Paul Daniel Campbell v. State ( 2015 )

ACCEPTED
03-14-00695-CR
7177394
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/30/2015 10:38:34 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00695-CR
__________________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE THIRD AUSTIN, TEXAS
DISTRICT OF TEXAS 9/30/2015 10:38:34 PM
__________________________________________________________
JEFFREY D. KYLE
Clerk
PAUL DANIEL CAMPBELL, Appellant
v.
THE STATE OF TEXAS, Appellee
__________________________________________________________
On Appeal from the 274th Judicial District Court of Comal County, Texas
Cause No. CR2013-512
Honorable Gary L. Steel, District Judge Presiding
__________________________________________________________
BRIEF FOR THE STATE
__________________________________________________________
Jennifer Tharp
Criminal District Attorney
By
Joshua D. Presley
SBN: 24088254
Assistant District Attorney
150 N. Seguin Avenue, Suite #307
(830) 221-1300
Fax (830) 608-2008
New Braunfels, Texas 78130
E-mail: preslj@co.comal.tx.us
Attorney for the State
Oral Argument Is Requested
i
Identity of Parties and Counsel
Attorneys for the Appellant Paul Daniel Campbell
AT TRIAL
Paul Finley
Reagan Burrus PLLC
401 Main Plaza, Suite 200
New Braunfels, TX 78130
Tel: (830) 625-8026
ON APPEAL
Amanda Erwin
The Erwin Law Firm, L.L.P.
109 East Hopkins Street, Suite 200
San Marcos, TX 78666
Tel: (512) 938-1800
Attorneys for the Appellee, The State of Texas
AT TRIAL
Chari L. Kelly & Daniel Palmitier
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: kellyc@co.comal.tx.us
palmid@co.comal.tx.us
ON APPEAL
Joshua D. Presley - SBN# 24088254
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: preslj@co.comal.tx.us
ii
Table of Contents
Index of Authorities ................................................................................................... v
Issues Presented ......................................................................................................... 1
Statement of Facts ...................................................................................................... 2
Ineffective Assistance of Counsel Standard of Review on Appeal .................. 10
Appellant’s Trial Counsel Was Not Ineffective for Not Objecting to Voir
Dire Questions .............................................................................................. 14
Summary of the Argument ........................................................................... 14
A. The Interrogatories by the State Were Not Improper Commitment
Questions ............................................................................................. 14
B. Even if the Questions Would Have Otherwise Been Improper, Trial
Counsel Had a Legitimate Strategic Reason Not to Object to the
Questions ............................................................................................. 19
C. Appellant Has Not and Cannot Show There Is a Reasonable
Likelihood the Result of the Proceeding Would Have Been Different
if Not for Trial Counsel’s Alleged Deficiency.................................... 24
Trial Counsel Was Not Ineffective for Not Objecting to the State’s
Closing Argument ........................................................................................ 27
Summary of the Argument ........................................................................... 27
A. The State’s Closing Argument Was Not Improper. ....................... 27
B. Because of His Own Remarks and the Egregious Facts of His Case,
Appellant Cannot Establish Prejudice in Any Event .......................... 30
Trial Counsel Was Not Ineffective for Allegedly Not Testing Appellant’s
Blood ............................................................................................................. 31
Summary of the Argument ........................................................................... 31
iii
Argument ....................................................................................................... 32
Prayer ....................................................................................................................... 34
Certificate of Service ............................................................................................... 35
Certificate of Compliance ........................................................................................ 35
iv
Index of Authorities
Statutes, Rules & Secondary Sources
Tex. Crim. Proc. Code Ann. art. 35.16
(a)(9)(West, Westlaw through 2015 R.S.) ............................................................... 17
Tex. Crim. Proc. Code Ann. art. 35.16
(b)(3)(West, Westlaw through 2015 R.S.) ............................................................... 17
Cases
Abron v. State, 523 S.W.2d 405 (Tex.
Crim. App. 1975) ..................................................................................................... 18
Alvarez v. State, 13-13-00207-CR, 2014
WL 585837 (Tex. App.—Corpus Christi
Feb. 13, 2014) (not designated for
publication), petition for discretionary
review refused (Aug. 20, 2014)................................................................................ 18
Barajas v. State, 93 S.W.3d 36 (Tex.
Crim. App. 2002) ..................................................................................................... 17
Cannon v. State, 668 S.W.2d 401 (Tex.
Crim. App. 1984) ..................................................................................................... 12
Cardenas v. State, 325 S.W.3d 179 (Tex.
Crim. App. 2010) ..................................................................................................... 17
Davis v. State, 349 S.W.3d 517 (Tex.
Crim. App. 2011) ...................................................................................14, 15, 16, 20
Delrio v. State, 840 S.W.2d 443, 447
(Tex. Crim. App. 1992)................................................................................20, 24, 30
Ex parte Martinez, 195 S.W.3d 713 (Tex.
Crim. App. 2006) ..................................................................................................... 32
v
Ex parte Torres, 943 S.W.2d 469 (Tex.
Crim. App. 1997) ..................................................................................................... 13
Flowers v. State, 133 S.W.3d 853 (Tex.
App.—Beaumont 2004, no pet.) .............................................................................. 29
Gamble v. State, 916 S.W.2d 92 (Tex.
App.—Houston [1st Dist.] 1996, no pet.) ..........................................................13, 23
Garcia v. State, 57 S.W.3d 436 (Tex.
Crim. App. 2001) ..................................................................................................... 11
Goodspeed v. State, 187 S.W.3d 390
(Tex. Crim. App. 2005)......................................................................................13, 22
Harris v. State, 784 S.W.2d 5 (Tex.
Crim. App. 1989) ..................................................................................................... 29
Hernandez v. State, 508 S.W.2d 853
(Tex. Crim. App. 1974)............................................................................................ 18
Hernandez v. State, 563 S.W.2d 947
(Tex. Crim. App. 1978)............................................................................................ 18
Hollis v. State, 219 S.W.3d 446 (Tex.
App.—Austin 2007, no pet.) .................................................................................... 12
In re R.J.R., 281 S.W.3d 43 (Tex. App.
—El Paso 2005, no pet.) .......................................................................................... 30
Jackson v. State, 877 S.W.2d 768 (Tex.
Crim. App. 1994) ..................................................................................................... 12
Lopez v. State, 343 S.W.3d 137 (Tex.
Crim. App. 2011) ...............................................................................................10, 11
Mallett v. State, 65 S.W.3d 59 (Tex.
Crim. App. 2001) ..................................................................................................... 12
vi
Mata v. State, 226 S.W.3d 425 (Tex.
Crim. App. 2007) ...............................................................................................11, 13
Mayhue v. State, 969 S.W.2d 503 (Tex.
