Ex Parte Richard Mark Bowman

ACCEPTED
01-13-01045-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/18/2015 2:29:43 PM
CHRISTOPHER PRINE
CLERK
No. 01-13-01045-CR
In the FILED IN
1st COURT OF APPEALS
Court of Appeals HOUSTON, TEXAS
For the 5/18/2015 2:29:43 PM
First District of Texas CHRISTOPHER A. PRINE
Clerk
At Houston
♦
No. 1921607
In the County Criminal Court at Law No. 2
of Harris County, Texas
♦
EX PARTE RICHARD MARK BOWMAN
♦
STATE’S BRIEF ON REMAND
FROM COURT OF CRIMINAL APPEALS
♦
DEVON ANDERSON
District Attorney
Harris County, Texas
DAVID OVERHULS
Assistant District Attorney
Harris County, Texas
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713.755.5826
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
interested parties is provided below:
Counsel for the State:
Devon Anderson  District Attorney of Harris County
Bridget Holloway  Assistant District Attorney on appeal
David Overhuls —Assistant District Attorney at laches hearing
Lindsey Vanik  Assistant District Attorney at writ hearing
Appellant or criminal defendant:
Richard Mark Bowman
Counsel for Appellant:
Randy Schaffer  Counsel on appeal & laches and writ hearings
Brian Wice  Counsel on appeal & laches and writ hearings
Ned Barnett — Counsel at 2005 DWI trial
Trial Judge:
Hon. William Harmon —Presiding Judge at laches and writ hearings
Hon. Michael Peters —Presiding Judge at trial
i
TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES ...................................................................................... i
TABLE OF CONTENTS................................................................................................................. ii
INDEX OF AUTHORITIES .........................................................................................................iii
STATEMENT OF THE CASE & PROCEDURAL HISTORY .............................................. 1
SUMMARY OF THE STATE’S ARGUMENT ......................................................................... 5
STATEMENT REGARDING ORAL ARGUMENT ............................................................... 6
STATE’S REPLY TO APPELLANT’S GROUND FOR REVIEW ....................................... 7
Applicable Authority .................................................................................................................. 7
Analysis .......................................................................................................................................... 9
A. Equitable Relief is Barred by Laches.......................................................................... 9
1. Unreasonable & Inexcusable Delay ...................................................................... 9
2. State is Prejudiced by Appellant’s Unreasonable & Inexcusable Delay .... 14
B. Ineffective Assistance of Counsel Claim is Without Merit ............................... 14
C. Conclusion.......................................................................................................................18
PRAYER ............................................................................................................................................18
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE ..............................19
ii
INDEX OF AUTHORITIES
CASES
Ex parte Bowman,
444 S.W.3d 272
(Tex. App. —Houston [1st Dist.] 2014) (op. on reh’g),
pet. granted, judgm’t vacated, 447 S.W.3d 887 (Tex. Crim. App. 2014) ................. 3
Ex parte Bowman,
447 S.W.3d 887 (Tex. Crim. App. 2014) ..............................................................3, 6, 7, 9
Ex parte Carrio,
992 S.W.2d 486 (Tex. Crim. App. 1999).......................................................................... 7
Ex parte Garcia,
353 S.W.3d 785 (Tex. Crim. App. 2011). .......................................................................... 7
Ex parte Perez,
398 S.W.3d 206 (Tex. Crim. App. 2013) ................................................................ 7, 8, 14
Ex parte Smith,
444 S.W.3d 661 (Tex. Crim. App. 2014) .......................................................................... 2
Ex pate Scott,
190 S.W.3d 672 (Tex. Crim. App. 2006) .........................................................................13
Scheanette v. State,
144 S.W.3d 503 (Tex. Crim. App. 2004).........................................................................17
Strickland v. Washington,
466 U.S. 668 (1984) ..............................................................................................................15
iii
STATUTES
TEX. PENAL CODE
§49.09(a) (West 2013) ........................................................................................................13
RULES
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................................... i
TEX. R. EVID. 608(b)..................................................................................................................17
iv
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE & PROCEDURAL HISTORY
Appellant, Richard Mark Bowman, was found guilty of driving while
intoxicated (DWI) in 2005. (RRIV —Ex. 1). Pursuant to a punishment
agreement, the trial court sentenced appellant to 180 days’ confinement, probated
for one year, and assessed an $800 fine. (RRIV —Ex. 13 at 237, 240-41). While
appellant originally appealed his conviction, his motion to dismiss the appeal was
granted in January 2006. See No. 01-05-00106-CR. Appellant was successfully
discharged from his probation in 2007.
