Tawater, Royce William v. State

Opinion

oo+is ORIGINAL CAUSE NUMBER: PD-0004-15

IN THE COURT OF CRIMINAL

APPEALS OF TEXAS

ROYCE WILLIAM TAWATER, WUR' ^ L«AL APPEALS Petitioner, MAR 16 2Q15 vs.

THE STATE OF TEXAS, Abe( ^ ^ ^ Respondent.

Seeking Review of the Sixth District Court of Appeals' Judgement and Opinion in Cause No: 06-14-00075-CR.

FILED IN PETITION FOR DISCRETIONARY REVIEW CRIMINAL APPEALS MAR 20 2015

Abel Acosta, Clerk Oral Argument is Requested

Royce W. Tawater, Pro Se TDCJ-CID #1950643 Beto Unit 1391 FM 3328 Tennessee Colony, Texas 75880

(CCA) A (~ A <--'-l r

fit TABLE OF CONTENTS

Page

I. IDENTITY OF PARTIES AND COUNSEL ii

III. INDEX OF AUTHORITIES II IV. STATEMENT REGARDING ORAL ARGUMENTS 1

V. STATEMENT OF THE CASE 1

VI. STATEMENT OF PROCEDURAL HISTORY 2

VII. GROUNDS FOR REVIEW 2

The court of appeals erred in determining that there was sufficient evidence to support the fact that Petitioner had actual care, custody and control of a firearm.

The court of appeals erred in determining that trial counsel's strategy was so effective as to result in only one conviction in four charges VIII. ARGUMENT 2

UNSWORN DECLARATION 5

CERTIFICATE OF SERVICE 5

APPENDIX

(Petitioner has no extra copy of the Sixth Court of Appeals' Opinion and Judgement.)

-l- II.

IDENTITIES OF PARTIES AND COUNSEL

ROYCE WILLIAM TAWATER PETITIONER

DAVID COUCH TRIAL COUNSEL 2815 Wesley St.; P.O. Box 324 Greenville, TX 75403

KATHERINE FERGUSON APPELLATE COUNSEL 2900 Lee St., Ste. 102 Greenville, TX 75403

STEPHEN B. LILLEY PROSECUTOR

HONORABLE RICHARD A. BEACOM, Jr. TRIAL JUDGE

III.

INDEX OF AUTHORITIES

Page HUTCHINS v. STATE, 333S.W.3d 917 (Tex. App.-Texarkana 2011) 3

NGUYEN v. STATE, 54 S.W.3d 49 (Tex. App. Texarkana 2001) 3

JAMES v. STATE, 264 S.W. 3d 215 (Tex. App.-Houston [1st Dist] 2008) 3

BATES v. STATE, 155 S.W.3d 212 (Tex. App.-Dallas 2004) 3

CLARK v. PROCUNIER, 755 F.2d 394 (5th Cir. 1985) 3

NEAL v. PUCKETT, 286 F.3d 230 (5th Cir.O 3

CANNON v. STATE, 252 S.W.3d 342 (Tex. Crim. App. 2008) 4

THOMPSON v. STATE, 9 S.W.2d 504 (Tex. Crim. App. 1985) 4

PENAL CODE 46.04(a)(1)

-li TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS:

COMES NOW, ROYCE WILLIAM TAWATER, "Petitioner" pro se in the above-mentioned cause number and files, pursuant to Tex. R. App. Proc, 68, this Petition For Dis cretionary Review, and for such Petitioner would show this Court as follows:

IV.

STATEMENT REGARDING ORAL ARGUMENT

This petition challanges the court of appeals' holding that there was sufficient evidence to support the jury finding of guilt on the charqe of unlawful possession of a firearm by a felon, and; trial counsel was not ineffective for failing to object to the admission of a certified copy of a prior conviction. These types of arguments appear to be improper in light of prior decisions from this Court. These are important issues of law because these types of arguments are frequently appearing in appellate decisions from the various courts of appeal and the bench and bar of this Court need clarification from this Court concerning whether these types of arquments are appropriate. Therefore, this Court should qrant oral argument so that counsel for both sides may more fully present their positions and answer any questions this Court may have after preliminarily reviewing this case.

