Augustus Mitchell v. State ( 2015 )

ACCEPTED
01-15-00397-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/6/2015 12:45:26 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00397-CR
In the FILED IN
Court of Appeals 1st COURT OF APPEALS
HOUSTON, TEXAS
For the 11/6/2015 12:45:26 PM
First District of Texas CHRISTOPHER A. PRINE
At Houston Clerk
♦
No. 1434115
In the 179th District Court
Of Harris County, Texas
♦
Augustus Mitchell
Appellant
v.
The State of Texas
Appellee
♦
State’s Appellate Brief
♦
Clinton A. Morgan Devon Anderson
Assistant District Attorney District Attorney
Harris County, Texas Harris County, Texas
State Bar No. 24071454
morgan_clinton@dao.hctx.net Leah Fiedler
Assistant District Attorney
1201 Franklin St., Suite 600 Harris County, Texas
Houston, Texas 77002
Telephone: 713.274.5826
Oral Argument Not Requested
Statement Regarding Oral Argument
The appellant did not request oral argument and neither does the
State.
Identification of the Parties
Counsel for the State:
Devon Anderson
 District Attorney of Harris County
Leah Fiedler
— Assistant District Attorney at trial
Clinton A. Morgan
 Assistant District Attorney on appeal
Appellant:
Augustus Mitchell
Counsel for the Appellant:
Jeffrey Karl “Jeff” Hale
— Counsel at trial
Joseph W. Varela
— Counsel on appeal
Trial Court:
Jay W. Burnett
 Presiding judge
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Table of Contents
Statement Regarding Oral Argument ................................................. i
Identification of the Parties ................................................................ i
Table of Contents ................................................................................. ii
Index of Authorities ........................................................................... iii
Statement of the Case .......................................................................... 1
Statement of Facts ................................................................................ 1
Reply to the Appellant’s Sole Point of Error ................................... 2
The record is insufficiently developed to determine that trial counsel
was ineffective for failing to object to the complained-of evidence........ 2
I. Legal Background: The law of ineffective assistance claims ........ 3
II. Argument: Thompson requires this Court to reject the
appellant’s point. ..................................................................................................... 5
Conclusion ............................................................................................. 8
Certificate of Compliance and Service .............................................. 9
ii
Index of Authorities
Cases
Bone v. State
77 S.W.3d 828 (Tex. Crim. App. 2002) ................................................................. 4
Gamble v. State
916 S.W.2d 92 (Tex. App.—
Houston [1st Dist.] 1996, no pet.) ......................................................................... 7
Mitchell v. State
68 S.W.3d 640 (Tex. Crim. App. 2002) ................................................................. 4
Rylander v. State
101 S.W.3d 107 (Tex. Crim. App. 2003) ......................................................... 4, 6
Strickland v. Washington
466 U.S. 668 (1984) ............................................................................................... 3, 4
Thompson v. State
9 S.W.3d 808 (Tex. Crim. App. 1999)............................................................... 4, 6
Thompson v. State
981 S.W.2d 319 (Tex. App.—
Houston [14th Dist.] 1998), rev’d, 9. S.W.3d 808 (Tex. Crim. App. 1999)
.............................................................................................................................................. 5
iii
Statement of the Case
The appellant was indicted for possession of a firearm at a
location other than his residence after having been convicted of a felony.
(CR 10). In an enhancement paragraph, the indictment alleged a prior
felony conviction. (CR 10). The appellant pleaded not guilty, but a jury
found him guilty as charged. (CR 61, 75). The jury found the
enhancement paragraph true and assessed punishment at twelve years’
confinement (CR 73, 75). The trial court certified the appellant’s right of
appeal and the appellant filed a notice of appeal. (CR 78, 79).
Statement of Facts
Two Houston Police officers were working extra jobs at an
apartment complex when they saw the appellant take a pistol from his
pocket and lay it on the ground. (2 RR 97-98; 3 RR 11). The officers
detained him and learned that he had a prior felony conviction. (2 RR
104).
1
Reply to the Appellant’s Sole Point of Error
The record is insufficiently developed to determine that trial
counsel was ineffective for failing to object to the complained-of
evidence.
In his sole point of error, the appellant complains that his trial
counsel was ineffective for failing to object to several documents that
were admitted as part of the appellant’s juvenile probation records. The
appellant alleges that, out of the 203 pages comprising State’s Exhibit
14, at least 10 pages contained inadmissible hearsay. (Appellant’s Brief
at 12-14). The appellant alleges that there are also unspecified “reports
of clinicians and a psychiatrist” contained in State’s Exhibit 14, and that
trial counsel was ineffective for failing to challenge the expertise of these
clinicians and psychiatrists. (Appellant’s Brief at 16-17). The appellant
concludes his list of complaints by alleging that State’s Exhibit 14
“contains other items which were objectionable,” but he does not specify
what these “items” are or why they were objectionable.
The State’s response is simple: As is usually the case, the record
on direct appeal is insufficient to allow this Court to determine that trial
counsel was ineffective. Because the appellant did not file a motion for
new trial, there was no opportunity below to obtain a response from
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trial counsel as to why he did not object to this evidence. Binding
precedent from the Court of Criminal Appeals holds that for claims of
ineffective assistance involving a single failure to object to evidence,
appellate courts cannot declare trial counsel ineffective in cases where
trial counsel has not had a chance to respond.