In April 2013, appellant was arrested and charged with another DWI. The
charge was enhanced with his 2005 conviction, making it a DWI second offender.
(RRIV —Ex. 1). Only after his second offender arrest did appellant file an
application for writ of habeas corpus, alleging that his trial counsel was ineffective
in 2005. After a hearing on the writ, with testimony from his 2005 trial counsel,
the trial court denied appellant habeas relief. (CR at 4, 85; RRIII at 22). Findings
of fact and conclusions of law were entered. (CR at 100). Appellant timely
appealed the trial court’s denial of habeas relief. (CR at 115).
On June 5, 2014, this Court issued a published opinion finding (1) the Court
of Criminal Appeals’ opinion in Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App.
1
2014) would be inapplicable to an 11.072 writ, (2) the State failed to preserve the
appellate court’s consideration of the doctrine of laches by failing to assert the
doctrine in the trial court; and (3) despite the trial court’s denial of habeas relief,
the trial court’s findings do not support that trial counsel’s defense strategy was
informed by a reasonable pre-trial investigation. This Court then granted
appellant habeas relief and set aside the 2005 judgment of conviction. See Ex parte
Bowman, No. 01-13-01045-CR (Tex. App. —Houston [1st Dist.] June 5, 2014) (op.
withdrawn on denial of reh’g).
The State filed a motion for rehearing and a motion for rehearing en banc on
June 13, 2014, with the following grounds: (1) asking the court to delete harmful
and baseless dicta indicating that how the doctrine of laches might apply to an
11.07 writ would not be applicable to an 11.072 writ; (2) noting the court erred in
holding the State waived the application of the doctrine of laches when the State
was the prevailing party at the writ hearing, and the court of appeals, therefore,
was permitted to uphold the ruling on any legal theory, including the doctrine of
laches, regardless of the State’s failure to raise the issue at the hearing; (3) noting
the court erred in reversing the trial court’s ruling on an issue never raised by the
losing party at the writ hearing when the appellant argued, and the trial court
ruled, on whether trial counsel was ineffective for failing to cross-examine the
officer with his payroll record, not whether he was ineffective for failing to do an
2
adequate pretrial investigation; and (4) pointing out it was error to find appellant
was prejudiced by his trial counsel’s failure to use a document he testified he
would not have used and that is inadmissible under the rules of evidence.
On August 26, 2014, this Court denied the State’s motion for rehearing,
withdrew its earlier opinion, issued a new, yet unsubstantially different, published
opinion, and “dismissed as moot” the State’s motion for rehearing en banc. See Ex
parte Bowman, 444 S.W.3d 272 (Tex. App. —Houston [1st Dist.] 2014) (op. on
reh’g), pet. granted, judgm’t vacated, 447 S.W.3d 887 (Tex. Crim. App. 2014).
On petition for discretionary review, the Court of Criminal Appeals
simultaneously granted and delivered its opinion, vacating this Court’s opinion, on
the State’s following issue on November 19, 2014:
Second: Does the State have to argue laches at an article
11.072 hearing, in which the State was the
prevailing party, to preserve the equitable doctrine
for review on appeal?
