ACCEPTED 01-14-00121-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 12/15/2015 12:32:03 PM No. 01-14-00121-CR CHRISTOPHER PRINE CLERK
In the Court of Appeals For the FILED IN 1st COURT OF APPEALS First District of Texas HOUSTON, TEXAS At Houston 12/15/2015 12:32:03 PM CHRISTOPHER A. PRINE Clerk
No. 1268863 In the 178th District Court Of Harris County, Texas
PAUL BRIONES Appellant V. THE STATE OF TEXAS Appellee STATE’S APPELLATE BRIEF
DEVON ANDERSON District Attorney Harris County, Texas
KIMBERLY APERAUCH STELTER Assistant District Attorney Harris County Criminal Justice Center 1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: 713.274.5826 stelter_kimberly@dao.hctx.net State Bar Number: 19141400
CONNIE SPENCE MARITZA ANTU Assistant District Attorneys Harris County, Texas
ORAL ARGUMENT NOT REQUESTED STATEMENT REGARDING ORAL ARGUMENT State believes that the matters raised by the appellant are well-settled, and that the briefs in this case adequately apprise this Court of the issues and the law. Therefore, the State does not request oral argument.
IDENTIFICATION OF THE PARTIES Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a
complete list of the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson District Attorney of Harris County
Kimberly Aperauch Stelter Assistant District Attorney on appeal
Connie Spence, Maritza Antu Assistant District Attorneys at trial
Appellant and counsel:
Paul Briones Appellant
Daucie Schindler Counsel on appeal
John Floyd, Christopher Carlson Defense counsel at trial
Trial Judge:
Honorable David Mendoza Judge Presiding
i TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ................................................i
IDENTIFICATION OF THE PARTIES ....................................................................i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF THE ARGUMENT ........................................................................ 5
REPLY TO APPELLANT’S FIRST, SECOND AND THIRD ISSUES PRESENTED........................................................................ 5
Standard of Review on Motion for New Trial
Standard of Review on Ineffective Assistance of Counsel
Defense Counsel’s Strategy was Based on Extensive Investigation and Preparation for Trial
1) Decision not to Call Multiple Witnesses for the Defense
2) Decision not to Impeach
3) Decision not to Call Other Witnesses to Present Mitigation Testimony at Punishment
Conclusion
PRAYER .................................................................................................................. 17
CERTIFICATE OF SERVICE ................................................................................ 18
CERTIFICATE OF COMPLIANCE ....................................................................... 19
ii INDEX OF AUTHORITIES CASES
Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) ............................................................................ 8 Damian v. State, 881 S.W.2d 102 (Tex. App.— Houston [1st Dist.] 1994, pet. ref'd) .............................................................................. 13 Davis v. State, 276 S.W.3d 491 (Tex. App.– Waco 2008, pet. ref'd) ......................................................................................................... 13 Ex parte Ewing, 570 S.W.2d 941 (Tex. Crim. App. 1978)....................................................................... 14 Ex Parte Imoudu, 284 S.W.3d 886 (Tex. Crim. App. 2009).......................................................................... 7 Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001) ............................................................................ 8 Hale v. State, 140 S.W.3d 381 (Tex. App.— Fort Worth 2004, pet. ref'd ............................................................................................... 10 Harris v. State, No. 01–88–00991–CR, 1990 WL 39468, at *4 (Tex. App.– Houston [1st Dist.] pet. ref'd) (not designated for publication)........................ 14 Messer v. State, 757 S.W.2d 820 (Tex. App.— Houston [1st Dist.] 1988, pet. ref'd) ................................................................................. 7 Mitchell v. State, 68 S.W.3d 640(Tex. Crim. App. 2002) ............................................................................. 7 Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993).......................................................................... 6 Richardson v. State, 921 S.W.2d 359 (Tex. App. – Houston [1st Dist.]1996, no pet.) ...................................................................................... 7
iii Shanklin v. State, 190 S.W.3d 154 (Tex. App.— Houston [1st Dist.] 2005, pet. dism’d) .......................................................................... 15 Sims v. State, 807 S.W.2d 618 (Tex. App.– Dallas 1991, pet. ref'd) ........................................................................................................ 14 State v. Gonzalez, 855 S.W.2d 692 (Tex. Crim. App. 1993).......................................................................... 6 Strickland v. Washington, 466 U.S. 668 (1984).......................................................................................................... 7, 16 Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ............................................................................... 8 Weisinger v. State, 775 S.W.2d 424 (Tex. App.— Houston [14th Dist.] 1989, pet. ref'd)........................................................................... 16 Williams v. State, 301 S.W.3d 675 (Tex. Crim. App. 2009).......................................................................... 8
STATUTES
TEX. CODE CRIM. PROC. art. 57.02(h) (West 2010) .............................................................. 1
RULES
TEX. R. APP. P. 38.2(a)(1)(A) ....................................................................................................... i
iv TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged by indictment with both indecency with a child
and aggravated sexual assault of a child (RR4 71-72). He entered a plea of
not guilty to both, and the two cases were tried together (CR 71-72). The
jury found him not guilty of aggravated sexual assault, but guilty of the
indecency charge, and assessed his punishment at 20 years in the
Institutional Division of the Texas Department of Criminal Justice (RR9 8,
RR10 190-191). Appellant filed a motion for new trial, which, after a
hearing, was denied (RR17 4-16). Appellant filed timely notice of appeal,
and the court certified his right to appeal (CR 67-68).