I. Legal Background: The law of ineffective assistance claims
As part of its general guarantee of a fair trial, the Sixth
Amendment to the federal Constitution guarantees criminal defendants
the right to effective assistance of counsel. Strickland v. Washington, 466
U.S. 668, 686 (1984). An appellant alleging this his attorney’s
performance was so bad as to constitute ineffective assistance of
counsel — an allegation that, in effect, the Sixth Amendment’s guarantee
was not kept — must show that counsel’s performance was objectively
deficient, and that the deficient performance harmed the appellant. Id.
at 687, 693.
To show deficient performance for the first part of the Strickland
test, “the appellant must prove by a preponderance of the evidence that
his counsel’s representation objectively fell below the standard of
professional norms.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.
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Ohio App. 2002). Reviewing courts are to be “highly deferential” toward the
decisions of trial counsel in making this determination, and “indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S., at 689. It is the
appellant’s burden to “prove, by a preponderance of the evidence, that
there is, in fact, no plausible professional reason for a specific act or
omission [by counsel].” Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App.
2002).
The Court of Criminal Appeals has recognized that, in most cases,
the record on direct appeal will not support a finding of deficient
performance. Rylander v. State, 101 S.W.3d 107, 110-111 (Tex. Crim.
App. 2003). “[T]rial counsel should ordinarily be afforded an
opportunity to explain his actions before being denounced as
ineffective,” id. at 111, and the absence in the record of an explanation
by trial counsel for his actions will generally defeat an ineffective
assistance claim on direct appeal. Thompson v. State, 9 S.W.3d 808, 814
(Tex. Crim. App. 1999). Matters that are outside the record may be
better addressed by a writ of habeas corpus. See id. at 814-15.
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II. Argument: Thompson requires this Court to reject the
appellant’s point.
The appellant’s claim that trial counsel was ineffective for not
objecting to certain evidence is very similar to the ineffective-assistance
claim at issue in Thompson. At Thompson’s trial, the prosecutor asked a
particular line of questions that defense counsel objected to as eliciting
“backdoor hearsay.” Thompson v. State, 981 S.W.2d 319, 322-23 (Tex.
App.—Houston [14th Dist.] 1998), rev’d, 9. S.W.3d 808 (Tex. Crim. App.
1999). The trial court sustained this objection, but the prosecutor
continued the line of questioning and defense counsel failed to make any
further objection, thus allowing the prosecutor to elicit testimony that
the trial court had, moments earlier, ruled inadmissible. Ibid. The record
contained no information from trial counsel as to why he did not object.
On direct appeal, Thompson claimed that trial counsel was
ineffective, and the Fourteenth Court of Appeals agreed, reversing the
conviction. Id. at 323-24. On discretionary review, the Court of Criminal
Appeals focused not on what the record showed, but instead on what
was missing. Because the record contained no information as to “why
appellant’s trial counsel failed to object to the State’s persistent attempt
5
to elicit inadmissible hearsay,” Thompson had “failed to rebut the
presumption that this was a reasonable decision.”1
This case involves a complaint about trial counsel failing to object
to supposedly objectionable evidence at trial, the same sort of claim at
issue in Thompson. Exactly like Thompson, the record is completely
silent as to why trial counsel did not object to the evidence. Exactly like
Thompson, the appellant complains of only one error by trial counsel.
See Thompson, 9 S.W.3d at 814 (“An appellate court should be especially
hesitant to declare counsel ineffective based upon a single alleged
miscalculation during what amounts to otherwise satisfactory
representation, especially when the record provides no discernible
1 While it has become the norm for the parties and appellate courts to speculate
about what possible reason trial counsel might have had for the complained-of
omission, the Thompson court felt no need to engage in such speculation. Appellate
lawyers and judges have a different skillset and area of expertise from trial lawyers,
and counsel at trial is always privy to significant information that does not make it
into the appellate record. Whether appellate lawyers can read an appellate record
and come up with a reasonable basis for a particular act or omission of trial counsel
is a completely different question from whether trial counsel actually had a
reasonable basis for a particular act or omission. See also Rylander, 101 S.W.3d at
110-11 (without speculation into trial counsel’s reasoning, holding that silent record
defeated ineffective-assistance claim on direct appeal).
For what it is worth, the State’s appellate counsel supposes trial counsel
might have believed it better to allow hearsay documents into evidence than to
object and prompt the State to call additional witnesses. The appellant points out
that the State did not subpoena any additional witnesses (Appellant’s Brief at 16),
but the lack of subpoenas is not proof that the witnesses were actually unavailable.
6
explanation of the motivation behind counsel’s actions—whether those
actions were of strategic design or the result of negligent conduct.”).
Therefore, this Court should hold exactly as the Court of Criminal
Appeals held in Thompson: There is not enough information in the
record to allow a conclusion that trial counsel was constitutionally
ineffective. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston
[1st Dist.] 1996, no pet.) (where defendant complained of, inter alia,
trial counsel’s failure to object to inadmissible evidence, but record was
silent as to trial counsel’s reasons, there was insufficient evidence to
overcome presumption of reasonably effective assistance). The
appellant’s claim would be better evaluated on a writ of habeas corpus,
where a record can be developed and trial counsel’s actions can be more
fully examined.
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Conclusion
The State respectfully submits that all things are regular and the
judgment of the trial court should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.274.5826
Texas Bar No. 24071454
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Certificate of Compliance and Service
I certify that, according to Microsoft Word’s word counting
function, the portion of this brief for which Rule of Appellate Procedure
9.4(i)(1) requires a word count contains 1,307 words.
I also certify that I have requested that efile.txcourts.gov
electronically serve a copy of this brief to:
Joseph W. Varela
jwvarela@gmail.com
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
713.274.5826
Texas Bar No. 24071454
Date: November 6, 2015
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