V.

STATEMENT OF THE CASE

Petitioner was charged with the offense of unlawful possession of a firearm by a felon. (CR: 1) Petitioner was also charged with the offenses of aqgravated assault with a deadly weapon, (#29,310), deadly conduct discharge firearm, (#29,311), and aggravated assault with a deadly weapon, (#29,502) The cases were tried tog ether. A jury was selected, seated and sworn and the cases were tried on Petition er's plea of "Not Guilty." Subsequently, Petitioner was found guilty of the firearm possession in Case No: 29,503. The jury was unable to reach a decision on the other three charges and a mistrial was directed. The jury then considered punish ment evidence and sentenced Petitioner to twenty (20) years' confinement in the TDCJ-CID, and imposed a fine of ten thousand dollars. After the trial court found Petitioner to be indigent, appellate counsel was appointed to prosecute the appeal. On appeal, counsel claimed, inter alia, that the evidence was insufficient to prove Petitioner was guilty of unlawful possession of a firearm by a felon, and; trial counsel was ineffective in failing to object to the admission of a certified copy of conviction in Case No: 28,515. The court of appeals opined that the testimony of Joe Vega and the Complainant verifying that they saw Petitioner with a firearm; that Petitioner had the same caliber of bullets in his pocket at the time of arrest; that Petitioner had gunshot residue on his hands; that the two Vega brothers saw Petitioner throw something in an area where a firearm was found, and; that Petitioner to the detective that

he had fired a rifle earlier that morning, was sufficient to sustain a conviction of unlawful possession of a firearm by a felon. Further, the court of appeals determined that trial counsel, by not objecting to the prior felony conviction, had a reasonable trial strategy in not doing so; that counsel's strategy was suc cessful simply because the jury could not reach a verdict on the other three charges.

VI.

STATEMENT OF PROCEDURAL HISTORY

Petitioner is unable to cite any part of the Clerk or Reporter's Record because, even though asked for, appellate counsel has failed to transmit a copy of those records, and the Brief of Appellant, (in #29,310 & #29,311), to Petitioner. The Sixth Appellate District of Texas at Texarkana issued its Memorandum Op inion and Judqement on December 10, 2014. Subsequently, Petitioner, pro se, req uested an additional sixty (60) days within which to file a pro se petition for discretionary review, and;requested leave to file the original copy only of the petition. Both motions were granted on January 7, 2015; making the deadline to file the petition on or before March 10, 2015. This petition is timely filed. (No petition for a rehearing was submitted.)

VII.

GROUNDS FOR REVIEW

The court of appeals erred in determining that there was sufficient evidence to support the fact that Petitioner had actual care, custody and control of the firearm in question Further, the court of appeals erred in determining that counsel's strategy was so effective as to result in only one conviction in four charges.

VIII.

ARGUMENT

The court of appeals held that "[They] were not required to determine whether [they] believe that the evidence at trial established guilt beyond a reasonable