STATEMENT OF FACTS
Lisa1 was ten years old in the summer of 2004 (RR6 27). At this age
she and her older sister, Kim, spent a lot of time over at their Aunt Joanna’s
house (RR6 23-24, 32). Lisa liked go to Aunt Joanna’s as there were a lot of
things to do there (RR6 25). There were also cousins to play with. Joanna
1 In order to protect their privacy, the State will refer to the complainant by the pseudonym “Lisa,” and her sister by the name “Kim.” See TEX. CODE CRIM. PROC. art. 57.03(a) (West 2014). had three children of her own; Ashley, who was a few years older than Kim,
Johnathan, who was Lisa’s age, and Destinee, who was three years younger
than Lisa (RR6 28, 26). Appellant, Aunt Joanna’s husband and Lisa’s uncle by
marriage, was a police officer, but he wasn’t home very often and when he
was, he was usually sleeping due to his work schedule (RR6 30, 31). When
he was awake and playing with the kids, Lisa felt that she and Destinee were
his favorites (RR6 27, 34).
One evening that summer, Lisa and Kim were sleeping over at their
Aunt Joanna’s house. That night they set up a bed on the living room floor
and watched a movie with Destinee (RR6 42, 44). Kim and Destinee both fell
asleep during the movie, but Lisa was still awake when appellant got home
late from work (RR6 45-46).
Lisa was not supposed to be up that late, so she pretended to be asleep
when appellant came into the living room, turned off the TV, and adjusted a
blanket covering the three girls (RR6 50, 53). After moving about the house,
appellant came back over to Lisa’s side of the makeshift bed and laid down
(RR6 54-55). He removed the blanket from Lisa and pulled down her shorts
and underwear (RR6 58). Appellant then placed his hand on Lisa’s vagina
and moved his fingers (RR6 60). This made Lisa feel very uncomfortable, so
she started to stretch as if she were waking up (RR6 62). In response,
2 appellant pulled Lisa’s shorts and panties back up, placed the blanket back
over her, and walked away to the kitchen, where he started making a
sandwich (RR6 63, 64).
Not much later appellant came back and resumed where he had left
off, uncovering Lisa and pulling down her short and panties. This time,
however, he also put his mouth on Lisa’s vagina (RR6 66-67). Lisa once again
moved, turning her body toward her cousin, and again appellant covered her
up and left (RR6 69).
Appellant returned to Lisa’s side yet again that evening, this time
sexually assaulting her by putting his mouth and hand on her vagina (RR6
72). Lisa again responded by turning on her side, away from appellant (RR6
75). Appellant covered Lisa up and then went to his bedroom (RR6 74). Lisa,
meanwhile, moved to sleep between her cousin and her sister (RR6 74).
Appellant came out to the living room one more time that evening but,
perhaps thwarted by Lisa’s new sleeping position, just stood by the fireplace
and stared at Lisa before grabbing his sandwich and returning to his
bedroom (RR6 75). Lisa didn’t tell anyone what had happened that night, but
in the morning she packed up her belongings and told her aunt she wanted
to go home (RR6 77).