Relying on its opinion in Ex parte Smith, the Court of Criminal Appeals held that
“equity and fairness[,] applies to any habeas case” and “the State is correct that
laches applies to Art. 11.072.” See Ex parte Bowman, 447 S.W.3d 887, 888 (Tex. Crim.
App. 2014). The Court further concluded that “[the State’s] laches argument was
not waived.” See id. Accordingly, the Court of Criminal Appeals, as it did in Ex
3
parte Smith, vacated this Court’s opinion and remanded this case to this Court to
“remand to the trial court for a hearing on the laches issue.” See id. at 888-89.
The Court of Criminal Appeals “dismissed without prejudice” the following
two issues:
First: The First Court of Appeals erred in finding
appellant’s trial counsel ineffective for
failing to obtain a document he testified he
strategically would have chosen not to use,
contained information he knew and
utilized, and that was a document
inadmissible under the rules of evidence.
Third: The First Court of Appeals erred in failing
to find laches barred appellant habeas relief
and supported the trial court’s ruling.
See id. at 889.
On January 27, 2015, this Court abated this case to the trial court, where a
hearing on the laches issue took place on March 2, 2015. At the conclusion of the
hearing, the trial court found: (1) appellant’s delay in waiting to file his habeas
claim was unreasonable because it was sought now only to void his first DWI
where he faced a minimum of thirty days in jail upon his second DWI charge; (2)
while appellant consulted with three attorneys (Michael Pena, Troy McKinney,
and Brian Wice) after his first DWI conviction in 2005, he relied on their advice;
and (3) the State was prejudiced by appellant’s delay due to the unlikelihood the
State could get a conviction on a misdemeanor DWI on facts now over ten years
4
old. (LHII at 149). The trial court concluded appellant was not entitled to
equitable relief. (LHII at 149).
♦
SUMMARY OF THE STATE’S ARGUMENT
While appellant initially argued his trial attorney at his conviction on this
case, Ned Barnett, was ineffective for failing to obtain Officer Lindsey’s payroll
records when “no reasonably competent lawyer [in 2005] would have gone to trial
in a case involving Lindsey without first obtaining his payroll and disciplinary
records,”1 he now asks this Court to find that the three attorneys who reviewed
this case post-conviction in 2005 let him down since they failed to see what “all
reasonably competent lawyers” were supposed to know, and bring an ineffective-
claim against Barnett, and were thus the reason for his delay in seeking habeas
relief. Upon appealing the denial of habeas relief before this Court last year, Wice
continuously argued “no reasonably competent lawyer” would have failed to get
Lindsey’s payroll record back in 2005; yet, he now claims he is the exception,
because although he was one of the attorneys who reviewed appellant’s trial
record for purposes of filing a writ back in 2005, he did not know about Lindsey’s
1
See “Brief for Appellant” at 22, authored by Wice and Randy Schaffer.
5
overtime pay back then. 2 Appellant cannot have it both ways in order to succeed
on one claim and defeat another.
The record shows the only reason appellant sought habeas relief over seven
years later was to “get rid” of the conviction so it would not enhance his second
DWI charge. Because the bases of appellant’s ineffective-assistance claim is either
without merit or barred by the equitable doctrine of laches, the trial court never
abused its discretion in denying appellant his requested relief.
♦
STATEMENT REGARDING ORAL ARGUMENT
Because the applicable law is clearly stated in the Court of Criminal
Appeal’s remand to this Court, see Ex parte Bowman, 447 S.W.3d at 888, and because
the laches hearing in the trial court thoroughly addressed the issues to be
considered, another argument involving the exact same issues is unnecessary for
this Court’s review of the trial court’s findings.
♦
2
See “Appellant’s Post-Abatement Brief” at 12, also authored by Wice and Schaffer
(“Wice, who handles post-conviction cases, did not know about Lindsey in 2005…
[because] McKinney did not tell Wice about Lindsey’s overtime pay scam, and Wice did
not know about it because he did not try DWI cases.”).