_3~_ doubt; rather, when faced with conflicting evidence, [they] must presume that the trier of fact resolved any such conflict in favor of the prosecution, and [they] must defer to that resolution." HUTCHINGS v. STATE, 333 S.W.W3d 917, 919-20 (Tex.. App.-Texarkana 2011) The court qoes on to further cite the fact that the penal code requires a defendant to "possess a firearm." (Penal Code 46.04(a)(1); NGUYEN v. STATE, 54 S.W.3d 49, 52 (Tex. App.-Texarkana 2001) This is in direct contrast to the First District Court of Appeals, Houston, (JAMES v. STATE, 264 S.W.3d 215, 218-19 (Tex. App.-Houston [1st Dist.] 2008)) and the Fifth District Court of Appeals, (BATES v. STATE, 155 S.W.3d 212, 216-17 (Tex. App.-Dallas, 2004))in that "If the evidence, viewed in the light most favorable to the verdict, gives equal or nearly equal support to theories of innocence and guilt, the evidence is insufficient. (See: CLARK v. PROCUNIER, 755 F.2d 394, 395 (5th Cir. 1985)) Here, the issue is whether the firearm was found "on the defendant" or was "in his exclusive possession." Further, whether the evidence affirmatively linked Petitioner to the firearm found in a public place. The Sixth Court of Appeals usurped the jury in that the appellate court delved into a witness' testimony who, admittedly, was high on an illegal substance. This same witness testified at a subsequent proceeding that he had lied on a sworn affidavit to police concerning the events in question. The court of appeals "••«presume[d] that the trier of fact resolved [this] conflict in favor of the prosecution, and Tthey] must defer to that resolution." (HUTCHINS, supra 0919-20) The fact is, the jury never had this information in order to "resolve [the] conflict in favor of the prosecution." The court of appeals erred by placing themselves in the jury box to determine the weight of the evidence, and to deem that evidence to support a conviction for possession of a firearm. Addressinq appellate counsel's second point of error, the court of appeals applied the STRICKLAND Test; performance and prejudice. Counsel argued that trial counsel failed to object to the state proffering a certified copy of a Judgement of Conviction in a prior felony; deficient performance. Counsel argues on appeal that without authenticating the document, trial counsel allowed the jury to more severely punish Petitioner; harm. In the court of appeals Opinion, they determined that the Strickland Test failed because both.parts of the test were not satisfied. Specifcally, trial counsel's strateqy for not focusing the jury's attention on the prior felony was a sound choice, and; since trial counsel's strategy was sound, it resulted in only one conviction in four. In assessing deficient performance, courts "must determine whether there is a gap between what counsel actually did and what a reasonable attorney would have done under the circumstances." NEAL v. PUCKETT 286 F.3d 230, 236 (5th Cir. en banc) In the instant case, a reasonable

-3- attorney would have defended the not guilty plea by preventing the prior felony from the jury's perusal until the state actually authenticated the document they presented; a document presented only through the state's "testimony." Petitioner had a right to subject the prosecutor's case in a meaningful adversarial testing." CANNON v. STATE 252 S.W. 3d 342, 349 (Tex. Crim. App. 2008) Without hearing about an alleged prior felony, the jury would have been left with a doubt concerning the language of the statute that the state prove that a conviction occurred; an essen tial element of the offense. In THOMPSON v. STATE, 9 S.W.3d 808, 817 (Tex. Crim. App. 1999), this Court noted that "while this Court has been hesitant to designate any error as per se ineffective assistance as a matter of law, it's possible that a single egregious error of ommission or commission by appellant's counsel constitut es ineffective assistance of counsel." (citing JACKSON v. STATE 766 S.W.2d 504, 508 (Tex. Crim. App. 1985) To prove prejudice, Petitioner need only prove that "there is a reasonable probability that, but for counsel's unprofessional erors, the results of the proceeding would have been different." Strickland, @694ln the instant case, prejudice became so likely that the prejudice aspect of the Strickland Test is satisfied. (See: UNITED STATE v. CRONIC, 446, U.S. 648, 658-59 (1984)

WHEREFORE, PREMESIS CONSIDERED, Petitioner prays this Court grant this Petition For Discretionary Review, order a full briefing on the issues presented herein, and after considering the merits, reverse the judgement of the court of appeals, remand this cause to the trial court for a new trial, and grant such other and further relief as Petitioner may show himself deserving, at law and in equity.

Respectfully submitted,\

Royce W. Tawacer,

Pro Se

C.c. Tex. Attny. Gen

file/rwt

_ 4_ UNSWORN DECLARATION

"I, Royce W. Tawater, TDCJ-CID #195 0643, being presently incarcerated in the Beto Unit of the TDCJ-CID, declare under penalty of perjury that the above and foregoing are both true and correct."

Executed on this the 9th day of March, 2015

Royce W- Tawater

CERTIFICATE OF SERVICE

This is to further certify that I have mailed a true and correct copy of this Petition For Discretionary Review to the Texas Attorney General, P.O. Box 12548, Austin, TX 78711-2548, by First Class Mail, postage prepaid by placing same in the Beto Unit's mail drop-box, designed for that purpose, on this the 9th day of March, 2015.

