw someone staring at him from a crowd of
people. He realized it was appellant. While staring at Stinson, appellant said, "I'm going to fuck
you up," and took a "combative stance" with his fists balled up. Stinson recalled the previous
threats and was also concerned that appellant's willingness to fight a police officer might lead to
his harming a random citizen. So, Stinson stopped and told appellant to come over and place his
hands on his vehicle. Appellant refused. Appellant began to shed his clothes, which Stinson
believed indicated appellant was preparing for a street fight. Stinson pulled his Taser and called
for backup. Ultimately, other officers arrived and appellant was arrested.
Stinson said appellant made threats against him and his family, saying he would kill
anybody Stinson loved and "there's nothing safe." According to Stinson, appellant said he was
going to kill him and that "you're going to get yours." What particularly concerned Stinson was
appellant's statement, "It's not a threat, it's a promise." Stinson was concerned because he and
his wife lived in the neighborhood and were frequently in that area. A recording of appellant
after he had been restrained was admitted into evidence. On the recording, appellant can be
heard talking about the Taser. When the officer asked if he was making threats, appellant
responds, "I'm not making no threats; that's a promise." Minutes later, he repeatedly tells the
officers standing around him, "Y'all are not going to shock me and get away with it--ever."
On redirect, the trial court allowed Stinson to testify that appellant's criminal background
showed appellant had threatened and committed violent crimes in the past. When asked about
those offenses, Stinson said he believed there was one retaliation and "like an agg assault." The
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trial court determined appellant's counsel opened the door to this evidence by asking Stinson
what specifically caused him to fear appellant.
Appellant testified he did not remember interacting with Stinson during the April 23
incident and did not remember anyone pulling a Taser. He did remember Stinson from the April
28 incident. Appellant said he was walking down the street and could feel someone following
behind him in a car. When he looked back, he saw Stinson and said, "What the ef are you
looking at." He believed Stinson misheard this statement to be, "I'm going to fuck you up."
Appellant denied trying to provoke a fight that day and said his fists were balled up
because he was bracing for being tased. At one point, he testified he normally did not get in
"this much trouble," which prompted the State to argue appellant had opened the door to prior
criminal convictions. The trial court agreed and allowed the jury to hear evidence that appellant
had a protective order issued against him and had 2008 convictions for interfering with public
duties and two criminal trespasses, all involving a former girlfriend, as well as convictions in
2000 for theft and criminal trespass. Appellant denied making any threats to kill Stinson or his
family and said he harbored no ill will.
In his sole issue, appellant contends counsel provided ineffective assistance. Appellant
complains defense counsel either "opened the door" or failed to object to the introduction of
extraneous offense and bad character evidence, failed to object to the State's argument that he
opened the door to extraneous offenses, and failed to investigate appellant's prior offenses listed
in the State's notice of intent to introduce evidence of extraneous offenses.
A substantial risk of failure accompanies an appellant's claim of ineffective assistance of
counsel on direct appeal. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Rarely will a reviewing court be provided the opportunity to make its determination on direct
appeal with a record capable of providing a fair evaluation of the merits of the claim involving
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such a serious allegation. Id. In the majority of instances, the record on direct appeal is simply
undeveloped and cannot adequately reflect the failings of trial counsel. Id.
To prevail on a claim of ineffective assistance of counsel, an appellant must show that (1)
counsel's representation fell below an objective standard of reasonableness and (2) the deficient
performance prejudiced the defense; that is, but for the deficiency, there is a reasonable
probability that the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 689 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011). Unless appellant can prove both prongs, an appellate court must not find counsel's
representation to be ineffective. Lopez, 343 S.W.3d at 142.
We must make a "strong presumption that counsel's performance fell within the wide
range of reasonably professional assistance." !d. To find counsel ineffective, counsel's
deficiency must be affirmatively demonstrated in the record, and we must not engage in
retrospective speculation. Id. When such direct evidence is not available, we will assume that
counsel had a strategy if any reasonably sound strategic motivation can be imagined. Id.
The court of criminal appeals has made clear that, in most cases, a silent record which
provides no explanation for counsel's actions will not overcome the strong presumption of
reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Further,
counsel should ordinarily be accorded the opportunity to explain his actions before being
denounced as ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).
Because the reasonableness oftrial counsel's choices often involve facts that do not appear in the
appellate record, an application for writ of habeas corpus is the more appropriate vehicle to raise
ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640,642 (Tex. Crim.
App.2002).
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Here, appellant filed a motion for new trial but did not raise a complaint of ineffective
assistance of counsel; consequently, the record before us provides no explanation for counsel's
actions or omissions. From this record, one could conclude there were legitimate and
professionally sound reasons for counsel's conduct or one could speculate that there were not.
And, trial counsel has not been given an opportunity to explain. Under these circumstances, we
cannot conclude appellant met the requirements of Strickland. We overrule the sole issue.
Although neither party has raised the issue, our review of the record reveals two errors in
the judgment. The judgment shows the jury assessed punishment and it does not reflect a fine.
The reporter's record, however, shows the trial court assessed punishment, which included a
$1,000 fine.' We have authority to correct a judgment below to make the record "speak the
truth" when we have the necessary data and information to do so. Asberry v. State, 813 S.W.2d
526, 529 (Tex. App.-Dallas 1991, pet. ref' d). Accordingly, we modify the judgment to reflect
the trial court assessed punishment, which included a $1000 fine.
We affirm the trial court's judgment as modified.
/Molly Francis/
MOLL Y FRANCIS
JUSTICE
Do Not Publish
TEX.R. ApP. P. 47.2(b)
161408F.U05
I Acknowledging appellant had no money, the trial court allowed appellant's back time "to take care of the fine and all court cost."