6
STATE’S REPLY TO APPELLANT’S GROUND FOR REVIEW
Appellant argues the trial court abused its discretion in finding that laches
precluded him from receiving habeas relief. Because appellant’s delay in seeking
habeas relief was unreasonable and would have never happened were it not for his
second DWI arrest (and thus inexcusable), because the State would be prejudiced
in retrying a case over ten years old, and because appellant has now made it
abundantly clear that only “some” and not “all” reasonably competent attorneys
would have used Officer Lindsey’s payroll record in an attempt to discredit him,
the trial court has not abused its discretion in denying appellant habeas relief.
APPLICABLE AUTHORITY
A trial court’s denial of habeas corpus relief is reviewed for an abuse of
discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011). An Article
11.072 writ, like any habeas case, is governed by the elements of equity and
fairness. See Ex parte Bowman, 447 S.W.3d at 887. The Court of Criminal Appeals
has recognized that the doctrine of laches can bar habeas relief when the State is
harmed as a result of an unreasonable delay in pursuing a habeas claim. See Ex parte
Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999); see also Ex parte Perez, 398
S.W.3d 206, 215 (Tex. Crim. App. 2013) (reaffirming Carrio’s holding that Texas
7
courts may apply the common-law doctrine of laches in determining whether to
grant habeas relief).
In Ex parte Perez, the Court abandoned the federal laches standard in favor of
the common-law standard in order to “incorporate all forms of prejudice” viewed
in light of the “totality of the circumstances.” See id., at 208. Under the common-
law standard, no “particularized showing of prejudice” is required, which allows
courts to consider prejudice more “broadly.” Id. at 215. The standard broadens the
definition of prejudice to include “anything that places the State in a less favorable
position,” including “prejudice to the State’s ability to retry a defendant.” Id.
The extent of the prejudice that the State must prove bears an inverse
relationship to the length of the appellant’s delay. Id. at 217. The longer an
appellant delays filing an application, the less evidence the State must show to
demonstrate prejudice. Id. at 217-18 (reasoning that the longer a case has been
delayed, the more likely it is that the reliability of a retrial has been compromised).
This is especially true when defendants delay for “much more than five years after
conclusion of direct appeals.” Id. A delay longer than five years “may generally be
considered unreasonable in the absence of any justification for the delay.” Id. at
261 n. 12.
In reviewing the sufficiency of the evidence to support a laches bar, courts
should consider the following: (1) the length of the defendant’s delay in requesting
8
equitable relief; (2) the reason for the delay; (3) the degree and type of prejudice
bore by the State because of the delay; and (4) if the delay should be excused. See
Ex parte Bowman, 447 S.W.3d at 888 (quoting Ex parte Smith).
ANALYSIS
A. Equitable Relief is Barred by Laches
1. Unreasonable & Inexcusable Delay
Appellant delayed longer than five years. A jury found appellant guilty of
DWI on January 11, 2005. (CR at 21). While appellant originally appealed that
conviction, his motion to dismiss the appeal was granted on January 12, 2006, and
the appellate court issued mandate one day later. See No. 01-05-00106-CR.
Appellant’s habeas application, filed September 30, 2013, sought relief based on
counsel’s performance roughly seven years earlier and now over ten years ago.
Appellant’s explanation for the delay was that “three lawyers told him in
2005 that there were no grounds for relief.” 3 Thus, he did nothing until his second
DWI arrest. And, because this conflicts with his argument that all competent
attorneys would have known to use Lindsey’s payroll record to cross-examine him,
he attempts to offer a reason why each one failed to challenge Barnett, via a habeas
proceeding, for not utilizing the payroll record:
3
Appellant’s Post-Abatement Brief at 3.