App.—Austin 1998, no pet.) .................................................................................... 12
Menefield v. State, 363 S.W.3d 591
(Tex. Crim. App. 2012)............................................................................................ 10
Patrick v. State, 906 S.W.2d 481 (Tex.
Crim. App. 1995) ..................................................................................................... 11
Perez v. State, 310 S.W.3d 890 (Tex.
Crim. App. 2010) ..................................................................................................... 11
Prystash v. State, 3 S.W.3d 522 (Tex.
Crim. App. 1999) .................................................................................................... 30
Robinson v. State, 03-14-00407-CR,
2015 WL 4515128 (Tex. App.—
Austin July 22, 2015) (not designated
for publication), petition for
discretionary review filed (Aug. 27,
2015) ..................................................................................................................32, 33
Rylander v. State, 101 S.W.3d 107 (Tex.
Crim. App. 2003) ..................................................................................................... 13
Sanchez v. State, 165 S.W.3d 707 (Tex.
Crim. App. 2005) ...............................................................................................18, 25
Sanchez v. State, 04-02-00624-CR, 2006
WL 1623311 (Tex. App.—San Antonio
June 14, 2006, pet. ref’d) (not designated
for publication) ......................................................................................................... 25
Sells v. State, 121 S.W.3d 748 (Tex.
Crim. App. 2003) ..................................................................................................... 16
vii
Strickland v. Washington, 466 U.S. 668
(1984) ...............................................................................................10, 11, 22, 23, 24
Thompson v. State, 9 S.W.3d 808 (Tex.
Crim. App. 1999) ...............................................................................................11, 23
Tong v. State, 25 S.W.3d 707 (Tex.
Crim. App. 2000) ..................................................................................................... 12
Vrba v. State, 151 S.W.3d 676 (Tex.
App.—Waco 2004, pet. ref’d) ................................................................................. 16
viii
Issues Presented
1. Is defense counsel ineffective for not objecting to the State’s questions on voir
dire when said questions merely uncover jurors’ preexisting views and the
Appellant planned to elicit the same information for the effective exercise of his
peremptory strikes?
2. Is defense counsel ineffective for not objecting to the State’s correct statement
of the law that the jury may not consider how parole might be applied to the
Defendant after the Defendant has already asked the jury to consider how a
deadly weapon finding will preclude parole in his case – before at least half his
time is served – in an attempt to procure a shorter sentence?
3. Can defense counsel be found ineffective on appeal based on an Appellant’s
allegation that he did not further test Appellant’s blood for THC – which the
Appellant speculates would have been absent – when trial counsel’s
motivations are not in the record and Appellant admitted at trial to intoxicated,
outrageously reckless driving which caused the gruesome death of a vibrant
wife and mother?
1
Statement of Facts
On April 1, 2013, 54-year-old Alta Inez “Sissy” Payne was driving her Ford
Explorer home from her job at “Goin’ Postal” (III R.R. at 101; VI R.R. at 64). Both
of Sissy’s daughters had obtained degrees – Leslie from Howard Payne, and more
recently, her daughter Amy from Texas A&M – and Sissy had taken the job to help
pay school bills and save for other plans she had with her husband (III R.R. at 100;
VI R.R. at 58 (State’s Ex. 68), 56 (State’s Ex. 67), 81 (State’s Ex. 77)). Sissy had
been a stay-at-home mom for much of her life, and she was excited to have a new
job at the mail-related service (III R.R. at 87, 92). Sissy’s family had noticed the
recent change her new occupation had brought about; she appeared to be vibrant,
more like her old self (id. at 86-87).
Sissy – a nickname given to her as an infant by her then two-year-old
brother – had been her mother’s first daughter (id. at 91). Her mother, Mary
Ragland, described her as a sweet baby and a good child (id.). Sissy had problems
with Crohn’s disease when she was in her teens (id.). She almost died on more than
one occasion (id.). Eventually she had to have her intestines removed (id. at 92).
Around that time Sissy met Lonnie Payne, her brother’s roommate (id. at
92). When Sissy was very sick, Lonnie would come over from Houston on the
weekends; he would “sit by her bed … and just loved her to death” (id.). After
seeing how Lonnie was with Sissy through her illness, Sissy’s family was thrilled
2
when Lonnie and Sissy decided to get married (id.). Lonnie and Sissy would later
have two daughters, and the four of them were happy and inseparable (id.).
Sissy was also close to her extended family (id. at 94-95; VI R.R. at 74
(State’s Ex. 74)). She bring would bring the family together by planning activities,
camping and spending weekends on the lake (III R.R. at 82). Sissy crafted an
origami “flower” arrangement out of money for a cousin’s wedding, helped a close
friend set up her dress-design shop, and made costumes for Halloween (id. at 95-
96; VI R.R. at 79 (State’s Ex. 76).
When Sissy’s mother developed lung cancer, Sissy stayed by her side and
helped her through it (III R.R. at 97). Sissy’s mother said that it was around this
time that Sissy became the matriarch of the family – or “Monarch,” as Sissy’s
daughter would refer to her (id.). Sissy was the “glue” that kept things together, the
mediator of the family, and she raised her daughters to be helpful and considerate
(id. at 99, 87, 100).
Sissy’s 24-year-old daughter Amy said her mother was selfless, like a best
friend (id. at 84). Amy would call Sissy every day after work and talk with her for
anywhere from 20 minutes to two hours (id. at 85-86). Amy was with her mother
during Easter, March 31, 2013 (id. at 86). Amy stayed late that night because she
was having a good weekend with her family (id. at 87). Sissy worried about her
daughter driving home late at night (id.). She told her daughter to “[s]tay far away
3
from the other guy” while driving home (id.). The next day on April 1st, while
Sissy was going home from her new job, Paul Campbell – Appellant – was driving
in the opposite direction (id. at 26-27).
Appellant – an out-of-work bull rider – was driving a gray Ford Ranger
pickup truck (IV R.R. at 24, 32-33; III R.R. at 26). He had been placed on
probation on August 12, 2011 for possession of marijuana and resisting arrest (III
R.R. at 77). However, after he subsequently picked up another possession of
marijuana charge in Kendall County, his probation had been revoked and he served
30 days in jail for both cases (id. at 78). On April 1, 2013, after having at least two
20-ounce glasses of wine “on an empty stomach,” Appellant also had a full wine
bottle and a marijuana pipe with him in the Ranger as he drove down FM 306 (IV
R.R. at 63, 65).
Justin Nauert, a firefighter, was doing an exterior survey of a building
alongside FM 306 that day (III R.R. at 25-26). While he was working, he observed
Appellant’s gray Ford Ranger leave the roadway – hitting the gravel parking lot
Nauert was working in – to pass by on the right side of an Econoline van (id. at
26). Appellant regained control and returned to the roadway after passing the van
(id.). Although that stretch of road had a posted speed limit of 55 miles per hour,
Nauert estimated Appellant was speeding by at 70 to 75 (id. at 26). Nauert turned
4
to his fellow crew members and remarked that Appellant could have an accident
driving like that (id. at 27).