3 Lisa was scared and confused as to what had happened that evening,
and didn’t tell anybody until three years later, in the summer of 2007 (RR4
92, RR6 83). When she did tell, it was to her Aunt Katherine, and then she
only told her that appellant “touched me.” (RR4 149-150). She also made
her aunt promise not to tell her parents (RR4 94). Her aunt kept that
promise, but insisted that Lisa tell her parents (RR4 99).
Lisa finally did so in January of 2008, with her aunt Katherine present
(RR4 110 RR5 83-84, 88, RR 6 91). She gave only the “bare minimum” in
details about that night, however, and begged her parents not to go to the
police (RR6 91-92).
Lisa’s parents did take her to a psychologist at that time, but Lisa
refused to talk to her, as she felt she could not tell a complete stranger what
had happened (RR4 175-176, RR6 91). Lisa’s mother and father finally
acquiesced in not reporting appellant to the police, but they also made sure
that their children did not spend the night at appellant’s house ever again
(RR4 177, RR6 98-99).
Then, in 2010, Lisa’s father, while picking up clothes in Lisa’s
bedroom, came across some papers where Lisa had written about the
incident with appellant and how it was still affecting her (RR4 186, RR6 95,
104). At the time Lisa was feeling very depressed and sad, and was
4 considering harming herself (RR6 97). Lisa’s parent were alarmed by what
Lisa had written, and decided they needed to take some action, so they
finally reported the crime to the police (RR4 188, 193-194, RR5 125).
SUMMARY OF THE ARGUMENT
The trial court did not abuse it’s discretion in denying appellant’s
motion for new trial. The evidence developed at the motion for new trial
hearing supported the trial court’s findings that trial counsel rendered
effective assistance of counsel. In particular, the decision not to call certain
witnesses at the guilt/innocence and punishment stages of trial, as well as
the decision not to impeach the complaining witness with minor
inconsistences in her testimony from the previous trial, were legitimate
decisions based on sound trial strategy, and did not render trial counsel’s
representation ineffective.
REPLY TO APPELLANT’S FIRST, SECOND AND THIRD ISSUES PRESENTED
Appellant raises three issues on appeal, all concerning the trial court’s
decision to deny his motion for new trial. Appellant contends that the trial
5 court should have granted him a new trial on the basis that his trial counsel
was ineffective. Appellant presents three reasons why he believes his
counsel was ineffective: 1) his decision not to call certain witnesses for the
defense, 2) his decision not to impeach the complaining witness with certain
prior inconsistent statements, and 3) his decision not to present additional
mitigating evidence at the punishment stage of trial.
The trial court considered trial counsel’s testimony on each of these
three issues at the lengthy three day hearing on appellant’s motion for new
trial (RR14-RR16). At the conclusion of the hearing, the trial court made
specific findings of facts and conclusions of law that trial counsel’s decisions
were strategic ones that had a plausible basis, as set out in the record, and
that trial counsel rendered effective assistance of counsel (RR17 11). The
evidence supports the trial court’s ruling.
Ineffective assistance of counsel may be raised in a motion for new
trial. State v. Gonzalez, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993); Reyes v.
State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). Because the decision on a
motion for new trial rests within the sound discretion of the trial court, the
standard of review on appeal is whether the trial court abused its discretion.
In the absence of an abuse of discretion, appellate courts are not justified in
6 reversing the judgment. Gonzalez, 855 S.W.2d at 696. Richardson v. State,
921 S.W.2d 359, 361 (Tex. App. –Houston [1st Dist.]1996, no pet.). In
considering a motion for new trial, the trial court possesses broad discretion
in assessing the credibility of witnesses and in weighing the evidence to
determine whether a different result would occur upon retrial. Messer v.
State, 757 S.W.2d 820, 827–828 (Tex. App.—Houston [1st Dist.] 1988, pet.
ref'd).
To show ineffective assistance of counsel, a defendant must
demonstrate both (1) that his counsel’s performance fell below an objective
standard of reasonableness and (2) that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Ex
Parte Imoudu, 284 S.W.3d 886, 869 (Tex. Crim. App. 2009). A reasonable
probability is one sufficient to undermine confidence in the outcome of a
case. Strickland, 466 U.S. at 687; Mitchell v. State, 68 S.W.3d 640, 642 (Tex.
