Michael Horton v. State ( 2003 )

NO. 07-03-0228-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 25, 2003
______________________________
MICHAEL HORTON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 159TH DISTRICT COURT OF ANGELINA COUNTY;
NO. CR-22,860; HONORABLE PAUL E. WHITE, JUDGE
_______________________________
Memorandum Opinion
_______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
Through one issue, appellant Michael Horton challenges his conviction for burglary
of a habitation. After he pled guilty, the issue of punishment was submitted to the trial
court for resolution. According to appellant, his counsel was ineffective during that portion
of the trial because he “allowed [appellant’s] illegally obtained confession to be admitted
into evidence.” We affirm the judgment.
The standard by which we review a claim of ineffective assistance is well
established. Rather than repeat it, we cite the parties to Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), Bone v. State, 77 S.W.3d 828 (Tex.
Crim. App. 2002), Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999), and Rios v.
State, 990 S.W.2d 382 (Tex. App.--Amarillo 1999, no pet.) for its explanation.
Next, according to the record, counsel for appellant objected to the admission of the
confession when it was first offered into evidence. He believed it to be duplicitous,
hearsay, and irrelevant. The objections were overruled, and the tape was then heard by
the trial court. Further examination of the witness through which the confession was
proffered revealed that appellant was not afforded his Miranda warnings before making the
statement. Counsel then objected to the admission of the tape on that ground. The trial
court sustained the objection and struck the confession from the record. Counsel having
objected to the admission of the tape at four different times and having ultimately
succeeded in excluding it from evidence does not evince the rendition of unreasonably
deficient assistance. See Marlow v. State, 886 S.W.2d 314, 318-19 (Tex. App.--Houston
[1st Dist.] 1994, pet. ref’d) (holding that counsel was not ineffective for failing to object to
the admission of the State’s exhibit when the record showed he objected four times, with
the first three being sustained and only the last one being overruled). Thus, appellant has
failed to satisfy the first element of the test espoused in Strickland, and its progeny.1
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We also note that appellant failed to brief whether the confession was actually obtained in violation
of the law and was therefore susceptible to exclusion. Nor can he rely on the trial court’s decision to exclude
the statement as proof of its inadmissibility. This is so because the trial court decided to exclude the
statement “[o]ut of an abundance of caution” and because neither counsel provided him authority on the
matter. So, before it can be said that counsel was deficient for being unable to initially exclude the
confession, it was incumbent on him to explain via argument and authority why the utterance was actually
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Nor has he satisfied the element requiring that he establish prejudice, i.e. that the
outcome would have differed but for the alleged misconduct. Indeed, appellant did not
even attempt to brief that issue other than by simply saying “the damage had been done.”
This alone merits rejection of his claim. TEX . R. APP . P. 38.1(h) (stating that a brief must
contain a clear and concise argument supporting the contentions made with appropriate
citation to authority and the record); Lockett v. State, 16 S.W.3d 504, 505 n.2 (Tex.
App.–Houston [1st Dist.] 2000, pet. ref’d) (holding that a conclusory statement supported
by neither argument nor authority presents nothing for review).
Yet, even assuming arguendo that appellant had not waived the issue of prejudice
due to inadequate briefing, nothing of record illustrates that the trial court considered
anything contained in the confession while sentencing him. The applicable range of
punishment was from two to 20 years. TEX . PEN . CODE ANN . §12.33(a) (Vernon 2003).
The trial court indicated that it assessed a term of eight years because of the “no less than
at least ten other offenses” listed in the pre-sentence investigation report, not because of
anything mentioned in the confession.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Justice
subject to exclusion and, again, this he did not do. TEX. R. APP. P. 38.1(h) (stating that a brief must contain
a clear and concise argument supporting the contentions made with appropriate citation to authority and the
record); Lockett v. State, 16 S.W.3d 504, 505 n.2 (Tex. App.–Houston [1st Dist.] 2000, pet. ref’d) (holding that
a conclusory statement supported by neither argument nor authority presents nothing for review).
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Do not publish.
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