Charles Hutson was driving his F-350 truck on FM 306 further on ahead of
Appellant (id. at 34). It was almost 4:00 p.m., and Hutson was headed to his
children’s middle school to pick them up (id.). At that point in FM 306, the road
only had one lane in either direction, and there was no passing lane (id. at 35).
Hutson crossed a bridge and was negotiating a curved portion of the road in a no-
passing zone (id. at 35-36, 50). The first time Hutson noticed anything amiss was
when he heard a noise and saw “just a blur” as Appellant’s Ranger sped by him on
the right (id. at 35-36). Hutson did not know how Appellant had managed to pass
him on the right-hand side, since there was no room on the shoulder to pass there
(id. at 36). While the speed limit on that part of FM 306 was 45, Hutson estimated
Appellant was travelling at 80 miles an hour (id. at 36-37).
Appellant then cut back in front of Hutson (id. at 37). Appellant was so close
that Hutson thought he had clipped Hutson’s front brush guard (id.). Appellant’s
Ranger pickup turned slightly sideways “like he had lost control” and shot straight
across the lane into oncoming traffic (id.). Hutson saw kids in a van which
Appellant narrowly missed (id.). Appellant’s Ranger pickup then slammed into
Sissy Payne’s Ford Explorer just behind her driver’s side front tire (id. at 37, 26).
Hutson “was right there beside him and it just exploded” (id. at 37).
5
Oil covered Hutson’s windshield and “[e]verything went black” (id.).
Appellant’s Ranger collided with another vehicle, a Toyota Tundra pickup (id. at
30). The Tundra contained a man with his pregnant 24-year-old wife and three-
year-old child (id. at 30, 52). The impact of Appellant’s subsequent collision with
the Tundra forced the three-year-old’s knee into his own eye, leaving the child
with an eye injury (id. at 52; V R.R. at 34 (State’s Ex. 16)). Appellant’s Ranger
split into three large pieces (III R.R. at 28). Appellant’s cab landed in a tree around
75 to 100 feet away from his chassis, while the engine block was 25 to 50 feet
away (id. at 27-28; V R.R. at 6 (State’s Ex. 2), 10 (State’s Ex. 4), 24 (State’s Ex.
5)). A school bus was only three vehicles behind Sissy’s Ford Explorer (III R.R. at
39).
There was fire from burning oil on Hutson’s hood (id. at 37). Hutson
managed to pull over and got out of his truck to see if he could help (id.).
Appellant’s Ranger had gone “through” Sissy’s Explorer, and there was “just
nothing left of it” (id. at 38; V R.R. at 26 (State’s Ex. 12)). Nauert, the firefighter
who had observed Appellant’s dangerous driving only minutes earlier, responded
to the report of a head-on collision involving multiple vehicles (III R.R. at 27).
Debris was strewn around the crash site; some of it had apparently damaged an
adjacent hurricane fence (VI R.R. at 42 (State’s Ex. 60)). Nauert saw the three
6
heavily damaged vehicles and went to check on the woman in the Explorer (III
R.R. at 27-28).
Nauert found Sissy “pinned inside of the vehicle and mangled” (id. at 28; V
R.R. at 46 (State’s Ex. 22), 52 (State’s Ex. 25)). She had blunt force trauma “from
the head to the toes” (III R.R. at 71). Her brainstem had been almost completely
transected (id.). Sissy’s chest had been crushed on both sides – injuring her lungs –
and she had bled into each chest cavity (id. at 72). She had numerous fractures and
her heart had ruptured open (id.). Nauert found no pulse, and she was pronounced
dead on the scene (id. at 28). Trooper Jason Nolen had extensive experience with
crash investigations (id. at 40). He was “astonished” to see the Ranger split in three
pieces, and was also surprised the numerous safety devices – including a seat belt
and front and side-curtain airbags – were not enough to save Sissy, observing that
“nothing could save her with the impact that was … forced upon her” (id. at 44).
Nauert went to check on Appellant (id. at 29). Appellant and his cab smelled
“pretty heavily” of alcohol (id.). Officers found the wine bottle and the glass
marijuana pipe near Appellant’s car (id. at 57). Blood test results indicated
Appellant had a blood-alcohol concentration of .132, over the legal limit (id. at 61).
Trooper Nolen was tasked with notifying Lonnie Payne about Sissy’s death (id. at
64).
7
Sissy’s husband of 30 years had gotten off of work early that day (id. at
101). He called and left a message with his wife to surprise her with the news that
he would be home early (id.). When he reached home she had not arrived (id.). He
turned on the news and changed his clothes (id.). When he heard a report of a
fatality accident, he looked and saw their Ford Explorer on the television (id.). His
neighbor came over and they began calling hospitals trying to find Sissy (id.).
Nolen arrived at Lonnie’s house, noting that “the look on his face was the worst
part. To tell a man that’s been married to a woman for – I think he said 30 years –
that his wife had just passed was the worst part” (id. at 65).
Sissy’s brother had passed away three months earlier (id. at 97). Sissy’s
mother testified that when she received the call, she recalled saying “[i]t can’t be
Sissy. It can’t be Sissy because we just lost Joe. But it was Sissy” (id. at 97-98).
Sissy’s daughter Amy testified that “one of the first thoughts as soon as I heard it
happened was that she’s not going to be there to meet her grandkids and to see me
get married” (id. at 86). Amy pointed out her fiancé during her testimony on
October 14, 2014; at the time of the trial, Amy had been engaged for a month (id.
at 85). Sissy’s family members said that a part of their lives would always be
missing (id. at 86, 97, 99).
Lonnie testified that since his wife’s death “it’s hard to go home …. People
don’t like coming to our house much. I’ve kind of had to take away some of the
8
memorable things. It’s hard to drive down that road. It’s – it’s a lot different. It is
something that, you know, you don’t expect when it happens. And it’s just your
life is empty kind of” (id. at 102). Lonnie said he would wrestle with forgiving
Appellant for the rest of his life. Lonnie added that “I don’t believe that our court is
for forgiveness. I believe our court is for justice. I don’t believe [Appellant]
learned that lesson yet from his previous arrests. [Appellant has] the rest of his life
to have his family, see his kids be married, and see grandkids. We won’t have
Sissy for that. That’s how I feel about it” (id. at 103).
