Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00286-CR
Kevin BATTS, Appellant
v.
The STATE of Texas, Appellee
From the 437th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR4824 Honorable Dick Alcala, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: December 10, 2014
AFFIRMED AS REFORMED
On March 11, 2014, a jury found Appellant Kevin Batts guilty of possession of cocaine,
four grams or more but less than 200 grams. The same jury acquitted Batts on a second charge of
possession of cocaine with intent to deliver. The trial court subsequently found both of the State’s
enhancement allegations to be true and sentenced Batts to twenty-five years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice. On appeal, Batts contends his
trial counsel provided ineffective assistance and the trial court erred in assessing attorney’s fees.
Because the record supports Batts is indigent, we reform the judgment to remove the award of 04-14-00286-CR
attorney’s fees; however, because Batts failed to prove his defense counsel’s conduct was
unreasonable and not a sound trial strategy, we affirm the trial court’s judgment as reformed.
INEFFECTIVE ASSISTANCE OF COUNSEL
During the State’s presentation of the evidence, the jury was informed that drugs were
discovered during Batts’s arrest on a parole violation. Batts concedes that, because the drugs were
found in the back seat of a patrol car, his parole violation was necessary to explain why he was in
the back seat of a police car. Thus, the State was permitted to present evidence that he was arrested
on a parole violation warrant. Batts insists, however, that his counsel’s stipulation to other
testimony regarding his alleged parole violation and counsel’s description of him during closing
argument as a “convicted felon” were both inadmissible and prejudicial amounting to ineffective
assistance of counsel.
A. Standard of Review
In order to establish that trial counsel rendered ineffective assistance, Batts must “establish
two components by a preponderance of the evidence: deficient performance of trial counsel and
harm resulting from that deficiency that is sufficient to undermine the confidence in the outcome
of the trial.” Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)); accord Menefield v. State, 363 S.W.3d 591, 592 (Tex.
Crim. App. 2012). To establish the first prong, deficient performance, Batts must prove that his
attorney’s performance “‘fell below an objective standard of reasonableness’ under prevailing
professional norms and according to the necessity of the case.” Ex parte Moore, 395 S.W.3d at
157 (quoting Strickland, 466 U.S. at 687–88). To establish harm, Batts “must demonstrate that he
was prejudiced by his attorney’s performance or that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. at
158 (quoting Strickland, 466 U.S. at 694). -2- 04-14-00286-CR
“An appellate court looks to the totality of the representation and the particular
circumstances of each case in evaluating the effectiveness of counsel.” Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). “There is a strong presumption that counsel’s conduct
fell within the wide range of reasonable professional assistance.” Id. Therefore, Batts “‘must
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.’” Ex parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466
U.S. at 689).
“A substantial risk of failure accompanies an appellant’s claim of ineffective assistance of
counsel on direct appeal.” Thompson, 9 S.W.3d at 813. “In the majority of instances, the record
on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.”
Id. at 813–14. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.
2003). In the absence of a developed record, we will not “speculate as to the reasons why trial
counsel acted as he did, rather [we] must presume that the actions were taken as part of a strategic
plan for representing the client.” Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San
Antonio 2010, pet. ref’d). Moreover, an “appellate court should not find deficient performance
unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged
in it.’” Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005)).
B. Arguments of the Parties
Batts contends that his trial counsel committed unprofessional errors by stipulating to
inadmissible and prejudicial testimony that Batts was arrested for violating parole. Batts also
maintains that counsel’s use of the term “convicted felon” during closing argument, in reference
to Batts, prejudiced the jury against him. -3- 04-14-00286-CR
C. Analysis
Prior to the start of the State’s case, the prosecutor notified the trial court that she intended
to inform the jury that the narcotics were discovered during Batts’s arrest on a parole violation.
She assured the trial court that she would neither “go into any of his offenses” nor inquire why
Batts was on parole. Defense counsel promptly agreed to stipulate that Batts was on parole but
reiterated that the defense did not want the jury informed of the underlying charges. More
specifically, counsel explained that he wanted the jury to understand that the violations that
produced the warrant were only technical violations and that Batts had not been arrested for any
new violations. The prosecutor agreed to the stipulation.
1. Statements and Testimony in Question
Several officers testified that a parole-violation warrant was issued and that Batts was
arrested due to technical violations of his parole. San Antonio Police Detective Timothy Esp
testified that on the night in question, he and his partner, Officer Arturo Dominguez, were
dispatched to Batts’s residence regarding an active arrest warrant for Batts violating his parole.
Batts was arrested without incident and frisked for any weapons. Batts was placed in the back seat
of the patrol vehicle. Both officers testified that the back seat of the vehicle was checked for any
contraband at the beginning of each shift and Batts was the only individual in the back seat of the
patrol vehicle that evening.
Detective Esp testified that he remembered Batts squirming around in the back seat and
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00286-CR
Kevin BATTS, Appellant
v.
