Gerald Ray Barrow v. State

• Court: Court of Appeals of Texas
• Decided: November 4, 2015
• Docket: 07-13-00046-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00046-CR

GERALD RAY BARROW, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the County Court Hale County, Texas Trial Court No. 2012C-427, Honorable Bill Coleman, Presiding

November 4, 2015

DISSENTING OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

This appeal was originally abated when the State appealed a new trial granted by

the trial court based upon an implied finding of ineffective assistance of counsel. On

July 16, 2014, this court issued a plurality opinion in State v. Barrow, finding the trial

court abused its discretion when it granted that new trial.1 Barrow’s motion for

1 State v. Barrow, No. 07-13-00147-CR, 2014 Tex. App. LEXIS 7762 (Tex. App.—Amarillo July 16, 2014, pet. ref’d) (mem. op., not designated for publication), Justice Campbell writing for the court. Chief Justice Quinn filed a concurring opinion and Justice Pirtle filed a dissenting opinion. rehearing was overruled,2 and a petition for discretionary review was refused by the

Court of Criminal Appeals.3

The abatement having now been lifted, this court has once again found that

Barrow’s ineffective assistance claim fails because “the court did not have before it

evidence of [trial counsel’s] reasons for focusing on urging the jury to honor Shirley

Barrow’s wishes rather than pursuing a claim of self-defense.” With myopic precision,

the court again focuses on the absence of direct evidence concerning counsel’s trial

strategy, ignoring all other evidence upon which a finding of ineffective assistance could

be based. Because I did not believe then, and I do not believe now, that direct evidence

of trial counsel’s trial strategy is some sort of talisman essential to a finding of ineffective

assistance of counsel, I respectfully dissent. See Ex parte Bryant, 448 S.W.3d 29, 39-

40 (Tex. Crim. App. 2014) (holding that “when no reasonable strategy could justify trial

counsel’s conduct . . . counsel’s performance falls below an objective standard of

reasonableness as a matter of law, regardless of whether the record adequately reflects

the trial counsel’s subjective reasons for acting as he did”).

Patrick A. Pirtle Justice

Do not publish.

2 State v. Barrow, No. 07-13-00147-CR, 2014 Tex. App. LEXIS 9332 (Tex. App.—Amarillo Aug. 20, 2014, pet ref’d) (with notation that Pirtle, J., would grant the motion for rehearing). 3 State v. Barrow, No. PD-1268-14, 2015 Tex. Crim. App. LEXIS 70 (Tex. Crim. App. Feb. 4, 2015).