Opinion issued January 16, 2020
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00972-CR ——————————— LEGEORDEN MAYKEITHIS PLATER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court Harris County, Texas Trial Court Case No. 1578947
MEMORANDUM OPINION
Legeorden Maykeithis Plater appeals his conviction for unlawful possession
of a firearm by a felon. See TEX. PENAL CODE § 46.04. He argues that his trial
counsel was ineffective for failing to present an opening argument and failing to
request a necessity instruction. We affirm. Background
In the early morning hours of February 2, 2018, Houston police officers
attempted to conduct a traffic stop on a white van. Instead of pulling over, the van
accelerated and led police on a chase. The van eventually turned into the parking
lot of an apartment complex. While the van was still moving, the front doors
opened, and two people fled on foot. A police officer chased the driver on foot
through the complex and eventually apprehended Plater, whom the officer believed
was the driver. During the arrest, Plater told the officer that he had a gun in his
pocket.
Plater was indicted for evading arrest in a motor vehicle and for unlawful
possession of a firearm by a felon. At trial, Plater testified that he was not the
driver but happened to be in the complex outside a friend’s apartment when the
chase ended. He admitted that he was a felon and that he had a gun in his pocket
when he was arrested.
The jury found him not guilty of evading arrest and guilty of the firearm
charge. The trial court sentenced him to six years’ imprisonment. This appeal
followed.
2 Ineffective Assistance of Counsel
On appeal, Plater argues that his trial counsel was ineffective for failing to
make an opening statement and failing to request an instruction regarding the
defense of necessity.
A. Standard of Review
To prevail on a claim of ineffective assistance of counsel, the defendant
must show that (1) counsel’s performance was deficient and (2) a reasonable
probability exists that but for counsel’s deficient performance, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687, 694 (1984). The defendant bears the burden of proof on both issues, and
failure to make either showing by a preponderance of the evidence will defeat his
ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999).
Under the first Strickland prong, any judicial review of whether counsel’s
performance was deficient must be highly deferential to trial counsel and avoid the
deleterious effects of hindsight. Id. We begin by presuming that trial counsel
performed within professional norms. Id. We do not assume that counsel lacked a
sound reason for making the choices he did; on the contrary, the defendant must
demonstrate that no plausible reason exists for a particular act or omission. Bone v.
State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); Toledo v. State, 519 S.W.3d
3 273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). When the record is
silent as to trial counsel’s strategy, we will not conclude that appellant received
ineffective assistance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” See Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial record contain
sufficient information to permit a reviewing court to fairly evaluate the merits of
such a serious allegation. See Bone, 77 S.W.3d at 833. In the majority of cases, the
appellant is unable to meet the first prong of the Strickland test because the record
is underdeveloped and does not adequately reflect the alleged failings of trial
counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
A sound trial strategy may be imperfectly executed, and the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “It is not
sufficient that defendant show, with the benefit of hindsight, that his counsel’s
actions or omissions during trial were merely of questionable competence.” Mata,
226 S.W.3d at 430. Rather, to establish that the attorney’s acts or omissions were
outside the range of professionally competent assistance, appellant must show that
counsel’s errors were so serious that he was not functioning as counsel. See Patrick
v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).
4 Under the second Strickland prong, a defendant must show more than “that
the errors had some conceivable effect on the outcome of the proceeding.” Perez v.
State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.
at 693). The defendant must show that there is a reasonable probability that, but for
his attorney’s errors, the jury would have had a reasonable doubt about his guilt.
Id. (quoting Strickland, 466 U.S. at 695). A reasonable probability is probability
sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. “If
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, that course should be followed.” Id. at 697.
