ACCEPTED 06-14-00104-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/11/2015 10:54:54 AM DEBBIE AUTREY CLERK
NO. 06-14-00104-CR
FILED IN IN THE TEXAS 6th COURT OF APPEALS TEXARKANA, TEXAS 2/11/2015 10:54:54 AM COURT OF APPEALS DEBBIE AUTREY v. Clerk FOR THE
SIXTH APPELLATE DISTRICT OF TEXAS
CHARLES DOUGLAS MCCLAIN, III
Appellant,
v.
THE STATE OF TEXAS
Appellee
Appealed from the 115th District Court of Upshur County, Texas Trial Cause No. 16,545
APPELLEE’S REPLY
Natalie A. Miller State Bar No. 24079007 405 N. Titus Gilmer, TX 75644 Telephone: 903-843-5513 Fax: 903-843-3661
ATTORNEY FOR APPELLEE STATE OF TEXAS ORAL ARGUMENT IS NOT REQUESTED. IDENTITY OF PARTIES AND COUNSEL
Appellee certifies that the following is a complete list of all parties to the trial court’s judgment and the names and addresses of their trial and appellate counsel.
Presiding Judge: The Honorable Lauren Parish District Judge 115th Judicial District Gilmer, Texas 75644
Appellant: Charles Douglas McClain, III TDC #01931721 Jordan Unit 1992 Helton Road Pampa, TX 79065
Appellant’s Attorney: Brandon T. Winn (at Trial) 411 West Tyler Street Gilmer, TX 75644
Appellant’s Counsel: Tim Cone (on Appeal) Attorney at Law P.O. Box 413 Gilmer, TX 75644
Attorney for the State (at trial): A. Camille Henson Assistant Criminal District Attorney 405 N. Titus Street Gilmer, TX 75644
Attorney for the State: Natalie A. Miller (on Appeal) Assistant Criminal District Attorney Upshur County 405 N. Titus Street Gilmer, TX 75644
ii TABLE OF CONTENTS
Identity of Parties and Counsel ........................................................................................ ii
Table of Contents .............................................................................................................. iii
Index of Authorities .......................................................................................................... iv
Statement of the Case ........................................................................................................ 1
Issues Presented ................................................................................................................. 1
POINT OF ERROR NUMBER ONE: The Appellant received ineffective assistance of counsel at trial. POINT OF ERROR NUMBER TWO: The trial court erred in admitting into evidence the Appellant’s oral statements. Statement of Facts ............................................................................................................. 1 Summary of the Arguments ............................................................................................. 1 Argument
I. Appellant Received Effective Counsel at Trial……………………………………………………………………………..2-5 II. Article 38.22 of the Texas Code of Criminal Procedure Does not Apply as Appellant was not in Custody…………………………………..……………...6-8
Conclusion .......................................................................................................................... 8 Prayer ................................................................................................................................. 9 Certificate of Service ......................................................................................................... 9 Certificate of Compliance………………………………………………………..………9
iii INDEX OF AUTHORITIES
United States Supreme Court Authority McMann v. Richardson, 397 U.S. 759, 771 (1970)………………………………..……...2
Stansbury v. California, 511 U.S. 318 (1994)…………………………………………….6
Strickland v. Washington, 466 U.S. 668 (1984)…………………………………………..2
Texas Cases Hart v. State, 314 S.W.3d 37 (Tex. App.—Texarkana 2010)…………………………..4-5
Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)……………………………..2
Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011)…………………………2, 3, 4, 5
Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App. 2012)…………………………..3-4
Salinas v. State, 163 S.W.3d 734 (Tex. Crim. App. 2005)………………..………………5
State v. Saenz, 411 S.W.3d 488 (Tex. Crim. App. 2013)…………………………………6
State v. Scheffield, No. 03-12-00669-CR, 2014 Tex. App. LEXIS 13831 (Tex. App.— Austin Dec. 30, 2014, no pet.) (mem. op., not designated for publication)……………….6
Wright v. State, 154 S.W.3d 235, 239 (Tex. App.—Texarkana 2005, pet. ref’d)……..….7
Texas Statutes
Tex. Code of Crim. Proc.