Royce W. Tawater

TDCJ-CID 31950643

Beto Unit

1391 FM 3328

Tennessee Colony, TX 75880

C.c. file/rwt

t? " In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-14-00075-CR

ROYCE WILLIAM TAWATER, Appellant

THE STATE OF TEXAS, Appellee

On Appeal from the 354th District Court Hunt County, Texas Trial Court No. 29,503

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

Odis McCrary, a drug dealer and a long-time friend of Royce William Tawater,

successfully avoided being hit when Tawater shot at him multiple times in the vicinity of

McCrary's Hunt County house in mid-2013. In the aftermath of the shooting, McCrary initially

told police that the two had argued about some tennis shoes, but later admitted the argument was

about drugs and money.

As a result of the incident, Tawater was charged and convicted for unlawful possession of

a firearm by a felon. See Tex. Penal Code Ann. § 46.04(a) (West 2011). On appeal, Tawater

argues, first, that the evidence was insufficient to prove, at the time of the event, Tawater's status

as a convicted felon or his possession of a firearm and, second, that his trial counsel was

constitutionally ineffective.1 We affirm the judgment of the trial court because (1) sufficient

evidence supports the findings that, at the time in question, Tawater was a convicted felon and

possessed a firearm and (2) ineffective assistance of counsel has not been established.

(I) Sufficient Evidence Supports the Findings that, at the Time in Question, Tawater Was a Convicted Felon and Possessed a Firearm

Tawater challenges the sufficiency of the evidence to support the jury findings that, at the

time of the events leading to the allegations, he was a convicted felon and possessed a firearm.

In reviewing the sufficiency of the evidence, we consider the evidence in the light most favorable

to the verdict to determine whether any rational trier of fact could have found the essential

'Tawater stood accused in four indictments; the other three charges were two allegations of aggravated assault with a deadly weapon and one of deadly conduct. After the jury was unable to reach unanimous verdicts on those three charges, mistrials were declared on them. On retrial of two of those charges, Tawater was convicted of one charge of aggravated assault with a deadly weapon and one of deadly conduct. Appeals of those two convictions are pending beforethis Court in cause numbers 06-14-00094-CR and 06-14-00095-CR. elements of the crime beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex.

Crim. App. 2003). We must give deference to "the responsibility of the trier of fact to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "We are not required to determine whether

we believe that the evidence at trial established guilt beyond a reasonable doubt; rather, when

faced with conflicting evidence, we must presume that the trier of fact resolved any such conflict

in favor of the prosecution, and we must defer to that resolution." Hutchings v. State, 333

S.W.3d 917, 919-20 (Tex. App.—Texarkana 2011, pet. ref d) (citing Turro v. State, 867 S.W.2d

43, 47 (Tex. Crim. App. 1993).

The sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). To prove unlawful possession of a firearm by a felon, the State was required to prove that

Tawater (1) possessed a firearm (2) "after conviction and before the fifth anniversary of [his]

release from confinement following conviction of the felony or [his] release from supervision

under community supervision, parole, or mandatory supervision, whichever date is later." TEX.

PENAL CODE Ann. § 46.04(a)(1). "[T]o support a conviction for possession of a firearm, the

State must show (1) that the accused exercised actual care, control, or custody of the firearm,

(2) that he was conscious of his connection with it, and (3) that he possessed the firearm

knowingly or intentionally." Nguyen v. State, 54 S.W.3d 49, 52 (Tex. App.—Texarkana 2001, pet. ref d), overruled on other grounds by Fagan v. State, 362 S.W.3d 796, 800 (Tex. App.—

Texarkana 2012, pet. ref d).

Tawater, McCrary's friend of several years, came by McCrary's home the morning of

July 1, 2013. McCrary reported that Tawater was in a bad mood. McCrary, who admitted to

being a dealer of illegal drugs, believed Tawater was under the influence of drugs. Tawater

showed McCrary a pistol, which Tawater said he was "trying to get rid of; McCrary took this as

an offer to sell the gun and asked how much Tawater wanted. Instead, Tawater said he would

keep the gun, which he "might need."