9
• Michael Pena: dismissed appellant’s appeal, and Wice testified
he agreed that “Barnett did not preserve any appellate issues”
(LHII at 67);
• Troy McKinney: a “DWI guru” according to Wice, failed to file
a writ based upon ineffective assistance because of his
relationship with Barnett and failed to disclose that to
appellant (LHII at 66); and
• Brian Wice: although “every reasonably competent lawyer”
knew to use Lindsey’s payroll, not Wice, because he did not try
DWI cases and McKinney failed to tell him about Lindsey’s
payroll scam (LHII at 66).
First, the record shows that appellant only attempted to insinuate why
McKinney did not file an ineffective assistance claim against Barnett, through
Barnett’s testimony. (LHII at 55-60). Appellant did not call McKinney to testify,
the State did. Either way, both Barnett and McKinney testified that they were not
good friends and did not practice business together. (LHII at 55-60, 117-29). In
2005, however, McKinney’s firm (with Stanley Schneider) allowed Barnett to rent
a space for one of Barnett’s associates, who was already in that space when he
hired her. (LHII at 55-57, 119). Additionally, both men’s firms had a joint venture
in creating a website for sex cases that never involved handling a case together.
(LHII at 57-58, 119). McKinney testified he has filed writs on friends before and
has declined to be involved in writs based upon his relationship with the trial
attorney. (LHII at 125). While his memory on this case specifically has faded, he
10
further testified he “always” discloses to his clients any conflicts that exist. 4 (LHII
at 128). When asked about Lindsay’s overtime pay reputation in 2005, McKinney
testified:
I don’t know that it was widely known among the criminal
defense bar in general. I think most of the people who did DWI
defense knew about overtime of everyone on the task force,
whether they knew specifically about Lindsey or not.
(LHII at 121). While appellant prays this Court will believe the only reason
McKinney failed to file an ineffective assistance of counsel claim against Barnett
via a habeas proceeding was because of their relationship, the record fails to
support that claim.
Second, either Wice was incompetent in 2005 or not everyone knew to use
Lindsey’s payroll record against him in 2005. It cannot be both ways to garner
habeas relief on the same case (one way to succeed on appellant’s claim and the
other to defeat the State’s defense). The pinnacle of appellant’s claim from the
beginning was that Barnett failed to do what “all reasonably competent lawyers”
would have done in 2005. Yet, McKinney, who was, and still is, a “DWI guru,” did
not file an ineffective assistance of counsel claim against Barnett for failing to do
so, and testified he was not sure how well known Lindsey’s scam was back in
2005. (LHII at 121). And, of course, Wice did not catch it as an issue to bring on
4
“There have been occasions when people have come to me and because of the lawyer
involved I did not want to be involved with the writ. That was always dealt with up
front before I accepted any money to investigate the case.” (LHII at 124).
11
habeas, no matter what his excuse,5 when “all reasonably competent lawyers”
were supposed to know it in 2005. In fact, when asked on cross-examination
about his prior claim that “everyone knew about [Lindsey’s] overtime,” Wice
answered, “I don’t know about everybody, and I don’t know to what extent
everybody knew about it.” (LHII at 74). 6
The record clearly establishes that not all attorneys knew about Lindsey’s
overtime scam nor used his payroll record against him in trial. Pena, McKinney,
and Wice were not incompetent and did not let appellant down in 2005. By
actually cross-examining Lindsey about his overtime pay in appellant’s trial in
2005, Barnett knew more than Wice did at the time (yet was found ineffective by
this Court). Appellant knowingly acquiesced to all three attorneys informing him
he had no grounds to appeal nor to attack on a post-conviction writ of habeas
corpus.
Third, when asked how he got involved in this case in 2013, Wice testified:
I got a phone call from someone at Rusty Hardin’s office asking
me to talk to Mr. Bowman about whether there was anything
5
While Wice testified he did not try DWI cases, he clarified on cross-examination that
he sat as second chair on a few DWI cases, including one with Barnett, and may have
even taken a witness “that couldn’t hurt us.” (LHII at 71).