B. Failure to Make an Opening Statement
Plater argues that his trial counsel rendered ineffective assistance by failing
to make an opening statement. Whether to deliver an opening statement is entirely
optional. Darkins v. State, 430 S.W.3d 559, 570 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d); see also Calderon v. State, 950 S.W.2d 121, 127 (Tex. App.—El
Paso 1997, no pet.) (“The option for defense counsel to deliver an opening
statement immediately after the State makes an opening statement is entirely
discretionary.”). “Few matters during a criminal trial could be more imbued with
strategic implications than the exercise of this option.” Darkins, 430 S.W.3d at 570
(quoting Calderon, 950 S.W.2d at 127). Plater did not file a motion for new trial
alleging ineffective assistance of counsel or otherwise develop a record of
5 counsel’s reasons for his actions. On this record, counsel’s failure to make an
opening statement was not conduct “so outrageous that no competent attorney
would have engaged in it.” See Goodspeed, 187 S.W.3d at 392.
C. Failure to Request Special Instruction on Necessity
Plater asserts that his trial counsel was ineffective for failing to request a
jury instruction on the defense of necessity. Plater testified at trial that on the
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Opinion issued January 16, 2020
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00972-CR ——————————— LEGEORDEN MAYKEITHIS PLATER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court Harris County, Texas Trial Court Case No. 1578947
MEMORANDUM OPINION
Legeorden Maykeithis Plater appeals his conviction for unlawful possession
of a firearm by a felon. See TEX. PENAL CODE § 46.04. He argues that his trial
counsel was ineffective for failing to present an opening argument and failing to
request a necessity instruction. We affirm. Background
In the early morning hours of February 2, 2018, Houston police officers
attempted to conduct a traffic stop on a white van. Instead of pulling over, the van
accelerated and led police on a chase. The van eventually turned into the parking
lot of an apartment complex. While the van was still moving, the front doors
opened, and two people fled on foot. A police officer chased the driver on foot
through the complex and eventually apprehended Plater, whom the officer believed
was the driver. During the arrest, Plater told the officer that he had a gun in his
pocket.
Plater was indicted for evading arrest in a motor vehicle and for unlawful
possession of a firearm by a felon. At trial, Plater testified that he was not the
driver but happened to be in the complex outside a friend’s apartment when the
chase ended. He admitted that he was a felon and that he had a gun in his pocket
when he was arrested.
The jury found him not guilty of evading arrest and guilty of the firearm
charge. The trial court sentenced him to six years’ imprisonment. This appeal
followed.
2 Ineffective Assistance of Counsel
On appeal, Plater argues that his trial counsel was ineffective for failing to
make an opening statement and failing to request an instruction regarding the
defense of necessity.
A. Standard of Review
To prevail on a claim of ineffective assistance of counsel, the defendant
must show that (1) counsel’s performance was deficient and (2) a reasonable
probability exists that but for counsel’s deficient performance, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687, 694 (1984). The defendant bears the burden of proof on both issues, and
failure to make either showing by a preponderance of the evidence will defeat his
ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999).
Under the first Strickland prong, any judicial review of whether counsel’s
performance was deficient must be highly deferential to trial counsel and avoid the
deleterious effects of hindsight. Id. We begin by presuming that trial counsel
performed within professional norms. Id. We do not assume that counsel lacked a
sound reason for making the choices he did; on the contrary, the defendant must
demonstrate that no plausible reason exists for a particular act or omission. Bone v.
State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); Toledo v. State, 519 S.W.3d
3 273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). When the record is
silent as to trial counsel’s strategy, we will not conclude that appellant received
ineffective assistance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” See Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial record contain
sufficient information to permit a reviewing court to fairly evaluate the merits of
such a serious allegation. See Bone, 77 S.W.3d at 833. In the majority of cases, the
appellant is unable to meet the first prong of the Strickland test because the record
is underdeveloped and does not adequately reflect the alleged failings of trial
counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
A sound trial strategy may be imperfectly executed, and the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “It is not
sufficient that defendant show, with the benefit of hindsight, that his counsel’s
actions or omissions during trial were merely of questionable competence.” Mata,
226 S.W.3d at 430. Rather, to establish that the attorney’s acts or omissions were
outside the range of professionally competent assistance, appellant must show that
counsel’s errors were so serious that he was not functioning as counsel. See Patrick
v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).