Later that day, Tawater returned to McCrary's home, looking for one of the people that

lived with McCrary. McCrary said Tawater intended to fight this third person, but that he tried

to talk Tawater out of this confrontation. This led to an argument between McCrary and

Tawater, who then pulled a pistol,2 the same gun Tawater had displayed earlier in the day. Tawater fired at McCrary, who ran around the house. Tawater pursued him and fired more shots

at him. At some point, McCrary stopped in front of a house where some people asked if he was

all right. Then Tawater ran past McCrary, and McCrary saw that Tawater no longer had the gun.

Soon thereafter, police arrived on the scene.

McCrary admitted that he had sold illegal drugs, that he had multiple convictions (some

for drug charges), and that he was under indictment for aggravated robbery. McCrary also felt

he was taking a risk by testifying at Tawater's trial.

2McCrary admitted he was "high on Xanax" during the altercation. 4 Joe Vega testified that he saw McCrary and Tawater's argument outside his (Vega's)

home. Vega heard gunshots and came out to the porch where he saw Tawater, first, waving a

pistol and, then, throwing it over a fence. Vega's brother, Manuel, also witnessed part of the

argument and saw Tawater throw something over the fence.

When police arrived, both Vega brothers indicated where they had seen Tawater throw

something and that it may have been a gun. Police eventually found a disassembled .22 caliber

revolver in the bushes where witnesses indicated. On his person, Tawater had a box with thirty-

eight .22 caliber rounds, and two other bullets loose in another pocket; he also wore an empty

shoulder holster. The spent rounds in the revolver, and at least two shell casings found in the

street where the argument had been, all showed to have been fired from the pistol police found in

the bushes. Officers were also hailed by a Hispanic man in the area who produced a spent bullet,

which he said had come through at least one of his walls and hit him in his home. This bullet

was fired from a .22 caliber weapon, but due to deformities and damage to the bullet, it could not

conclusively be said to have been fired from the revolver recovered at the scene.

Tawater was arrested at the scene for possession of drug paraphernalia. In the few hours

after this, Detective Jamie Fuller swabbed Tawater's hands for gunshot residue. Tawater told

Fuller that, earlier in the morning, he had fired a .22 rifle, so he might have residue on his

Vincente Paulin, the man hit by the stray bullet, testified through an interpreter. He said he was in his home, heard an explosion, and realized he was hurt and bleeding (photographs were introduced ofwounds to the side of his chest and inside his elbow). He said he looked down and sawa piece of metal, which his brother-in-law said was a piece of bullet. Paulin said he gave this bullet to police. However, the police who met with Paulin at the scene said they saw him pull the bullet from his side.

5 hands.4 Fuller took the swabs about 7:00 p.m., and Tawater said he had fired this rifle "early" that morning. The State, though, presented testimony from David Spence, a firearms expert for

the Southwestern Institute of Forensic Sciences, who said it was "unlikely" gunshot residue

would stay on a person's hands eight-to-nine hours after firing a weapon. Spence testified that

sufficient particles of the relevant chemicals were found on the palms and back of both of

Tawater's hands consistent with the presence of gunshot residue.

While Tawater did not testify, in the recorded interview played by the State, he denied

having a gun during the confrontation with McCrary. Tawater stated that McCrary and others

had guns and chased him, because a drug dealer named "Big" had unfairly put "a hit" on

Tawater. Tawater stated that McCrary chased him on foot, but that two other men got in a gold

Chevrolet SUV and chased Tawater.

In his defensive case, Tawater called one witness, Jason Cooke, who said he had been on

his brother's porch with McCrary and a few other people when Tawater was seen walking up the

street. According to Cooke, McCrary offered Cooke $50.00 to go "whup" Tawater or "try to lay

him out." Cooke declined this offer and went in the house. When Cooke looked outside, he said

Tawater was surrounded by McCrary and two other men. A short time later, while inside, Cooke

said he heard gunshots and saw McCrary chasing Tawater. Cooke said he never saw Tawater

with a gun. He also said he saw some men get in a gold Chevrolet Blazer and chase a running

Tawater. Cooke said that the police never contacted him as a witness and that his trial testimony

was the first time he had presented his view of events.