The STATE of Texas, Appellee
From the 437th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR4824 Honorable Dick Alcala, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: December 10, 2014
AFFIRMED AS REFORMED
On March 11, 2014, a jury found Appellant Kevin Batts guilty of possession of cocaine,
four grams or more but less than 200 grams. The same jury acquitted Batts on a second charge of
possession of cocaine with intent to deliver. The trial court subsequently found both of the State’s
enhancement allegations to be true and sentenced Batts to twenty-five years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice. On appeal, Batts contends his
trial counsel provided ineffective assistance and the trial court erred in assessing attorney’s fees.
Because the record supports Batts is indigent, we reform the judgment to remove the award of 04-14-00286-CR
attorney’s fees; however, because Batts failed to prove his defense counsel’s conduct was
unreasonable and not a sound trial strategy, we affirm the trial court’s judgment as reformed.
INEFFECTIVE ASSISTANCE OF COUNSEL
During the State’s presentation of the evidence, the jury was informed that drugs were
discovered during Batts’s arrest on a parole violation. Batts concedes that, because the drugs were
found in the back seat of a patrol car, his parole violation was necessary to explain why he was in
the back seat of a police car. Thus, the State was permitted to present evidence that he was arrested
on a parole violation warrant. Batts insists, however, that his counsel’s stipulation to other
testimony regarding his alleged parole violation and counsel’s description of him during closing
argument as a “convicted felon” were both inadmissible and prejudicial amounting to ineffective
assistance of counsel.
A. Standard of Review
In order to establish that trial counsel rendered ineffective assistance, Batts must “establish
two components by a preponderance of the evidence: deficient performance of trial counsel and
harm resulting from that deficiency that is sufficient to undermine the confidence in the outcome
of the trial.” Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)); accord Menefield v. State, 363 S.W.3d 591, 592 (Tex.
Crim. App. 2012). To establish the first prong, deficient performance, Batts must prove that his
attorney’s performance “‘fell below an objective standard of reasonableness’ under prevailing
professional norms and according to the necessity of the case.” Ex parte Moore, 395 S.W.3d at
157 (quoting Strickland, 466 U.S. at 687–88). To establish harm, Batts “must demonstrate that he
was prejudiced by his attorney’s performance or that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. at
158 (quoting Strickland, 466 U.S. at 694). -2- 04-14-00286-CR
“An appellate court looks to the totality of the representation and the particular
circumstances of each case in evaluating the effectiveness of counsel.” Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). “There is a strong presumption that counsel’s conduct
fell within the wide range of reasonable professional assistance.” Id. Therefore, Batts “‘must
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.’” Ex parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466
U.S. at 689).
“A substantial risk of failure accompanies an appellant’s claim of ineffective assistance of
counsel on direct appeal.” Thompson, 9 S.W.3d at 813. “In the majority of instances, the record
on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.”
Id. at 813–14. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.
2003). In the absence of a developed record, we will not “speculate as to the reasons why trial
counsel acted as he did, rather [we] must presume that the actions were taken as part of a strategic
plan for representing the client.” Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San
Antonio 2010, pet. ref’d). Moreover, an “appellate court should not find deficient performance
unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged
in it.’” Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005)).
B. Arguments of the Parties
Batts contends that his trial counsel committed unprofessional errors by stipulating to
inadmissible and prejudicial testimony that Batts was arrested for violating parole. Batts also
maintains that counsel’s use of the term “convicted felon” during closing argument, in reference
to Batts, prejudiced the jury against him. -3- 04-14-00286-CR
C. Analysis
Prior to the start of the State’s case, the prosecutor notified the trial court that she intended
to inform the jury that the narcotics were discovered during Batts’s arrest on a parole violation.
She assured the trial court that she would neither “go into any of his offenses” nor inquire why
Batts was on parole. Defense counsel promptly agreed to stipulate that Batts was on parole but
reiterated that the defense did not want the jury informed of the underlying charges. More
specifically, counsel explained that he wanted the jury to understand that the violations that
produced the warrant were only technical violations and that Batts had not been arrested for any
new violations. The prosecutor agreed to the stipulation.
1. Statements and Testimony in Question
Several officers testified that a parole-violation warrant was issued and that Batts was
arrested due to technical violations of his parole. San Antonio Police Detective Timothy Esp
testified that on the night in question, he and his partner, Officer Arturo Dominguez, were
dispatched to Batts’s residence regarding an active arrest warrant for Batts violating his parole.
Batts was arrested without incident and frisked for any weapons. Batts was placed in the back seat
of the patrol vehicle. Both officers testified that the back seat of the vehicle was checked for any
contraband at the beginning of each shift and Batts was the only individual in the back seat of the
patrol vehicle that evening.
Detective Esp testified that he remembered Batts squirming around in the back seat and
Batts telling the officers that he “wanted to lie down and take a nap.” Shortly after Detective Esp
took Batts into the jail, Officer Dominguez reported to Detective Esp that he located contraband
in the back seat of the patrol car—in the area right behind where the small of Batts’s back would
have been.
