ACCEPTED 12-15-00022-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 7/10/2015 11:19:44 AM CATHY LUSK CLERK
CAUSE NO. 12-15-00022-CR
IN THE FILED IN 12th COURT OF APPEALS TYLER, TEXAS THE 12th DISTRICT COURT OF APPEALS7/10/2015 11:19:44 AM CATHY S. LUSK Clerk FOR THE
STATE OF TEXAS
DARRELL WAYNE BELL,
APPELLANT V.
THE STATE OF TEXAS,
APPELLEE
STATE’S REPLY TO APPELLANT’S BRIEF
D. MATT BINGHAM Criminal District Attorney Smith County, Texas
JACOB D. PUTMAN Assistant Criminal District Attorney Bar I.D. No. 24065929 Smith County Courthouse 100 N. Broadway Tyler, Texas 75702 ph: (903) 590-1720 fax: (979) 590-1719
ORAL ARGUMENT NOT REQUESTED TABLE OF CONTENTS
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 REPLY TO APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
COUNTERPOINT ONE: THE RECORD DOES NOT SUPPORT THAT APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A LESSER-INCLUDED OFFENSE INSTRUCTION. . . . . . . . . . . . . . 2
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ii INDEX OF AUTHORITIES
STATUTE/RULES PAGE
TEX. PENAL CODE § 21.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
§ 21.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
§ 22.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
FEDERAL CASES PAGE
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 8, 9
STATE CASES PAGE
Alaniz v. State, 937 S.W.2d 593 (Tex.App. - San Antonio 1996, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Banda v. State, 890 S.W.2d 42 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5
Ex parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5
Ex parte Zepeda, 819 S.W.2d 874 (Tex.Crim.App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Goad v. State, 354 S.W.3d 443 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 5
iii STATE CASES (cont.) PAGE
Hampton v. State, 109 S.W.3d 437 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Jackson v. State, 877 S.W.2d 768 (Tex. Crim.App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Kemp v. State, 892 S.W.2d 112 (Tex.App. - Houston [1st Dist.] 1994, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . 7
McFarland v. State, 845 S.W.2d 824 (Tex.Crim.App.1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Rice v. State, 333 S.W.3d 140 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rios v. State, 990 S.W.2d 382, 385 (Tex. App. - Amarillo 1999, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Smith v. State, 297 S.W.3d 260 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
iv CAUSE NO. 12-15-00022-CR
IN THE
THE 12th DISTRICT COURT OF APPEALS
FOR THE
TO THE HONORABLE COURT OF APPEALS:
Comes now the State of Texas, by and through the undersigned Assistant
Criminal District Attorney, and respectfully urges this Court to overrule
Appellant’s alleged error and affirm the judgment and sentence of the trial court in
this case.
1 STATEMENT OF FACTS
Appellant has accurately stated the essential nature of the evidence presented
at his trial. In the interest of judicial economy, any other facts not mentioned herein
that may be relevant to disposition of Appellant's point of error will be discussed in
the State's arguments in response to that point.
REPLY TO APPELLANT’S POINT OF ERROR AND SUMMARY OF ARGUMENT
COUNTERPOINT ONE: THE RECORD DOES NOT SUPPORT THAT APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A LESSER-INCLUDED OFFENSE INSTRUCTION.
A. Summary of Argument
Under his only point of error, Appellant argues his trial attorney was
ineffective for failing to request a lesser-included offense instruction. (Appellant’s
brief at 3). However, Appellant has failed to establish that he is entitled to relief
where the record does not support a lesser-included offense instruction. Even if the
record does support a lesser-included offense instruction, the record is insufficient to
establish that counsel was ineffective for not requesting the instruction.
B. Lesser-Included Offense Instruction
Determining whether a defendant is entitled to a lesser-included-offense
instruction requires a two-part analysis. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007). The Court must first consider whether the offense contained in the
2 requested instruction is a lesser-included offense of the charged offense. Id at 535.
If the requested instruction is a lesser-included offense, then the Court must decide
whether the admitted evidence supports the instruction. Rice v. State, 333 S.W.3d
140, 144 (Tex. Crim. App. 2011).