4Tawater's interview with Fuller was presented in a video-recorded exhibit that was played for thejury. 5Under cross-examination, Cooke told the State he was "Big J," but denied having put a hit on Tawater. Tawater offered no objection when the State introduced a judgment of conviction dated

January 9, 2013, for the offense of burglary of a building. See TEX. PENAL CODE ANN.

§ 30.02(a), (c)(1) (West 2011) (state jail felony). Nowhere in cross-examining the State's

witnesses or presentation of his defense did Tawater challenge his status as a convicted felon.

Near the end of a recorded interview with Detective Fuller, Tawater admitted, "I'm a felon." In

closing arguments, Tawater's counsel said, "You know my client is a felon. Mr. Tawater is a

felon. The evidence is in —it's in the packet."

We addressed a somewhat similar situation in Hutchings v. State, 333 S.W.3d 917 (Tex.

App.—Texarkana 2011, pet. ref d). In a trial before the court, Hutchings offered no objection to

a certified judgment and conviction; Hutchings also admitted in open court to being the person

convicted in said judgment. Id. at 922. This was sufficient to prove Hutchings' status as a

felon. Id.; see also Thompson v. State, 563 S.W.2d 247, 251 (Tex. Crim. App. 1978) (where

State did not offer authenticated copies of judgment or indictment, but defendant made no

objection to district clerk and district attorney testifying to prior conviction, evidence "competent

and sufficient to prove the prior, final, noncapital felony conviction" used for punishment

enhancement).

Here, Tawater affirmatively indicated he did not object to admission of the felony

judgment and did not object to the portion of his recorded statement wherein he acknowledged

being a felon. The evidence was sufficient to establish that Tawater was a convicted felon at the

time of the alleged possession of a firearm.

6The indictment alleged anoffense date of July 1, 2013, within five years of the conviction shown on the judgment. 7 Likewise, there was sufficient evidence to show Tawater possessed a firearm. Joe Vega

and McCrary testified to seeing Tawater with a pistol. When arrested, Tawater wore an empty

shoulder holster and had several rounds of .22 ammunition in his pockets; a .22 pistol was found

in the area where the Vega brothers said they saw Tawater throw something. Tawater had

significant evidence of gunshot residue on his hands. Notwithstanding all this, he told Detective

Fuller he had shot a .22 rifle in the morning of the day of the events. As for evidence McCrary

had been the aggressor and Cooke's testimony he had not seen Tawater with a gun, the jury was

free to disbelieve that testimony. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App.

1994) ("The jury is the exclusive judge of the credibility of witnesses and of the weight to be

given their testimony."); Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)

("[Reconciliation of conflicts and contradictions in the evidence is within the exclusive province

of the jury.").

Tawater points to discrepancies in the evidence that McCrary gave inconsistent

statements about the parties' argument and that he wrote letters to the State and defense attorney

saying Tawater had not discharged a firearm with intent to harm McCrary.7 Tawater's fingerprints were also not found on the pistol. These factors, however, do not render the

evidence insufficient to support the finding that Tawater possessed the pistol at the time of the

offense. To the extent there were conflicts in testimony or alternative theories, the jury was

responsible for resolving any conflicts or inconsistencies in testimony.

'Detective Fuller also testified to the history of the pistol found by police. It had previously been reported stolen from Hopkins County; and, though McCrary denied ever owning the pistol, there was some possibility the suspect in that theft had given the gun to McCrary. There was no testimony about when this theft happened or what evidence supported the theory McCrary came into possession of the gun. None of that, however, undermines the evidence that Tawater possessed the pistol at the time of the offense. 8 Sufficient evidence supports both challenged jury findings.