Art. 38.22………………………………………………………………………..6, 8
iv STATEMENT OF THE CASE
The State does not object to the Appellant’s statement of the case.
ISSUES PRESENTED
Appellant raises the following points as issues in his brief:
1. The Appellant received ineffective assistance of counsel at trial.
2. The trial court erred by admitting into evidence the Appellant’s oral statements.
STATEMENT OF FACTS
The State is generally satisfied with the Appellant’s statement of facts, but makes
the following additions. During the interview Appellant gave to Sergeant Walker, he was
advised of his rights when giving a statement to law enforcement. 3 R.R. 64. As well,
during the State’s direct examination of Sergeant Walker, there was no mention of a
polygraph test taken by the Appellant. Id.
During the punishment phase of the trial, Appellant’s counsel elicited testimony
from Appellant regarding all types of punishment: probation, shock probation and
confinement in prison. 3 R. R. 109-110.
SUMMARY OF THE ARGUMENTS
A. Point of Error One
Appellant received effective counsel. Appellant suggests that his counsel was
ineffective due to the fact that he asked the trial court for probation when it was not an
admissible punishment. However, the record is silent as to why trial counsel made
1 certain decisions at trial. Without explanation, the actions of Appellant’s trial counsel do
not rise to the level of warranting a reversal because of ineffectiveness.
B. Point of Error Two
Appellant was not in custody when he made incriminating statements to law
enforcement. Because Appellant voluntarily spoke with law enforcement and left after
the interview, additional safeguards required by Texas law did not apply. The State
properly elicited the admissions made by the Appellant when it called Sergeant Walker to
testify.
ARGUMENT AND AUTHORITIES
I. Appellant Received Effective Counsel at Trial
A. Standard of Review
Appellant first argues that his counsel was ineffective. However, the Appellant’s
right to effective counsel does not mean “a right to errorless counsel, but rather 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 (1970). A claim of
ineffective assistance of counsel is analyzed under the test articulated in Strickland v.
Washington, 466 U.S. 668 (1984); see also Hernandez v. State, 726 S.W.2d 53 (Tex.
Crim. App. 1986). Under Strickland, Appellant must prove by a preponderance of the
evidence that (1) trial counsel’s representation was deficient and (2) that the deficient
performance was so egregious that it prejudiced his defense. Strickland, 466 U.S. at 687.
Nevertheless, an appellate court’s review of trial counsel’s performance is “highly
2 deferential” and a strong presumption exists that counsel “rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment.”
Id. at 689-90. It is not enough that an “appellant show, with the benefit of hindsight, that
his counsel’s actions or omissions during trial were merely of questionable competence.”
Lopez v. State, 343 S.W.3d 137, 142-43 (Tex. Crim. App. 2011). Specifically, “counsel’s
deficiency must be affirmatively demonstrated in the trial record … when such direct
evidence is not available, [the Court] will assume that counsel had a strategy if any
reasonably sound strategic motivation can be imagined.” Lopez v. State, 343 S.W.3d at
143 (emphasis added). Although rare, a single, egregious error may indicate ineffective
assistance of counsel. Id. at 142. In the absence of such egregious error by trial counsel,
complaints of ineffective assistance of counsel are best addressed in an application for
writ of habeas corpus, as “on direct appeal, the record is usually inadequately developed
and cannot adequately reflect the failings of trial counsel for an appellate court to fairly
evaluate the merits of such a serious allegation.” Id. at 143. One avenue that an
Appellant may use to supplement the record after trial is “through a hearing on a motion
for new trial.” Id.
B. Trial Counsel’s Performance as not Egregious
Where the record fails to explain why counsel acted as they did at trial, the record
does not support deficient representation by trial counsel. Menefield v. State, 363 S.W.3d
591, 593 (Tex. Crim. App.) For instance “trial counsel should ordinarily be afforded an
opportunity to explain his actions before being announced as ineffective.” Id. Notably,
3 when “trial counsel is not given that opportunity, then the appellate court should not find
deficient performance unless the challenged conduct was so outrageous that no
competent attorney would have engaged in it.” Id. In reaching its decision, the
Menefield Court surmised that several reasons may explain why counsel failed to object.