Crim. App. 2002). It is not enough for a defendant to show that the errors, if
any, had some conceivable effect on the outcome of the proceeding.
Strickland, 466 U.S. at 687; Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim.
App. 2001). Rather, this stringent burden requires that he point to objective
7 facts in the record to support lack of confidence in the conviction, i.e. proof
of prejudice. Bone v. State, 77 S.W.3d 828, 837 (Tex. Crim. App. 2002).
Failure to make either one of these required showings defeats an
ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.
App. 2009) (“An appellant’s failure to satisfy one prong of the Strickland test
negates a court’s need to consider the other prong.”).
In reviewing counsel’s performance, appellate courts should look at
the totality of the representation to determine the effectiveness of counsel,
indulging a strong presumption that the attorney’s performance falls within
the wide range of reasonable professional assistance or trial strategy.
Thompson v. State, 9 S.W.3d 808 at 813 (Tex. Crim. App. 1999). A claim of
ineffective assistance must be firmly supported in the record. Id.
Defense Counsel’s Strategy was Based on Extensive Investigation and Preparation for Trial
The trial court heard extensive testimony at the hearing on appellant’s
motion for new trial, all if it from appellant’s trial counsel, John Floyd.
Appellant had hired Floyd after the performance by his previous trial
attorney, Abraham Fisch, resulted in appellant’s conviction for both injury to
8 a child and aggravated sexual assault (RR16-164, 215).2 Floyd testified at
the motion for new trial hearing regarding his trial preparation, his strategy
for what evidence to present, what cross-examination to conduct, and what
defensive theory he decided to pursue (RR14 –RR16).
Floyd explained that he was a board certified criminal defense lawyer
with close to 20 years of criminal law experience (RR13 15-16). Floyd had
tried 40 to 50 trials, including several sexual crimes (RR13 16). Appellant
had been a client of his for approximately a year and a half by the time of
trial (RR13 17, 21). During that time, Floyd conducted extensive
investigation and preparation for appellant’s case, enlisting the assistance of
two other attorneys, a paralegal, and an investigative service (See State’s
MNT Exhibit No. 1, RR16 168). The investigative firm hired by Floyd
conducted at least 23 audio interviews of potential witnesses. Among those
interviewed were appellant, Joanna Briones, Ashley Rodriguez, Vielka Castro
and her family, Christina Gonzales, Jonathan Briones, Destinee Briones,
2 The jury in this first trial assessed punishment at a 10 year probated sentence for the injury to a child case and 7 years in the Institutional Division of the Texas Department of Criminal Justice for the aggravated sexual assault charge (RR16-164). Fisch filed a motion for new trial, which was granted on the basis that the jury received an exhibit which had not been introduced into evidence (CR 21-24) With Floyd representing him, appellant was actually acquitted of the aggravated sexual assault charges, but was sentenced to twenty years on the indecency with a child case (RR- RR9 8, RR10 190-191). Presumably unhappy with this result, appellant returned to his first attorney, Abraham Fisch, who filed a motion for new trial on the basis of ineffective assistance of counsel (RR16 160).
9 Katrina and Victor Pena, Kayla Darilek, the pastor of the church the family
attended, and the jury foreman from appellant’s previous trial (State’s MNT
Exhibit No. 1). That last interview proved quite useful, as Floyd was able to
determine what witnesses the prior jury had found to be unhelpful, or even
harmful to the defense (RR16 191, 228). After considering multiple
defensive theories, Floyd decided that the best way to proceed was to limit
presentation of evidence and focus on the fact that the State had not proven
its case beyond a reasonable doubt (RR16 191-192).
Decision not to Call Multiple Witnesses for the Defense
Appellant argues that his trial counsel was ineffective for failing to call
certain witnesses, particularly Joanna Briones, appellant’s wife, Ashley
Rodriguez, appellant’s step-daughter, and Johnathan and Destinee Briones,
appellant’s children.