Appellant took the stand for the punishment hearing, having pled “guilty” to
the offense and “true” to the deadly weapon issue (id. at 19). Appellant said that he
had head injuries since kindergarten and that he was worried about his future after
reading NFL studies on concussions (IV R.R. at 28-31). Several defense witnesses
testified that Appellant was a “changed” man since the wreck that killed Sissy (id.
at 9, 17-18). However, Appellant admitted that he drank and smoked marijuana
even after the wreck – despite the terms of his release on bond:
State: So even after taking someone’s life, being released from jail,
being told you’re not to smoke marijuana or drink alcohol, you
continued to do it?
Appellant: Yes, sir.
(id. at 49). On the stand, Appellant would not acknowledge that smoking marijuana
was a problem (id. at 50).
9
The range of punishment was from two to 20 years in prison and up to a
$10,000 fine (id. at 74). The jury was also asked to determine whether it believed
Appellant should be placed on probation, if it believed he was eligible (id. at 74-
75). The jury returned a verdict of 17 years in the Texas Department of Criminal
Justice and a fine of $5,000, which the trial court immediately imposed (id. at 101).
Ineffective Assistance of Counsel Standard of Review on Appeal
The Sixth Amendment right to effective assistance of counsel does not
provide a right to errorless counsel; it is a right to objectively reasonable
representation. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011); citing
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Strickland v. Washington,
466 U.S. 668, 686 (1984). To prevail on a claim of ineffective assistance of
counsel, an appellant must satisfy both prongs of Strickland, demonstrating both
deficient performance by counsel as well as prejudice suffered by the defendant
because of counsel’s alleged deficient performance. 466 U.S. at 687; Menefield v.
State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012).
Under the first prong, the Applicant must demonstrate that counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms. Strickland, 466 U.S. at 687–88. To satisfy the second prong of
Strickland, the Applicant has to show the existence of a reasonable probability –
10
one sufficient to undermine confidence in the outcome – that but for counsel’s
deficient performance, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694. Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the ineffectiveness claim.
Strickland, 466 U.S. at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.
App. 2010).
“It is not sufficient that the appellant show, with the benefit of hindsight, that
his counsel’s actions or omissions during trial were merely of questionable
competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). In
making its assessment of counsel’s assistance, the reviewing court examines the
totality of the representation and the circumstances of each case without the benefit
of hindsight. Lopez, 343 S.W.3d at 142-43; Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999); Garcia v. State, 57 S.W.3d 436, 430 (Tex. Crim. App.
2001). The reviewing court must presume that counsel is better positioned to judge
the pragmatism of the particular case, and that he “made all significant decisions in
the exercise of reasonable professional judgment.” Delrio v. State, 840 S.W.2d
443, 447 (Tex. Crim. App. 1992) (citing Strickland v. Washington, 466 U.S. at
690).
Reviewing courts will indulge in a strong presumption that trial counsel’s
performance was reasonable. Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim.
11
Ohio App. 1995). The “[a]ppellant has the burden of proving ineffective assistance by a
preponderance of the evidence.” Id. (citing Cannon v. State, 668 S.W.2d 401 (Tex.
Crim. App. 1984)). The Court has also noted that “the presumption that trial
counsel’s performance was reasonably based in sound trial strategy, coupled with
the absence of any supporting evidence in the record of unreasonableness, compels
a reviewing court to consider ways in which trial counsel’s actions were within the
bounds of professional norms.” Mata v. State, 226 S.W.3d at 431.
To prevail on a claim of ineffective assistance of counsel, an appellant must
provide a record that affirmatively demonstrates that defense counsel’s
performance was not based on sound strategy. Mallett v. State, 65 S.W.3d 59, 63
(Tex. Crim. App. 2001); Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.—Austin
2007, no pet.); Mayhue v. State, 969 S.W.2d 503, 511 (Tex. App.—Austin 1998,
no pet.). If the appellate record is silent regarding the reasons for defense counsel’s
conduct, then it is insufficient to overcome the strong presumption that counsel
was following a legitimate strategy. Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim.
App. 2000); Thompson v. State, 9 S.W.3d at 813–14; Jackson v. State, 877 S.W.2d
768, 771 (Tex. Crim. App. 1994) (refusing to hold counsel’s performance deficient
given the absence of evidence concerning counsel’s reasons for choosing the
course he did); Hollis v. State, 219 S.W.3d at 456
12
As the Court stated in Ex parte Torres, “[i]n most instances, the record on
direct appeal is inadequate to develop an ineffective assistance claim.” 943 S.W.2d
469, 475 (Tex. Crim. App. 1997) (internal citations omitted). Courts will not
speculate to find trial counsel’s strategies ineffective. Gamble v. State, 916 S.W.2d
92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). The Court has noted that
“trial counsel should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective. Absent such an opportunity, an appellate
court should not find deficient performance unless the challenged conduct was ‘so
outrageous that no competent attorney would have engaged in it.’” Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Rylander v. State,
101 S.W.3d 107, 111 (Tex. Crim. App. 2003)).
Accordingly, the Court has repeatedly held that post-conviction writs of
habeas corpus are the more appropriate or preferable means of raising a claim of
ineffective assistance of counsel. See, e.g., Rylander, 101 S.W.3d at 110-11;
Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Mata, 226 S.W.3d
at 430 (“[t]he lack of a clear record usually will prevent the appellant from meeting
the first part of the Strickland test, as the reasonableness of counsel’s choices and
motivations during trial can be proven deficient only through facts that do not
normally appear in the appellate record”).
13
Appellant’s Trial Counsel Was Not Ineffective for Not Objecting to
Voir Dire Questions
Summary of the Argument
Although Appellant claims his counsel was ineffective for failing to object
to what he categorizes as impermissible commitment questions, the State’s
questions were not improper. Additionally, even if the State’s questions had been
improper, Appellant’s trial counsel explicitly stated at the outset of his voir dire
that he wanted to know the information elicited by the State; the fact that each of
the venire members who Appellant struck gave answers which appeared to be
unfavorable to him during the State’s voir dire demonstrates a reasonable strategic
justification for not objecting. Finally, even if Appellant could show his counsel’s
performance had been deficient, given the egregious facts of his case, he cannot
show a reasonable probability the result of the proceeding would have been
different absent the allegedly objectionable questions by the State during voir dire.
A. The Interrogatories by the State Were Not Improper Commitment
Questions.
Appellant first complains of the State’s question related to the goal of
sentencing. Brief for Appellant at 14. However, the parties in a criminal case are
given broad latitude to ask general background and philosophy questions of the
venire members. Davis v. State, 349 S.W.3d 517, 518 (Tex. Crim. App. 2011). As
14
the Court in Davis observed, such questions might include inquiries “into a
prospective juror’s general philosophical outlook on the justice system (such as
whether the retribution, deterrence, or rehabilitation is the prime goal of the
criminal justice system).” Id.