Id. at 593. Nevertheless, as neither counsel for the State or Defense had opportunity to
contest the allegation, the lower court’s holding that “the record on direct appeal was
sufficient to find trial counsel ineffective” was reversible. Id. at 592.
The case at bar compares with the case heard by the Menefield Court; defense
counsel was not afforded the opportunity to explain his actions at trial. The record is
void of any motion for new trial or any request for fact finding hearings submitted by
appellate counsel. It seems that if trial counsel’s representation was so ineffective as to
warrant it as ineffective, a motion for new trial should have been filed. Nevertheless, trial
counsel has never even had the opportunity to elaborate on his trial decisions. Likewise,
there is not an error contained within the record committed by Appellant’s counsel that is
so egregious that it renders his representation ineffective. See Lopez, 343 S.W.3d at 142.
Next, Appellant mistakenly likens the holding of Hart v. State, to the case at bar.
See generally 314 S.W.3d 37 (Tex. App.—Texarkana 2010). While similarities certainly
exist between the instant case and Hart, a paramount difference sets the two apart—
recorded testimony by counsel and the defendant explaining their actions at trial. In
Hart, the defendant pled guilty based upon advice by his trial counsel that he could
receive probation if he did so. Id. at 41-42. As well, the defendant suffered from severe
4 learning disabilities that were (1) not properly investigated by his counsel and (2)
impacted his ability to knowingly, intelligently, and voluntarily waive his right to plead
not guilty. Id. at 42. Ultimately, this honorable Court concluded that regardless of the
defendant’s mental status, he had relied on false information by his counsel. Id. at 44-45.
And while Appellant surmises that this happened in the instant case, there is no testimony
from the Appellant or his trial counsel to explain their actions at trial and why the
Appellant waived his right to jury. Rather, without such explanations from trial counsel
and the Appellant, it is speculation to assume that Appellant’s trial counsel misinformed
him of the punishment options.
In large part, Appellant circumstantially suggests that trial counsel was ineffective
because Appellant asked the trial court to grant probation for his punishment. As well,
the record in this case contains no explanation of why trial counsel made certain
decisions, and “because the record is silent on counsel’s reasoning…[appellate
courts]…cannot adequately reflect upon the motives behind trial counsel’s actions.
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Appellant simply
questions, with the benefit of hindsight, the decisions made by trial counsel. Perhaps
asking Appellant about probation, was trial counsel’s way of suggesting that the trial
court should impose a light sentence. Nevertheless, in light of all of trial counsel’s
correct actions at trial, suggesting that the Appellant received probation or a short prison
sentence does not rise to the level of an error so egregious that his representation was
ineffective. See Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
5 II. Article 38.22 of the Texas Code of Criminal Procedure Does not Apply as Appellant was not in Custody
According to Article 38.22, section 3(a) of the Texas Code of Criminal Procedure,
certain safeguards must be followed when a defendant chooses to participate in “custodial
interrogation.” However, those safeguards have no application to the case at bar, because
the Appellant was not in custody. To decide whether or not a defendant is in custody, a
reviewing court examines the facts surrounding the interview, “but the ultimate inquiry is
simply whether there [was] a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest.” State v. Scheffield, No. 03-12-00669-CR, 2014
Tex. App. LEXIS 13831, at *3 (Tex. App.—Austin Dec. 30, 2014, no pet.) (mem. op.,
not designated for publication) (citing Stansbury v. California, 511 U.S. 318, 322
(1994)). As well, a reviewing court examines whether “given those circumstances,
would a reasonable person have felt he or she was not at liberty to terminate the
interrogation and leave.” See Scheffield, 2014 Tex. App. LEXIS 13831, at *3 (citing
Thompson v. Keohane, 516 U.S. 99, 112 (1995). Furthermore, the Court of Criminal
Appeals has articulated four scenarios that constitute custody: “(1) when the suspect is
physically deprived of his freedom of action in any significant way, (2) when a law
enforcement officer tells the suspect that he cannot leave, (3) when law enforcement
officers create a situation that would lead a reasonable person to believe that his freedom
of movement has been significantly restricted, and (4) when there is probable cause to
arrest and law enforcement officers do not tell the suspect that he is free to leave.” State
v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013). 6 Likewise, the admissions admitted at trial that the Appellant complains about stem
from Appellant’s admissions made during a voluntary polygraph test. At trial, the State
called Sergeant Derrick Walker as a witness and elicited testimony solely about
Appellant’ admissions. “Statements made during a polygraph pretest interview, during
the polygraph examination itself, or during an interview after the examination, may be
admissible evidence, but the proper procedure for introducing such evidence before the
jury [or judge in this case] is to redact from such evidence all references to the polygraph
examination.” Wright v. State, 154 S.W.3d 235, 239 (Tex. App.—Texarkana 2005, pet.