6
Furthermore, although rarely successful on direct appeal, Pena could have still
challenged Barnett’s effectiveness on direct appeal; instead, he dismissed the appeal (and
presumably did not see what “all reasonably competent lawyers” were deemed to know
at the time).
12
that could be done, given the fact that he had been arrested and charged
as a second offender in his second DWI case.
(LHII at 68). Appellant confirmed this by testifying he hired Wice in 2013 after
his lawyer on his second DWI charge recommended he contact Wice to see if he
could get his first DWI set aside. (LHII at 88). Schaffer even argued to the Court
that appellant “was trying to do what his lawyer said, get rid of the first DWI so it
don’t hurt you in the second.” (LHII at 112). No defendant should be able to sleep
on his rights until another arrest, then decide he needs to “get rid” of the first
arrest so he will not be punished as the legislature has planned upon subsequent
arrests. That is not an excusable delay. The State and the society have a legitimate
interest in the finality of a long-standing conviction. Ex parte Perez, 398 S.W.3d at
218. Further, courts should not condone a practice of sullying an attorney’s
reputation many years after convictions are final. See Ex pate Scott, 190 S.W.3d 672,
673-77 (Tex. Crim. App. 2006) (Cochran, J., concurring). The record supports the
trial court’s ruling that appellant filed this habeas claim seven years later, only
because he wanted to void his first DWI when he was looking at a minimum of
thirty days in jail upon a second DWI conviction. (LHII at 149). See TEX. PENAL
CODE §49.09(a) (West 2013).
13
2. State is Prejudiced by Appellant’s Unreasonable & Inexcusable Delay
Even though a “particularized” showing of prejudice is no longer required,
the delay clearly caused memory lapses in the testimony of the witnesses. All
three officers involved in appellant’s arrest in 2004 had no independent
recolleciton of appellant’s case. (LHII at 21-30, 35-38, 41, 46-47). While they
could regurgitate what they testified to at the prior trial, it would not be from a
memory of the day of his arrest. Appellant’s attorneys still have possession of the
only functioning copy of the scene video of his arrest. Given the “sliding scale”
approach, appellant’s unreasonable delay supports a finding of prejudice to the
State to try the case over ten years after appellant’s arrest. See Ex parte Perez, 398
S.W.3d at 215.
The trial court did not abuse its discretion in concluding that appellant was
barred from habeas relief under the equitable doctrine of laches.
B. Ineffective Assistance of Counsel Claim is Without Merit
Given the new evidence offered at the second hearing on this habeas
request, the State urges this Court to reconsider its prior conclusion that Barnett
was ineffective in failing to do what “all reasonably competent lawyers” would
have done in 2005. It is impossible to ignore that the hearing on laches brought
forth contrary evidence to appellant’s argument that Barnett’s representation fell
below that of a reasonably competent attorney.
14
Under the first prong of Strickland, appellant must show that his counsel’s
performance was deficient to the extent that counsel failed to function as
“counsel” guaranteed by the Sixth Amendment, not that he failed to do what
“some” attorneys might have done. See Strickland v. Washington, 466 U.S. 668, 687
(1984). Appellant initially argued to the trial court, and this Court, that Barnett
was ineffective for failing to use Lindsey’s payroll record to show the officer had an
incentive to make arrests. Appellant presented affidavits from three criminal
defense lawyers who claimed no reasonably competent lawyer would have gone to
trial on a case involving Lindsey without first obtaining his payroll and
disciplinary records. (CR at 31-41, Exs. 7-9). Appellant offered the officer’s payroll
record to show he frequently made more in overtime pay than in his regular salary.
(CR at 6, Ex. 2).
Barnett testified he elicited from Lindsey that he received time-and-a-half
pay to be at the courthouse on his cases and that he made 476 arrests alone in
2004. (RRII at 20-21, 24, 39). Barnett also testified he strategically decided not to
“beat up” on the officer because, in his experience, it could alienate the jury. (RRII
at 26, 30, 35). He further testified he wanted the jury not to focus on the officer,
but on appellant’s adequate performance on the video. (RRII at 12, 35, 47-48).