In Davis, the Court found that the Court of Appeals had erred in upholding
the trial court’s decision to prevent defense counsel from asking the question
“[l]et’s talk about factors in [assessing] the sentence in a case of aggravated
robbery with a deadly weapon, what factors do y’all think are important?” Id. at
518, 519. The Court in Davis reversed the Court of Appeals’ decision that defense
counsel’s question was an improper commitment question. Id. at 519. Rather, the
question “sought to discover which factors would be important to jurors’ decisions,
without inquiring how those factors would influence the decision.” Id.
In the instant case, the State asked whether the “main purpose of sentencing”
was rehabilitation, restitution, deterrence, or punishment (II R.R. at 75-76).
Although Appellant tries to cite Standefer for his contention that the State’s
interrogatory was an improper commitment question (Brief for Appellant at 13-
14), Davis distinguished questions such as this from Standefer. See Davis, 249
S.W.3d at 519. Just as in Davis, the State’s question in Appellant’s case did not ask
jurors how particular facts would influence their decisions. See id. It merely sought
to discover what factors would be important to their decision. See id. Because the
15
State only inquired into the “prospective juror’s general philosophical outlook on
the justice system (such as whether the retribution, deterrence, or rehabilitation is
the prime goal of the criminal justice system),” it did not ask an impermissible
commitment question. Additionally, just as in Davis, in Appellant’s case the
jurors’ sentencing decision is not a binary “yes or no” response; instead, the range
included probation or a wide range of confinement. See id. Where jurors can
choose among a broad range of options, such questions are less likely to require a
commitment. Id.
A venire member’s philosophical perspective on the goal of sentencing is a
proper subject for voir dire. Id. at 518. A trial court abuses its discretion if it does
not allow a proper voir dire question. Id. Because the State’s inquiry was proper
under Davis, Appellant’s trial counsel was not ineffective for not objecting to it.
See id. at 519; see also Vrba v. State, 151 S.W.3d 676, 679 (Tex. App.—Waco
2004, pet. ref’d).
Appellant next complains that the State’s inquiry regarding venire members’
general views of lengthy prison sentences for first-time alcohol-related offenses
was an improper commitment question. See Brief for Appellant at 14. However,
“[a] question is proper if it seeks to discover a juror’s views on an issue applicable
to the case. Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App. 2003).
Additionally, as the Court of Appeals observed in Vrba,
16
litigants are given “broader latitude” to “inquire into a prospective
juror’s personal background for the purpose of determining whether
that background will adversely affect the juror’s ability to decide the
case in an impartial manner” and to inquire “into a prospective juror's
general philosophical outlook on the justice system.”
151 S.W.3d at 678. Furthermore, both the State and the defendant are “entitled to
jurors who can consider the entire range of punishment for the particular statutory
offense – i.e., from the maximum to the minimum and all points in between.”
Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010); see also Tex.
Crim. Proc. Code Ann. art. 35.16 (a)(9) (bias or prejudice in favor of or against the
defendant), (b)(3) (the State may challenge a juror for cause if he has “a bias or
prejudice against any phase of the law upon which the State is entitled to rely for
… punishment”) (West, Westlaw through 2015 R.S.).
The State’s precise question sought to determine whether jurors would be
“comfortable,” i.e. could consider the full range of punishment “[i]f the facts of the
case support[ed]” a lengthy sentence (see II R.R. at 81). It did not ask a question
which had no relevance to the jurors’ qualifications. See Barajas v. State, 93
S.W.3d 36, 40-41, 42 (Tex. Crim. App. 2002) (Womack, J., concurring)
(contrasting the overruled Nunfio case – which involved facts related to the victim
– with Abron and Hernandez I). If jurors had a bias in favor of or against the
defendant on account of his age – or against the law, which allowed for a lengthy
sentence – the State’s question could lead to a valid challenge for cause against
17
that venireman, and would likewise aid in the intelligent use of peremptory strikes.
See Abron v. State, 523 S.W.2d 405, 409 (Tex. Crim. App. 1975) (holding a
defendant should have been allowed to ask whether the race of the defendant and
victim would affect prospective jurors’ determination to aid the defendant’s
intelligent use of his peremptory strikes).1
Moreover, the State’s question sought to elicit the venire’s preexisting
prejudices, not to instill new ones in the prospective jurors. See Sanchez v. State,
165 S.W.3d 707, 712 (Tex. Crim. App. 2005) (“An improper commitment question
attempts to create a bias or prejudice in the venireman before he has heard the
evidence, whereas a proper voir dire question attempts to discover a venireman’s
preexisting bias or prejudice”). The wide variety of responses to the State’s
questions further demonstrate that they did not compel a given answer, but merely
uncovered the venire members’ preexisting views (see generally II R.R. at 76-94).
Because it was not improper to use a scaled question to learn prospective jurors’
general views on lengthy prison sentences – an issue applicable to the punishment
1
See also Hernandez v. State, 508 S.W.2d 853, 854 (Tex. Crim. App. 1974) (“The question in
the instant case, however, merely inquires of a prospective juror, in general terms, whether he
could conceive of the possibility that a police officer-witness might lie from the stand”);
Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978) (juror’s attitude towards police
officers led to inference of bias against appellant, and challenge for cause should have been
granted); Alvarez v. State, 13-13-00207-CR, 2014 WL 585837, at *8 (Tex. App.—Corpus Christi
Feb. 13, 2014) (not designated for publication), petition for discretionary review refused (Aug.
20, 2014) (even commitment questions may be proper if they are calculated to uncover grounds
for a challenge for cause).
18
phase of trial – without binding them to resolve the issue in a certain way,
Appellant’s second complaint is likewise without merit. See Davis, 349 S.W.3d at
519.
Appellant’s third and fourth alleged “impermissible commitment” questions
involve general factors the jury might consider when determining punishment.
Brief for Appellant at 15-16. However, these questions, as in Davis, “sought to
discover which factors would be important to jurors’ decisions, without inquiring
how those factors would influence the decision.” 349 S.W.3d at 519; see also
McCallister v. State, 05-10-01259-CR, 2012 WL 286801, at *1 (Tex. App.—
Dallas Feb. 1, 2012, pet. ref’d) (not designated for publication). For the reasons
cited supra (at 15, 17-18), Appellant’s third and fourth complaint should likewise
be dismissed.
B. Even if the Questions Would Have Otherwise Been Improper, Trial
Counsel Had a Legitimate Strategic Reason Not to Object to the
Questions.
Appellant was aware of the strong evidence that would be presented against
him at the sentencing phase – including the testimony of eyewitnesses and relatives
of the sympathetic victim – as well as the evidence he and his trial counsel hoped
would garner sympathy and mitigate his punishment. He therefore had a high
interest in knowing prospective jurors’ responses to the State’s alleged
“commitment” questions.
19
Appellant had a strong interest in knowing the venire members’ perspectives
on the goals of sentencing – whether they would focus on rehabilitation,
retribution, deterrence or punishment. Notably, it was the defense counsel in Davis
which attempted to inquire into the prospective jurors’ philosophy on punishment.