-4- 04-14-00286-CR
2. Alleged Deficient Performance
During cross-examination, Batts’s counsel asked whether “a violator of parole, [is]
someone who’s already been convicted of a crime, right?” He further described Batts as a
“convicted felon” during closing argument. Batts contends both the question and the description
of Batts were unprofessional errors that prejudiced his case.
Batts relies on Victor v. State, 995 S.W.2d 216, 223 (Tex. App.—Houston [14th Dist.]
1999, pet. ref’d), for the proposition that although Batts’s arrest was relevant and admissible for
the limited purpose of same transaction contextual evidence under evidentiary rule 404(b), the
underlying reason for the arrest was not. However, Batts contends his defense counsel’s broad
stipulation that Batts was arrested on a “parole-violation” and “gratuitously” reminding the jury
that Batts was a convicted felon was clearly deficient performance. See Ex parte Moore, 395
S.W.3d at 157. Batts continues that no sound trial strategy could evolve from eliciting parole
violation evidence given the inherent prejudicial nature of the extraneous offense evidence and the
fact that the evidence would not have been otherwise admissible. See Stone v. State, 17 S.W.3d
348, 352–54 (Tex. App.—Corpus Christi 2000, pet. ref’d).
We remain mindful that “‘an appellate court commonly will assume a strategic motivation
if any can possibly be imagined, and will not conclude the challenged conduct constituted deficient
performance unless the conduct was so outrageous that no competent attorney would have engaged
in it.’” Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting Garcia v. State,
57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
Here, Batts concedes that the fact he was being arrested on a previous warrant would come
out during the testimony. Defense counsel clearly articulated his concern to the trial court that he
wanted the jury to understand that Batts was being arrested for a technical violation, and not
because he had committed an offense. Yet, during cross-examination, defense counsel also -5- 04-14-00286-CR
attempted to use the same information to his advantage. He argued that because Batts was on
parole and being arrested based on a parole-violation, the officers would have taken extra
precautions. Specifically, based on the underlying warrant and concern for officer safety, the
officers would have conducted an extensive pat-down prior to placing Batts in the back seat of the
patrol car. Counsel’s use of “convicted felon” to describe Batts was in relation to this argument.
Counsel argued that because Batts was arrested on a parole violation warrant and such warrant
would have increased officer safety concerns and precautions, Batts did not, and could not, have
had the contraband on his body when he was placed in the back of the patrol car. We cannot say
that this is not a reasonable trial strategy. See Ex parte Moore, 395 S.W.3d at 157.
D. Conclusion
Upon review of the entire record, we conclude Batts failed to affirmatively demonstrate his
ineffective assistance of counsel claims. See id.; Freeman v. State, 125 S.W.3d 505, 506–07 (Tex.
Crim. App. 2003); Thompson, 9 S.W.3d at 813. The record reflects that defense counsel conducted
extensive cross-examination of all the witnesses and his questions led to argument against the
contraband being on Batts’s person prior to being placed in the back seat of the patrol car.
The fact that other counsel may have tried the case differently does not show ineffective
assistance. Bone, 77 S.W.3d at 833. To the contrary, we are bound by the strong presumption that
defense counsel’s conduct was reasonable and professional and could be considered sound trial
strategy. Id. Batts’s claims are not firmly founded in the record and we will not engage in
retrospective speculation. Id. at 835; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1984) (holding appellate court will not indulge in speculation concerning trial counsel’s decision-
making process); see also Ex parte Moore, 395 S.W.3d at 157. We conclude that Batts failed to
show counsel’s performance was deficient; therefore, we need not address prejudice. See Garcia,
57 S.W.3d at 440. -6- 04-14-00286-CR
Accordingly, we overrule Batts’s issue related to ineffective assistance of counsel.
ATTORNEY’S FEES
Batts contends that he was represented by appointed counsel and that such appointment is
evidence of his inability to pay attorney’s fees as court costs. The State concedes the award of
attorney’s fees was erroneous.
The record before this court does not contain an affidavit of indigency for appointment of
counsel before the trial. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2014); Wiley
v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013). Yet, the record establishes that court-
appointed counsel represented Batts at trial and on appeal. Accordingly, this court concludes that
Batts was indigent and unable to afford counsel. See Wiley, 410 S.W.3d at 317 (explaining a
defendant previously found indigent is presumed to remain indigent); Cates v. State, 402 S.W.3d
250, 251 (Tex. Crim. App. 2013) (“[A] ‘defendant who is determined by the court to be indigent
is presumed to remain indigent for the remainder of the proceedings in the case unless a material
change in the defendant’s financial circumstances occurs.’”) (quoting TEX. CODE CRIM. PROC.
ANN. art. 26.04(p)). The trial court, therefore, erred in assessing attorney’s fees against Batts.
CONCLUSION
Because Batts failed to prove his defense counsel’s conduct was unreasonable and not a
sound trial strategy, we cannot conclude his counsel’s performance was deficient. Bone, 77
S.W.3d at 833. Accordingly, we reform the judgment and bill of costs to delete Batts’s requirement
to pay attorney’s fees, and we affirm the trial court’s judgment as reformed.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
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