Contrary to appellant’s assertions, none of these individuals were
witnesses to the actual offense, and could not contradict Lisa as to anything
that happened the night in question, partly because nobody knew when that
night in question was. Hale v. State, 140 S.W.3d 381 (Tex. App.—Fort Worth
2004, pet. ref'd) (not ineffective assistance when potential witnesses had no
personal information concerning accusations). In addition, defense counsel
had learned that the jurors from the previous trial found appellant’s family
10 members to be ineffectual and, because of the closeness of their relationship
with appellant, unbelievable witnesses (RR13 67). Most importantly, defense
counsel was concerned about “extraneous kinds of personal character issues
that I was afraid might be opened, no matter how well intentioned and well
coached the witnesses were” (RR13 68).
Trial Court was legitimately concerned that if these witnesses testified,
their testimony could prove harmful (RR16-206). For example, Floyd was
aware that the State had in its file an offense report where Joanna Briones
called the police on appellant at a time very close to when the offense
occurred and that this offense did not show appellant in a positive light
(RR16 207). There was also evidence that Ashley Rodriguez had made an
outcry regarding appellant inappropriately touching her, and that Joanna
was aware of that allegation (RR16 208).
Appellant also criticizes defense counsel for not calling Lisa’s treating
psychologist who could testify about Lisa’s drug use and poor relationship
with her father. Appellant, however, fails to mention that this witness was
retired and living outside the jurisdiction of the court (RR16 174-175). In
addition, defense counsel had talked to this witness; she was very hostile to
the defense, believed the sexual abuse had occurred, and would have
11 indicated that Lisa’s behaviors were likely the result of this abuse (RR16
178-180).
Defense counsel also gave legitimate strategic reasons for not calling
Officer Munez, the officer who took the initial report from Lisa’s parents, and
Dr. Piece, an expert hired to examine the medical records for evidence of
sexual abuse. Counsel explained that he avoided calling Munoz because the
officer clearly wanted to help the state, and was willing to say that any
inaccuracies in his initial report could have been due to his mistake in taking
down the information (RR13 198). Dr. Pierce also did not appear to be a
favorable witness, as he indicated to trial counsel that there was evidence in
Lisa’s medical records which would lead him to believe that sexual abuse had
occurred (RR113 132).
In short, the trial court did not abuse it’s discretion in determining that
trial counsel had a legitimate trial strategy for not calling any witnesses at
the guilt/innocence stage of trial. Instead of presenting all these witnesses,
the defense decided the best trial strategy was to argue that the State did not
make its case.3 When in counsel's reasonable judgment, a potential witness
3 This strategy was apparent in trial counsel’s closing argument, where he explained to the jury that “we chose to shut it down because the State didn’t make their case.” (RR8 25).
12 may be as dangerous as he or she might be helpful, it is not ineffective
assistance of counsel not to call the witness to the stand. Damian v. State,
881 S.W.2d 102, 110 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd).
Decision not to Impeach
Appellant also contends that trial counsel was ineffective for failing to
challenge Lisa’s credibility. Floyd explained that he extensively cross-
examined Lisa, but that she did not make any major contradictions to her
previous statements or testimony (RR16-194). Floyd and his staff had
reviewed the transcript from the previous trial and were ready to address
any inconsistences, but he did not feel it was effective to impeach Lisa with a
transcript from the previous trial for small matters which did not go to the
heart of the case (RR16 193-194). Instead, defense counsel was trying to
build a rapport with the jury and his own credibility (RR16 193). The trial
court, in denying appellant’ motion for new trial, found that this decision not
to impeach witnesses on minor discrepancies was due to trial strategy, and
that such strategy had a plausible basis in the record (RR17 13).
The trial court ruled correctly on this issue. The decision not to
impeach, particularly on minor matters, can be part of a reasonable strategy.
See Davis v. State, 276 S.W.3d 491, 502 (Tex. App.–Waco 2008, pet. ref'd)
(recognizing counsel’s decision not to impeach witnesses may be “sound
13 trial strategy.”) The fact that appellant was convicted (just was he was in the
first trial), does not mean that this strategy was deficient. See Ex parte
Ewing, 570 S.W.2d 941, 944 (Tex. Crim. App. 1978) (“The fact that another
attorney may have pursued a different tactical course of trial is insufficient
to support a finding of ineffective assistance of counsel.”). Sims v. State, 807
S.W.2d 618, 624 (Tex. App.–Dallas 1991, pet. ref'd) (“[W]e cannot say that
failure to attempt impeachment was not sound trial strategy.”); Harris v.