349 S.W.3d at 517. In fact, when Appellant’s trial counsel began his voir dire, he
explicitly acknowledged that he wanted to know the same information when he
stated that “[a] lot of the questions and a lot of the same information that I would
want to ask you about, [the State] has covered a lot of that so I won’t plow a lot of
ground over again” (II R.R. at 106).
Appellant’s need and desire to know the venire members’ responses to the
State’s questions are also apparent when examining Appellant’s use of his
peremptory strikes. Appellant used five of his ten peremptory strikes on the
following venire members: Gass, Martinez, Wallace, Lopez and Lamoureux (I
Supp. C.R.). All five of Appellant’s peremptory strike subjects gave responses to
the State’s questions which were potentially unfavorable to Appellant.2
Gass believed the goal of sentencing was “restitution” to “[h]elp the victim
recover” (II R.R. at 76, 77). Given the sympathetic victim and the devastating loss
2
Appellant asserts he was harmed by the question regarding the “goal” of sentencing, though he
acknowledges only one prospective juror answered this question favorably for him. Brief for
Appellant at 17. Notably, the venire member Appellant refers to – Ms. Thompson – was well
outside the strike zone and would not have made the jury in any event. See II R.R. at 79; I Supp.
C.R. (Thompson was at least seven spots past the strike zone).
20
suffered by her family, Appellant had good reason to want her off of his jury. Gass
also believed the most important factor in assessing punishment was the
seriousness of the crime (id. at 85, 86). Ms. Gass did not believe that a remorseful
defendant should be punished less severely (id. at 90, 92).
Martinez saw the goal of sentencing as “deterrence” (id. at 76, 77) – and
Appellant’s 80-mile-an-hour intoxicated “driving like a maniac” (IV R.R. at 63)
around vans and school buses full of children before killing an innocent,
sympathetic victim was a textbook example of the type of conduct one would want
to strongly deter. Mr. Martinez was also one of the few to stress the “injury the
crime has caused” as the most important factor in assessing punishment (II R.R. at
85, 87). He apparently also did not think a remorseful defendant should be
punished less severely (see id. at 92).
Wallace saw sentencing’s primary purpose as “punishment” (II R.R. at 76,
77). He viewed the seriousness of the crime as the most important factor in
assessing punishment (id. at 85, 87). Wallace did not see remorse as a particularly
mitigating factor (id. at 92).
Lopez also believed sentencing’s primary purpose was punishment (II R.R.
at 76, 77). Lopez further stated that he was “very comfortable” in assessing lengthy
prison sentences in response to the State’s second question (id. at 81, 84). He
thought the seriousness of the crime was the most important factor in assessing
21
punishment (id. at 85, 89). Mr. Lopez “strongly disagreed” that a remorseful
defendant should be punished less severely (id. at 90-91, 94).
Lamoureux, like Wallace and Lopez, believed sentencing’s primary
objective was punishment (II R.R. at 76, 78). She also believed the seriousness of
the crime was the most important factor in assessing punishment (id. at 85, 89).
Like most other venire members, Lamoureux did not believe remorse should result
in less severe punishment – a viewpoint she shared with all the other members
Appellant used peremptory strikes on. (id. at 90, 94).
Appellant acknowledged that the State had covered a lot of the same ground
he planned to. Each of the peremptory strikes Appellant exercised involved jurors
who gave several potentially unfavorable answers to the State’s questions.
Accordingly, given Appellant’s strong interest in knowing the venire members’
philosophy on matters affecting punishment, it cannot be said that trial counsel’s
strategy to uncover the venire members’ views – just as defense counsel attempted
to do in Davis – fell below an objective standard of reasonableness under
prevailing professional norms. See Strickland, 466 U.S. at 687–88. Appellant’s
trial counsel’s conduct was not “so outrageous that no competent attorney would
have engaged in it.” See Goodspeed, 187 S.W.3d at 392. As the Supreme Court
observed in Strickland:
[j]udicial scrutiny of counsel’s performance must be highly
deferential; it is all too tempting for a defendant to second-guess
22
counsel’s assistance after conviction or adverse sentence, and it is all
too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel
was unreasonable. 466 U.S. at 689.
The acts or omissions complained of by Appellant constituted reasonable trial
strategy by counsel.
Appellant has failed to meet his burden to prove ineffective assistance by
overcoming the strong presumption that his trial counsel exercised reasonable
professional judgment.3 See Thompson, 9 S.W.3d 808, 813–14; see also Gamble v.
State, 916 S.W.2d at 93 (because the record was silent as to why the appellant’s
counsel conducted voir dire as he did, and because the appellant had failed to
obtain a motion for new trial hearing to develop the record, the court could not
conclude trial counsel’s performance was deficient). This Court should therefore
reject Appellant’s claim that his counsel’s representation was deficient under the
first prong of Strickland and affirm the judgment of the trial court. See Gamble,
916 S.W.2d at 93.
3
In evaluating the totality of the representation and the circumstances of the case without the
benefit of hindsight, it is also notable that Appellant’s trial counsel made timely and specific
objections to testimony (III R.R. at 63, 120, 126), filed numerous pretrial motions (I C.R. at 12-
30, 31 (request for 404(b) notice), 36-51, 56, 59, 61-66, 69 (sworn application for probation),
90), called multiple defense witnesses, many of whom testified to Appellant’s “remorse” (III
R.R. at 105, 128; IV R.R. at 6, 14), and timely filed Appellant’s notice of appeal (I C.R. at 124).
Finally, Appellant received less than the maximum sentence allowed by law, and only half the
possible fine. Particularly when evaluating the totality of his representation based on the limited
record before the Court, Appellant has not overcome the strong presumption that his counsel’s
performance was not deficient.
23
C. Appellant Has Not and Cannot Show There Is a Reasonable Likelihood
the Result of the Proceeding Would Have Been Different if Not for Trial
Counsel’s Alleged Deficiency.