ref’d). In effort to comply with the Wright Court, the State made no mention that the
Appellant had taken a polygraph test in an effort to avoid any prejudice.
Prior to trial, counsel for Appellant received all discovery in possession of the
State. Contained within that discovery, was an offense report written by Investigator
Roxanne Warren. Warren indicated that the Appellant came to the police station for a
noncustodial interview on July 25, 2013 at 10:25 a.m. Warren’s interview with Appellant
was videotaped and provided to Appellant’s counsel. During Warren’s interview with
Appellant, Warren asked Appellant if he would like to take a polygraph test, to which the
Appellant agreed. Appellant was free to leave at this time, and Warren scheduled the
polygraph test with Sergeant Walker of the Texas Department of Public Service. On July
30, 2013, Appellant voluntarily arrived at the police department, was advised of his rights
and still chose to proceed with the polygraph examination. Although Appellant’s
admissions to Sergeant Walker were incriminating, he was not arrested after the
7 polygraph. Sergeant Walker videotaped and audio taped Appellant’s polygraph test.
During trial, the State asked Sergeant Walker about admissions Appellant had made to
him.
In the instant case, Appellant’s second issue lacks merit. Appellant was not in
custody when he made incriminating statements to Sergeant Walker. As well, the State
properly avoided disclosing the fact that Appellant took and failed a polygraph test, and
merely elicited statements against the Appellant’s penal interest. Prior to trial, counsel
filed a motion to suppress statements made by the Appellant, but never asked the trial
court for a hearing nor raised the issue at trial. Article 38.22 of the Texas Code of
Criminal Procedure has no application to the admissions made by Appellant, as Appellant
was not in custody and never indicated—through testimony during motion a to
suppress—that he thought he was not free to leave.
CONCLUSION
Without an explanation of why trial counsel made certain decisions at trial, his
representation does not fall to the level of ineffective. Considering his client confessed to
the crime, Appellant’s decision to waive his right to trial by jury and ask the trial court
for a low sentence is not per se ineffective. In fact, there may be several reasons why
trial counsel thought this was within his client’s best interest. As well, because the
Appellant was not in custody at the time he made incriminating admissions to Sergeant
Walker, additional safeguards required by Texas law do not apply in the instant case.
8 PRAYER
Wherefore, premises considered, the State prays that Appellant’s relief be denied
and that the case be affirmed in all things.
Respectfully Submitted, Upshur Co. Assistant District Attorney Natalie A. Miller 405 N. Titus Gilmer, TX 75644 Tel: (903) 843-5513 Fax: (903) 843-3661
BY: /s/ Natalie A. Miller Natalie A. Miller SBOT: 24079007
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been delivered to Tim Cone on this the 11th day of February, 2015.
/s/ Natalie A. Miller Natalie A. Miller
CERTIFICATE OF COMPLAINCE
Appellee’s Reply Brief contains 2,609 words.