(2) Ineffective Assistance of Counsel Has Not Been Established

Tawater claims his trial counsel was ineffective for failing to contest the use of Tawater's

prior conviction as evidence to establish his status as a felon. Tawater argues that the State, if

pressed on the matter, could not have shown that Tawater was the person previously convicted

and, thus, was unable to allow the use of the prior judgment as evidence against him. Instead,

trial counsel's response of "no objection" allowed use of the evidence that otherwise could have

been excluded.

To prevail on a claim of ineffective assistance of counsel, an appellant must show he

received ineffective assistance and that he was prejudiced by such representation. See Strickland

v. Washington, 466 U.S. 668, 687 (1984). The record must affirmatively demonstrate ineffective

assistance of counsel; a claim cannot "be built on retrospective speculation," but must be firmly

rooted in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).

First, Tawater must show that trial counsel's representation fell below an objective

standard of reasonableness. See Fox v. State, 175 S.W.3d 475, 485 (Tex. App.—Texarkana

2005, pet. ref d). We indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable, professional assistance and was motivated by sound trial strategy. See

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). "If counsel's reasons for his

conduct do not appear in the record and there is at least the possibility that the conduct could

have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an

ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). Failure to satisfy either of the Strickland prongs is fatal to a claim of ineffective

assistance. Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006).

While Tawater asserts that the State did not have evidence to prove that he was the

person convicted in the prior judgment, there is nothing to demonstrate that the State lacked such

evidence if pressed on the subject or that it could not have properly won a contest on the

admission of the prior conviction.

There is also nothing to show Tawater's trial counsel's reasoning in lodging no objection

to the admission of the prior conviction. No motion for new trial was filed, nor is there any

indication Tawater took any steps to secure testimony from his trial attorney to document

counsel's trial strategies or thinking behind his decisions. In this case, Tawater stood trial for

four indictments, two of which were allegations of aggravated assault with a deadly weapon.

The State had also alleged a prior conviction for enhancement purposes. It is true that Tawater

was assessed the highest possible sentence for unlawful possession of a firearm by a felon with

an enhanced penalty range—twenty years' imprisonment and a fine of $10,000.00. However,

8The record on direct appeal is frequently insufficiently developed to support a claim of ineffective assistance of counsel; the best way to make a sufficient record to supportsuch a claim is by a hearing on a motion for new trial or a hearing on a petition for habeas corpus. Jackson, 877 S.W.2d at 772-73 (Baird, J., concurring). When facing a silent record as to defense counsel's strategy, an appellate court will not speculate as to counsel's tactics or reasons for taking or not taking certain actions. Id. at 771. Because the trial record is directed to the issues of guilt/innocence and punishment (or in this case, punishment alone), an additional record focused specifically on the conduct of counsel, such as a record of a hearing on a motion for new trial asserting ineffective assistance of counsel, isgenerally needed. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 1994, pet. ref d). Only when '"counsel's ineffectiveness is so apparent from the record'" will an appellant prevail on direct appeal absent a hearing on a motion for new trial asserting an ineffective assistance of counsel claim. Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003) (quoting Massaro v. United States, 538 U.S. 500, 508 (2003)); Kemp, 892S.W.2datll5.

9Tawater pled"true" to the enhancement allegation. 10 the jury could not reach verdicts on three of the indictments, two of which (the enhanced

aggravated assaults) would have exposed Tawater to first degree punishment ranges.

Further, not objecting to the prior felony conviction could have been a reasonable trial

strategy. Trial counsel developed, through cross-examination of the State's witnesses and

presentation of Cooke, the possibility that McCrary and others had been the aggressors and

Tawater the victim in the confrontation. Counsel developed the theory that Tawater may not

have been in possession of a gun, although this was in direct contradiction of witness testimony

and Tawater's being in possession of an empty holster and several rounds of ammunition. Based

on the record as a whole, we must presume counsel had a reasonable and viable trial strategy,

and he was successful, to a degree, as Tawater was convicted of only one offense in this trial,

where he stood charged with four.

Tawater has failed to demonstrate that his trial counsel was ineffective.

We affirm the trial court's judgment.

Josh R. Morriss, III Chief Justice

Date Submitted: October 29, 2014 Date Decided: December 10,2014

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