Furthermore, following Appellant’s guilty plea and the substantial and
compelling punishment evidence in his case, even if the representation of counsel
had been deficient under the first prong of Strickland, such deficiency would not
be sufficient to undermine confidence in the outcome of the proceeding. In
Appellant’s case, it is notable that – despite his claim of prejudice on appeal –
Appellant did not even exercise his full complement of peremptory strikes at trial
(I Supp. C.R. (Appellant only used five of his ten peremptory strikes)). Since he
left half of his preemptory challenges unused, Appellant and his trial counsel were
apparently pleased with the composition of the jury prior to trial. Strickland’s
warning that it is “all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence” applies in the context of the
prejudice inquiry: Appellant and his trial counsel were in the best position to
observe the venire members’ demeanor and responses to voir dire, and neither felt
the need to exercise Appellant’s remaining peremptory strikes from that ideal
vantage point. See Delrio, 840 S.W.2d at 447 (courts presume that counsel is better
24
positioned to judge the pragmatism of the particular case, and that he “made all
significant decisions in the exercise of reasonable professional judgment”).4
Moreover, the facts of Appellant’s case are particularly egregious. As
detailed in the Statement of Facts, supra, the victim in this case was a vibrant and
relatively young wife and mother. She was clearly deeply loved and relied upon by
her entire family – several of whom broke down on the stand (see III R.R. at 87,
97, 98). Appellant was a thrill-seeking bull rider who had already violated his
4
A defendant’s failure to use his full complement of peremptory strikes is one of the factors
Sanchez listed for courts to consider in a harm analysis regarding preserved “errors” related to
improper commitment questions. 165 S.W.3d at 713. The list of factors includes:
(1) whether the questions were unambiguously improper and attempted to commit
one or more veniremen to a specific verdict or course of action;
(2) how many, if any, veniremen agreed to commit themselves to a specific
verdict or course of action if the State produced certain evidence;
(3) whether the veniremen who agreed to commit themselves actually served on
the jury;
(4) whether the defendant used peremptory challenges to eliminate any or all of
those veniremen who had committed themselves;
(5) whether the defendant exhausted all of his peremptory challenges upon those
veniremen and requested additional peremptory challenges to compensate for
their use on improperly committed veniremen;
(6) whether the defendant timely asserted that a named objectionable venireman
actually served on the jury because he had to waste strikes on the improperly
committed jurors; and
(7) whether there is reasonable likelihood that the jury’s verdict or course of
action in reaching a verdict or sentence was substantially affected by the State’s
improper commitment questioning during voir dire.
Sanchez v. State, 04-02-00624-CR, 2006 WL 1623311, at *4 (Tex. App.—San Antonio June 14,
2006, pet. ref’d) (not designated for publication). As in that latter case, the questions in
Appellant’s case were not unambiguously improper. In addition to the failure to exhaust his
peremptory strikes, veniremen did not “commit” themselves to a certain action, Appellant never
asserted an objectionable juror served (because he did not exhaust his peremptories in the first
place), and as detailed infra, there is not a reasonable likelihood the jury’s verdict was affected
by the State’s questioning, given the compelling punishment evidence in this case.
25
probation when he decided to drink and drive “like a maniac.” He was intoxicated
and had a bottle of wine and a marijuana pipe with him in the car. He hurtled
around and through traffic – which included vans with children and school buses –
at speeds of up to 80 miles an hour, losing control multiple times. He caused a
catastrophic wreck which led to Sissy’s senseless, gruesome death, not to mention
injuries to a pregnant woman and her three-year-old child. At trial, Sissy’s family
testified about the devastating “void” in their homes and lives (e.g. id. at 99, 102).
Sissy would never see her daughter Amy’s wedding or Sissy’s grandchildren.
Sissy’s mother had to bury a second child. Sissy’s devoted husband’s life was
empty; he had taken to hiding things that reminded him of his wife. Notably,
despite witnessing the same emotional testimony as the jury, when Appellant took
the stand to testify on his own behalf, he never apologized to the family he had
wrecked. Appellant tried to make excuses for his actions, including “concussions”
(IV R.R. at 28-31) and claimed he could not remember driving (id. at 35-37).
Appellant also acknowledged that – despite the conditions of his bond – he
continued to use alcohol and marijuana after killing Sissy.
In those circumstances, Appellant cannot plausibly contend that he was
prejudiced by his trial counsel’s alleged errors. Given the extreme facts of
Appellant’s case, even if Appellant’s “ultimate goal [was] to convince the jury to
grant [Appellant] probation” or a lesser sentence, such a goal was unrealistic and
26
unattainable – even absent the alleged ‘errors’ of Appellant’s trial counsel. See
Brief for Appellant at 17. Appellant has not and cannot show a reasonable
probability that the result of his proceeding would likely have been different had
his trial counsel objected to the State’s questions. His claim of ineffective
assistance of counsel is without merit and should be denied.
Trial Counsel Was Not Ineffective for Not Objecting to the State’s
Closing Argument
Summary of the Argument
Appellant claims his counsel’s performance was deficient for not objecting
to the State’s closing statements regarding parole eligibility. However, the State in
its comments reiterated the instruction in the charge that the jury was not to
consider how the parole laws would apply in Appellant’s case. Furthermore, it was
Appellant who first invited the jury to consider the impact of the deadly weapon
finding on his parole eligibility in an attempt to convince the jury to return a
shorter sentence. Finally, Appellant cannot show prejudice in any event, given the
circumstances of his case.
A. The State’s Closing Argument Was Not Improper.
In his second point of error related to the State’s alleged improper closing
argument, Appellant quotes the State’s explanation of general parole law: “[b]ut
27
what you know is 20 years doesn’t mean 20 years.” Brief for Appellant at 18.
Appellant’s brief omits the sentences immediately following that statement,
contained in the same paragraph: “A person that’s sentenced to 20 years is eligible
to get out at ten years or half that sentence. You can’t apply that to him, but y’all
can use that existence when determining a sentence – the existence of those parole
eligibility laws” (IV R.R. at 91). In context, the State was providing a legally
accurate description of the law – in fact, paraphrasing language in the jury charge
itself:
It is also possible that the length of time for which the Defendant will
be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the Defendant is sentenced to
a term of imprisonment, he will not be eligible for parole until the
actual time served equals one-half of the sentence imposed. Eligibility
for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good
conduct time might be applied to this Defendant….
You may consider the existence of the parole law and good conduct
time. However, you are not to consider the extent to which good
conduct time may be awarded to or forfeited by this particular
Defendant. You are not to consider the manner in which the parole
law may be applied to this particular defendant.
I C.R. at 79. Because the State did not ask the jury to consider the particular
manner in which the parole law would be applied to the defendant – and explicitly
repeated the charge’s warning that “[y]ou can’t apply that to him, but you can use
that existence when determining a sentence” – the State’s accurate statement of the
28
law did not constitute an improper argument, and Appellant’s counsel was not
deficient for failing to object. See Flowers v. State, 133 S.W.3d 853, 858 (Tex.
App.—Beaumont 2004, no pet.) (in the context of voir dire statements, “the
prosecutor was accurately stating the law, and … the failure of trial counsel to
object was not ineffective assistance of counsel”).
Additionally, Appellant was the first party to raise the applicable parole laws
in closing argument:
One thing I would like for you to consider though would be to know
[that] … if he’s convicted and sent to the penitentiary, that he has to
serve at least half of the time of the sentence before he’s even eligible
to be considered for parole …. And there’s no guarantee that even
after 50 percent of the time, whatever that is, that he would even be
given parole.
