Gerald Ray Barrow v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00046-CR
GERALD RAY BARROW, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court
Hale County, Texas
Trial Court No. 2012C-427, Honorable Bill Coleman, Presiding
November 4, 2015
DISSENTING OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
This appeal was originally abated when the State appealed a new trial granted by
the trial court based upon an implied finding of ineffective assistance of counsel. On
July 16, 2014, this court issued a plurality opinion in State v. Barrow, finding the trial
court abused its discretion when it granted that new trial.1 Barrow’s motion for
1
State v. Barrow, No. 07-13-00147-CR, 2014 Tex. App. LEXIS 7762 (Tex. App.—Amarillo July
16, 2014, pet. ref’d) (mem. op., not designated for publication), Justice Campbell writing for the court.
Chief Justice Quinn filed a concurring opinion and Justice Pirtle filed a dissenting opinion.
rehearing was overruled,2 and a petition for discretionary review was refused by the
Court of Criminal Appeals.3
The abatement having now been lifted, this court has once again found that
Barrow’s ineffective assistance claim fails because “the court did not have before it
evidence of [trial counsel’s] reasons for focusing on urging the jury to honor Shirley
Barrow’s wishes rather than pursuing a claim of self-defense.” With myopic precision,
the court again focuses on the absence of direct evidence concerning counsel’s trial
strategy, ignoring all other evidence upon which a finding of ineffective assistance could
be based. Because I did not believe then, and I do not believe now, that direct evidence
of trial counsel’s trial strategy is some sort of talisman essential to a finding of ineffective
assistance of counsel, I respectfully dissent. See Ex parte Bryant, 448 S.W.3d 29, 39-
40 (Tex. Crim. App. 2014) (holding that “when no reasonable strategy could justify trial
counsel’s conduct . . . counsel’s performance falls below an objective standard of
reasonableness as a matter of law, regardless of whether the record adequately reflects
the trial counsel’s subjective reasons for acting as he did”).
Patrick A. Pirtle
Justice
Do not publish.
2
State v. Barrow, No. 07-13-00147-CR, 2014 Tex. App. LEXIS 9332 (Tex. App.—Amarillo Aug.
20, 2014, pet ref’d) (with notation that Pirtle, J., would grant the motion for rehearing).
3
State v. Barrow, No. PD-1268-14, 2015 Tex. Crim. App. LEXIS 70 (Tex. Crim. App. Feb. 4,
2015).
2