The trial court found that trial counsel “did not know whether he had the
information regarding Lindsey’s overtime pay at the time of [appellant’s] trial but
15
that, even if he did, he would not have used it,” trial counsel did not have Lindsey’s
payroll record at the time of appellant’s trial in 2005, and “[s]ome criminal defense
lawyers would obtain Lindsey’s HPD payroll records” and “impeach him…to
demonstrate his financial motive for making DWI arrests.” (CR at 105-07).
Ultimately, the trial court concluded that eliciting the number of arrests the officer
made the previous year, and that he was paid time-and-a-half for overtime to
testify in court, “did give the jury sufficient information to assess [the officer’s]
financial motivation,” and trial counsel “acted within [ ] the accepted practice of a
reasonable professional by choosing to impeach Officer Lindsay to the degree he
did.” (CR at 107).
The record now shows, more so than before, that only “some” attorneys
would have obtained Lindsey’s payroll record to use against him in 2005. Pena,
McKinney, and Wice would not have done it in 2005. Wice would not have even
crossed Lindsey about his overtime pay. Barnett investigated enough to be aware
of the overtime pay incentive by Lindsey. That he did not do what “some defense
attorneys” did (or on appeal, would have done in retrospect), does not amount to
ineffective assistance of counsel. Giving the jury an exact number of “overtime
pay,” that was not exclusively based upon time in the courtroom due to DWI
16
arrests, 7 is merely a more aggressive route to take and one that could potentially
alienate the jury. Because appellate counsel (Schaffer, not Wice) would have
obtained and used the officer’s payroll record to cross-examine him, does not make
Barnett’s strategic decisions deficient. See Scheanette v. State, 144 S.W.3d 503, 509
(Tex. Crim. App. 2004).
Moreover, despite the trial court’s ruling that it would have allowed trial
counsel to use the record, it would have been inadmissible under rule 608(b). It is
impermissible to use extrinsic evidence to attack a witness’s credibility with
specific instances of conduct, other than the conviction of a crime, unless the
witness has testified about these matters in a manner inconsistent with the
evidence sought to be introduced. See TEX. R. EVID. 608(b). Officer Lindsey
testified to the number of arrests made the prior year and that he was paid
overtime for testifying in court on those arrests. Nothing about his testimony was
inconsistent with his payroll record. Appellant, therefore, was not prejudiced by
his trial counsel’s failure to use a document that he testified he would not have
used and that the rules of evidence deem inadmissible.
The trial court did not abuse its discretion in denying appellant habeas relief
based upon his ineffective assistance of counsel claim.
7
Officer Lindsey testified he worked an intersection “off duty” (thus, “overtime” pay)
that morning. (RRIV —TT at 145).
17
C. Conclusion
Because the bases of appellant’s ineffective-assistance claim is either
without merit or barred by the equitable doctrine of laches, the trial court never
abused its discretion in denying appellant his requested relief.
♦
PRAYER
The State respectfully requests this Court affirm the trial court’s ruling,
denying appellant habeas relief.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Bridget Holloway
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
1201 Franklin Suite 600
Houston, Texas 77002
(713) 755-5826
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
18
CERTIFICATE OF SERVICE AND WORD LIMIT COMPLIANCE
This is to certify: (a) that the word count of the computer program used to
prepare this document reports that there are 4454 words in the document; and (b)
the undersigned attorney requested that a copy of this document be emailed
through TexFile to the following email on May 18, 2015:
Randy Schaffer
Attorney at Law
Email: noguilt@swbell.net
Brian Wice
Attorney at Law
Email: wicelaw@att.net
/s/ Bridget Holloway
BRIDGET HOLLOWAY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
Texas Bar No. 24025227
holloway_bridget@dao.hctx.net
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