(IV R.R. at 83). Although Appellant claims the State argued for an improper
application of the parole law to his case in closing, the record actually
demonstrates that it was Appellant who wanted jurors to consider the application
of the parole laws to his case, while the State’s response reiterated the law in the
charge that the jury could not “apply that to him, but y’all can use that existence
when determining a sentence – the existence of those parole eligibility laws” (IV
R.R. at 91). See also Harris v. State, 784 S.W.2d 5, 12 (Tex. Crim. App. 1989)
(“Proper jury argument [includes] … answer to argument by opposing counsel”).
Appellant plainly wanted the jury to take the effect of his “deadly weapon”
finding into account in the hopes that – knowing he would have to serve at least
29
half his time – they would return a reduced sentence. See Delrio v. State, 840
S.W.2d at 446 (even where an “undoubtedly risky” strategy does not pay off, “it
does not mean the strategy was unacceptable”). In Appellant’s case, the jury
actually returned a sentence three years less than the maximum allowed.
Furthermore, because Appellant first introduced and emphasized how the
parole laws would apply in his case, he should be estopped from challenging the
issue on appeal under the doctrine of invited error. See Prystash v. State, 3 S.W.3d
522, 531 (Tex. Crim. App. 1999) (where the Court would not permit the appellant
to complain of an omission from the court’s charge that he requested, noting “the
law of invited error estops a party from making an appellate error of an action it
induced”); see also In re R.J.R., 281 S.W.3d 43, 47 (Tex. App.—El Paso 2005, no
pet.) (under the doctrine of curative admissibility, “a defendant may waive a prior
objection to evidence by offering the same evidence or evidence establishing the
same facts as trial”).
B. Because of His Own Remarks and the Egregious Facts of His Case,
Appellant Cannot Establish Prejudice in Any Event.
Ultimately, Appellant’s actions in stressing the applicability of parole laws
in his case preclude Appellant from establishing prejudice. Although he complains
of the State’s “improper application of the parole law” to Appellant, even if the
State had not mentioned the parole laws at all, Appellant himself had already
30
invited the jury to consider the same. Moreover, in light of the extremely
compelling punishment evidence in Appellant’s case, Appellant cannot
demonstrate a reasonable probability that the result of his proceeding would have
been different in any event.5 Accordingly, the Court should reject Appellant’s
second point of error.
Trial Counsel Was Not Ineffective for Allegedly Not Testing
Appellant’s Blood
Summary of the Argument
In his final point of error, Appellant complains that his trial counsel should
have tested his blood for the presence of THC, making the baseless assumption
that such a test would have proven there was no THC in his blood. However, given
the surrounding circumstances in Appellant’s case, it is likely that any blood test
would have confirmed the presence of THC in Appellant’s blood. In any event,
Appellant has not and cannot demonstrate that the test would have shown an
absence of THC in his blood, and his final point of error should likewise be
overruled.
5
To avoid undue repetition, the State relies on its Statement of Facts as well as the secondary
summary and argument given supra (at 25-27), which are equally applicable here.
31
Argument
Appellant claims his trial counsel was ineffective for failing to test his blood
for the presence of THC. Brief for Appellant at 19. According to Appellant’s
testimony, he “was out of marijuana for two days” before the wreck (IV R.R. at
64). Appellant has not and cannot establish that the test would have returned have
come back negative for the presence of THC. The State also pointed out the
implausibility of Appellant’s assertion that his glass marijuana pipe – which he
claimed was in his center console – ended up outside of his cab near a fence
without breaking on its own (id. at 65). The State again argued Appellant had
attempted to hide the pipe and his marijuana use in closing: “he want’s y’all to
believe a glass pipe was somehow ejected from his vehicle and landed perfectly
unbroken through a fence. That doesn’t make any sense” (id. at 89).
Given the evidence already available to Appellant’s trial counsel, further
investigation might only have revealed more harmful evidence which could be
used against Appellant. See Ex parte Martinez, 195 S.W.3d 713, 721 (Tex. Crim.
App. 2006) (“[A] particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy measure of deference
to counsel’s judgments”).
Although Appellant claims the blood test results would have been favorable,
Appellant has not put forth any evidence to support his speculative assertion. See
32
Robinson v. State, 03-14-00407-CR, 2015 WL 4515128, at *9 (Tex. App.—Austin
July 22, 2015) (not designated for publication), petition for discretionary review
filed (Aug. 27, 2015) (the appellant presented no evidence to establish a more
thorough investigation would have helped his cause). Because he cannot show the
results would have been favorable, and because trial counsel’s motivations for
allegedly failing to test Appellant’s blood for THC are not in the record, Appellant
cannot establish that his trial counsel’s alleged failure was “so egregious that no
effective attorney would have engaged in it.” See id. Finally, in light of the
extremely compelling punishment evidence in Appellant’s case, Appellant once
again cannot show a reasonable probability that the result of his proceeding would
have been different if his counsel had sought further testing – even if his blood had
not contained THC – in light of his admitted intoxication and the other egregious
facts of his case.6 The Court should therefore deny Appellant’s final point of error.
6
To avoid undue repetition, the State again relies on its Statement of Facts as well as the
secondary summary and argument given supra (at 25-27), which are equally applicable here.
33
Prayer
Wherefore, premises considered, Appellee respectfully prays that this
Honorable Court of Appeals affirm in all matters the judgment of the trial court in
this case.
JENNIFER THARP
Criminal District Attorney
By
/s/ Joshua D. Presley
Joshua D. Presley
SBN: 24088254
Assistant District Attorney
150 N. Seguin Avenue, Ste. #307
New Braunfels, Texas 78130
Phone: (830) 221-1300
Fax: (830) 608-2008
E-mail: preslj@co.comal.tx.us
Attorney for the State
34
Certificate of Service
I, Joshua D. Presley, Assistant District Attorney for the State of Texas,
Appellee, hereby certify that a true and correct copy of this Brief for the State has
been delivered to Appellant PAUL DANIEL CAMPBELL’s attorney of record in
this matter:
Amanda Erwin
amanda@theerwinlawfirm.com
109 East Hopkins Street, Suite 200
San Marcos, TX 78666
Fax: (512) 938-1804
Attorney for Appellant on Appeal
By electronically sending it through efile.txcourts.gov to the above-listed email
address, this the 30th day of September, 2015.
/s/ Joshua D. Presley
Joshua D. Presley
Certificate of Compliance
I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas
Rules of Appellate Procedure that the instant brief is computer-generated using
Microsoft Word and said computer program has identified that there are 7,662
words within the portions of this brief required to be counted by Rule 9.4(i)(1) &
(2) of the Texas Rules of Appellate Procedure.
The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.
/s/ Joshua D. Presley
Joshua D. Presley
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