4 Under the second Strickland prong, a defendant must show more than “that
the errors had some conceivable effect on the outcome of the proceeding.” Perez v.
State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.
at 693). The defendant must show that there is a reasonable probability that, but for
his attorney’s errors, the jury would have had a reasonable doubt about his guilt.
Id. (quoting Strickland, 466 U.S. at 695). A reasonable probability is probability
sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. “If
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, that course should be followed.” Id. at 697.
B. Failure to Make an Opening Statement
Plater argues that his trial counsel rendered ineffective assistance by failing
to make an opening statement. Whether to deliver an opening statement is entirely
optional. Darkins v. State, 430 S.W.3d 559, 570 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d); see also Calderon v. State, 950 S.W.2d 121, 127 (Tex. App.—El
Paso 1997, no pet.) (“The option for defense counsel to deliver an opening
statement immediately after the State makes an opening statement is entirely
discretionary.”). “Few matters during a criminal trial could be more imbued with
strategic implications than the exercise of this option.” Darkins, 430 S.W.3d at 570
(quoting Calderon, 950 S.W.2d at 127). Plater did not file a motion for new trial
alleging ineffective assistance of counsel or otherwise develop a record of
5 counsel’s reasons for his actions. On this record, counsel’s failure to make an
opening statement was not conduct “so outrageous that no competent attorney
would have engaged in it.” See Goodspeed, 187 S.W.3d at 392.
C. Failure to Request Special Instruction on Necessity
Plater asserts that his trial counsel was ineffective for failing to request a
jury instruction on the defense of necessity. Plater testified at trial that on the
morning in question, he was standing outside his friend’s apartment when he heard
a car crash. Moments later, two men ran by him with guns. He moved to the side,
took something from his pocket, and threw it under a car. He then dropped to his
knees because police officers were approaching. A police officer placed him in
handcuffs, and he notified the officer that he had a gun in his pocket. During his
testimony, Plater admitted that he had previously been convicted of a felony drug
charge.
Necessity is a confession-and-avoidance defense that excuses an actor’s
conduct. See Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010). To be
entitled to the defense, the defendant must first admit to the conduct of the charged
offense. Id. at 405. The jury may then excuse that conduct if it determines that:
(1) the defendant reasonably believed that his conduct is immediately necessary to
avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly
outweighed the harm sought to be prevented by the law proscribing the conduct;
6 and (3) no legislative purpose exists to exclude the defense. TEX. PENAL CODE
§ 9.22.
Even if trial counsel had requested a necessity instruction, the trial court may
have refused the request on the ground that Plater presented no evidence of
imminent harm. Humaran v. State, 478 S.W.3d 887, 903 (Tex. App.—Houston
[14th Dist.] 2015, pet. ref’d). For an “imminent harm to occur, there must be an
emergency situation that requires a split-second decision without time to consider
the law.” Id. (citing Schier v. State, 60 S.W.3d 340, 343 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d)). Plater suggests that he needed to possess the gun
based on a fear of imminent harm. He argues that he proved imminent harm when
he testified that he saw two men with guns running through the apartment complex
pursued by police officers. But Plater possessed a gun before witnessing the chase,
and there is no evidence that he was confronted with the type of harm requiring
avoidance by a split-second decision.* Without such evidence, the jury would have
no basis for excusing Plater’s conduct as immediately necessary. Plater did not
meet his burden to prove that his counsel’s failure to request a jury instruction on
necessity fell below an objective standard of reasonableness. See Thompson,
9 S.W.3d at 812. We overrule his ineffective assistance of counsel issue.
* Plater was the only defense witness, and the State’s theory was that Plater drove the van in the police chase. 7 Conclusion
We affirm the judgment of the trial court.
Peter Kelly Justice
Panel consists of Justices Keyes, Lloyd, and Kelly.
Do not publish. TEX. R. APP. P. 47.2(b).