William Mitchell v. State ( 2000 )

DISSENTING OPINION No. 04-96-00643-CR William MITCHELL, Appellant, v. The STATE of Texas, Appellee. From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 94-CR-5398 Honorable Raymond Angelini, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Dissenting opinion by: Sarah B. Duncan, Justice, joined by Justice Paul W. Green

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. López, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: June 30, 2000

Now, as on original submission, Mitchell is not entitled to a reversal of the judgment on the ground of ineffective assistance of counsel because a "preponderance of the evidence" in the record does not establish "'there is a reasonable probability that the result of the trial would have been different absent the deficient conduct.'" Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996) (quoting Washington v. State, 771 S.W.2d 537, 545 (Tex. Crim. App.), cert. denied, 492 U.S. 912 (1989)). Now, as on original submission, a preponderance of the evidence clearly establishes the absence of prejudice. As Chief Judge McCormick wrote for a unanimous court:

Appellant was charged with using a firearm during a robbery at a convenience store. The victim of the robbery identified appellant from a photo spread the day after the robbery. She identified him at trial. She also testified that during the robbery appellant raised his shirt which revealed a gun tucked into the waistband of his pants. The prosecution introduced into evidence a videotape from the convenience store clearly showing appellant committing the robbery and raising his shirt.

Mitchell v. State, 989 S.W.2d 747, 747 (Tex. Crim. App. 1999). Because the majority errs in "finding" prejudice on this record, I dissent.

Sarah B. Duncan, Justice

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