The evidence supports an instruction on a lesser-included offense if it permits
a rational jury to find the defendant guilty only of the lesser-included offense. Id. at
145. "[T]here must be some evidence directly germane to the lesser-included offense
for the finder of fact to consider before an instruction on a lesser-included offense is
warranted." Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003).
“However, we may not consider ‘[t]he credibility of the evidence and whether it
conflicts with other evidence or is controverted.’” Goad v. State, 354 S.W.3d 443,
446-447(Tex. Crim. App. 2011). (citing Banda v. State, 890 S.W.2d 42, 60 (Tex.
Crim. App. 1994)). If a lesser-included instruction was not warranted by the evidence
admitted, then it cannot be ineffective assistance of counsel not to request the lesser-
included instruction. Ex parte Thompson, 179 S.W.3d 549, 559-560 (Tex. Crim. App.
2005).
1. Aggravated Sexual Assault and Indecency with a Child are Lesser- Included Offenses
3 Appellant was indicted for Continuous Sexual Abuse of a Young Child under
§21.02 of the Texas Penal Code. (CR: 1). Continuous Sexual Abuse requires proof
of more than one specific act of sexual abuse over a period of more than 30 days. Id.
In this case, Appellant’s indictment for Continuous Sexual Abuse alleges several
specific instances of Indecency with a Child under §21.11 Texas Penal Code and
Aggravated Sexual Assault under §22.021 Texas Penal Code. Id. The State concedes
that both Indecency with a Child and Aggravated Sexual Assault of a Child are lesser-
included offenses of Continuous Sexual Abuse in this case under the first prong of
Hall.
2. The Admitted Evidence Does Not Support a Lesser-Included Instruction
Appellant describes several instances of testimony in the record that he
believes support a lesser-included instruction. (Appellant’s brief at 6-8). Each of these
instances are conflicts Appellant believes exist within the testimony of the victim,
L.K.. Id. However, Appellant has not identified any evidence or testimony in the
record that would permit a jury rationally to find a him guilty of only the lesser-
included offense.
Rather, Appellant specifically argues, “These, among other inconsistencies and
questions of credibility, gave rise to a situation where the jury may have disbelieved
that anything occurred on two or more of the dates L.K, described....” (Appellant's
4 brief at 8). Appellant’s assertion that a lesser-included offense instruction was
warranted by the evidence is based wholly upon the premise that the jury might have
found the victim credible as to some of the testimony and not credible as to other
parts of the testimony.
Appellant cites no authorities allowing for the submission of a lesser-included
offense based upon a jury’s determination of credibility of a witness. On the contrary,
the Court of Criminal Appeals has repeatedly and expressly held that when
determining whether a lesser-included offense should be given, “[W]e may not
consider ‘[t]he credibility of the evidence and whether it conflicts with other evidence
or is controverted.’” Goad v. State, 354 S.W.3d 443, 447 (Tex. Crim. App. 2011),
Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994), Smith v. State, 297
S.W.3d 260, 275 (Tex. Crim. App. 2009).
Appellant does not cite and the record does not contain any other evidence
directly germane to a lesser-included offense. Accordingly, a lesser-included
instruction was not warranted based on the evidence presented at trial for failure to
satisfy the second prong of Hall. Since the lesser-included instruction was not
warranted, Appellant’s trial counsel was not ineffective in failing to request the
instruction. Ex parte Thompson, 179 S.W.3d 549, 559-560 (Tex. Crim. App. 2005).
C. The Strickland Standard on Direct Appeal
5 Traditionally, when confronted with an ineffective assistance of counsel claim
from either stage of a trial, the Court will apply the two-pronged analysis set forth by
the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex. Crim.
App.1986) (adopting Strickland as applicable standard under Texas Constitution).
Under the first prong of the Strickland test, Appellant in this case must satisfy his
burden to show that counsel’s performance was “deficient.” Strickland, 466 U.S. at
687, 104 S.Ct. 2052. “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. To be successful in this regard, Appellant “must show that
counsel’s representation fell below an objective standard of reasonableness.” Id. at
688. Under the second prong, Appellant must further show that the deficient
performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052.