State, No. 01–88–00991–CR, 1990 WL 39468, at *4 (Tex. App.–Houston [1st
Dist.] Apr. 5, 1990, pet. ref'd) (not designated for publication) (holding that
failure to bring up inconsistent testimony and impeach witness may be
sound trial strategy, because attempting to impeach may have been “more
harmful” than beneficial to appellant). Davis v. State, 276 S.W.3d 491, 502
(Tex. App. – Waco, pet. ref’d) (finding that the decision not to impeach
witnesses on deals they made with the State sound trial strategy).
Decision not to Call Other Witnesses to Present Mitigation Testimony at Punishment
Finally, defense counsel presented very viable reasons for why he did
not call additional witnesses other than appellant’s sister, Oralia Schmidt, at
the punishment stage of trial. Defense counsel explained that he had access
to the State’s file, and was able to determine that the State was prepared to
14 attack the credibility of several potential witnesses, most notably appellant’s
wife and stepdaughter (RR10 160). The State also had evidence of other
bad conduct that it was just waiting for a chance to introduce. Ms. Schmidt,
however, was not aware of most of this conduct, so the prosecutor was not
able to question her about it (RR10 161).
For example, appellant suggests that defense counsel could have called
appellant’s previous employers, as he worked as a bailiff in several courts.
Defense counsel, however, explained that the letters of commendation
regarding appellant’s work history as a bailiff were invalidated by more
recent letters reprimanding appellant for his work history, leaving defense
counsel to believe that it was better to avoid delving into appellant’s work
performance in detail (RR16 196-197).
As mentioned earlier, the decision whether to present witnesses is
largely a matter of trial strategy. Shanklin v. State, 190 S.W.3d 154, 164 (Tex.
App.—Houston [1st Dist.] 2005, pet. dism’d). “Moreover, an attorney’s
decision not to present particular witnesses at the punishment stage may be
a strategically sound decision if the attorney bases it on a determination that
the testimony of the witnesses may be harmful, rather than helpful, to the
defendant.” Id. (citing Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.—
Houston [14th Dist.] 1989, pet. ref’d)). The trial court correctly found that
15 trial counsel made a strategic decision not to call more than one character
witnesses at the punishment stage of trial and was not ineffective (RR17 12-
13).4
In short, defense counsel established through his testimony at the
motion for new trial hearing that he thoroughly prepared for this trial. The
trial court found that each decision trial counsel made was a strategic one
calculated to help appellant’s case. Trial counsel’s trial strategy, which
resulted in appellant’s acquittal in the more serious offense with which was
charged, was to present minimal evidence, not antagonize the jury, and
prevent damaging testimony from coming in. The trial court did not abuse
its discretion in finding that these strategic decisions were reasonable and
that trial counsel rendered effective assistance of counsel. See Strickland,
466 U.S. at 689. Appellant’s three issues are without merit, and the
judgement should be affirmed.
4 The trial court also found that appellant failed to establish that there was a reasonable probability that, but for trial counsel’s alleged errors, the results of the proceedings would have been different in either the guilt/innocence or punishment phases (RR17 15). In other words, appellant failed to prove either prong of the Strickland ineffective assistance of counsel test. 16 PRAYER
The State respectfully requests that this Court affirm the judgment of
the trial court.
/s/Kimberly Aperauch Stelter
KIMBERLY APERAUCH STELTER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 State Bar Number: 19141400 stelter_kimberly@dao.hctx.net
17 CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument is being
served by EFileTXCourts.Gov e-filer to the following email address
Daucie Schindler Assistant Public Defender 1201 Franklin, 13th Floor Houston, Texas 77002 Daucie.Schindler@pdo.hctx.net
KIMBERLY APERAUCH STELTER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 274-5826 State Bar Number: 19141400 stelter_kimberly@dao.hctx.net
18 CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated
document has a word count of 4,374 words, based upon the representation
provided by the word processing program that was used to create the
document.
KIMBERLY APERAUCH STELTER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 274-5826 TBC No. 19141400 stelter_kimberly@dao.hctx.net