Thus, the appropriate standard for judging prejudice requires Appellant to
“show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
at 694, 104 S.Ct. 2052. Appellant must prove both prongs of Strickland by a
preponderance of the evidence in order to prevail. McFarland v. State, 845 S.W.2d
6 824, 842 (Tex. Crim. App.1992). Furthermore, claims of ineffective assistance must
be firmly founded in the record. Rios v. State, 990 S.W.2d 382, 385 (Tex. App. -
Amarillo 1999, no pet.). The failure of Appellant to make either of the required
showings of deficient performance and sufficient prejudice defeats the claim of
ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.1999).
Importantly, performance of counsel cannot be adequately examined based on
a trial court record. Kemp v. State, 892 S.W.2d 112, 115 (Tex.App. - Houston [1st
Dist.] 1994, pet. ref'd). A proper review should focus on a record specifically
targeting the conduct of trial counsel. Id. Such a record is best developed during a
hearing on application for writ of habeas corpus or motion for new trial. Id.; Jackson
v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994) (Baird, J., concurring). To
find that trial counsel was ineffective based on a record silent as to why trial counsel
conducted the trial as he did, would call for speculation, which is generally not
permitted. Id. Only in rare and egregious circumstances would a record on direct
appeal suffice to rebut the presumption of sound trial strategy. Kemp, 892 S.W.2d at
115; Ex parte Zepeda, 819 S.W.2d 874, 877 (Tex.Crim.App. 1991) (counsel’s failure
to request instruction on law of accomplice witness testimony constitutes ineffective
assistance of counsel according to Strickland standard); Alaniz v. State, 937 S.W.2d
593, 596 (Tex.App. - San Antonio 1996, no pet.) (record reflected counsel was
7 ineffective for allowing venire person who had been struck to sit on the jury).
D. Application of the Strickland Standard to the Facts of the Case
Appellant alleges under a single point the ineffectiveness of his trial attorney
for failing to request a lesser-included offense instruction. (Appellant’s brief at 3).
If the Court finds that a lesser-included offense instruction was warranted by the
evidence admitted, the record is still insufficient to establish that Appellant’s trial
counsel was ineffective for failing to request the instruction where his thought
processes behind that decision are not apparent on the record.
At the charge conference, Appellant’s counsel did not request a lesser-included
offense instruction. (RR 8: 129-132). Neither the trial court nor counsel for the State
ever mentioned including or excluding a lesser-included offense instruction. Id.
Given that the record is silent as to why Appellant’s trial counsel did not request a
lesser-included instruction, Appellant cannot meet his burden under Strickland. Any
attempt by this Court to determine Appellant’s trial counsel’s strategy or lack-there-of
would thus be pure speculation.
E. Conclusion
Based upon the record of this case it cannot be said that Appellant’s trial
attorney was ineffective for the reasons alleged under Appellant’s point of error. The
evidence presented at trial did not warrant a lesser-included offense instruction.
8 Therefore, Appellant’s trial counsel was not ineffective for failing to request that
instruction.
Even if the evidence at trial did warrant the lesser included instruction, the
record is insufficient to establish that the decision not to request the instruction was
not based upon a sound trial strategy. Consequently, Appellant has not met his burden
under Strickland and his point of error should be overruled.
PRAYER
WHEREFORE, for the reasons stated herein, the State of Texas prays that the
Court of Appeals overrule Appellant’s Point of Error and affirm the judgment of the
114th District Court, Smith County, Texas, in this case.
Respectfully submitted,
D. MATT BINGHAM Smith County Criminal District Attorney
/s/ Jacob D. Putman Asst. Criminal District Attorney Bar I.D. No. 24065929 100 N. Broadway, 4th Fl. Tyler, Texas 75702 (903) 590-1720 (903) 590-1719 (fax)
9 CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that the pertinent sections of the State’s Reply
Brief in the above numbered cause contain 1,725 words, an amount which complies
with Texas Rule of Appellate Procedure 9.4 (i)(3).
/s/ Jacob D. Putman
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 10th day of July, 2015, the following have been completed:
(1) The original copy of the State’s Response to Appellant’s Brief in the above numbered cause has been sent via electronic filing to the Clerk of the Court of 12th Court of Appeals.
(2) A legible copy of the State’s Response to Appellant’s Brief in the above numbered cause has been sent has been sent via electronic filing to:
Mr. Austin Reeve Jackson Attorney at Law 112 East Line, Suite 310 Tyler, Tx 75702
/s/ Jacob D. Putman Asst. Criminal District Attorney Bar I.D. No. 24065929