PD-1364-17 PD-1364-17 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 3/9/2018 3:13 PM Accepted 3/9/2018 4:11 PM DEANA WILLIAMSON NO. --'------ CLERK

IN THE FILED COURT OF CRIMINAL APPEALS 3/9/2018 DEANA WILLIAMSON, CLERK COUR OF CRIMINAL APPEALS '

OF TEXAS

RICKY ALLEN DYISE, Appellant/Petitioner

VS.

T r STATE OF TEXAS, AppelleelRespondent

ON APPEAL ~ CAUSE NO. 05-J6-0J408-CR FROM THE FIFTI-f DISTRICT OF TEXAS AT DALLAS IN CtUSE NO. F16-54228-M

\ APPELLANT'S PETr,ION FOR DISCRETIONARY REVIEW

Juanita Bravo Edgecomb State Bar No: 24029529 Attorney for Appellant

, 306 Sixth St. Waxahachie, TX 75165 \ (972) &45-7131 (PH) (469) 342-8057 (fax) [email protected] \

L \

\ LIST OF PARTIES

APPELLANT Ricky Allen Dyise

APPELLEE The State of Texas

DEFENSE COUNSEL AT TRIAL Nicolas Que~ada \ Dallas County Public Defende 's Office 133 N. Riverfront Blvd, Dallas, TX 75207

TRIAL COURT JUDGE The Honorable Ernest White 194thDistrict Court of Dallas County, Texas 133 N. Riverfront Blvd, 7thFl. Dallas, TX 75207-4313 ,.

STATE'S ATTORNEY AT TRIAL Meredith Behg9f>Y Frank Crowley ICriminal .<1 Courts Building 133 N. Riverfront 'l Blvd Dallas, TX 752~7-4313 ")"

APPELLANT;S ATTORNEY\AT 5TH COURT OF APPEALS I Juanita Bravo Edgecomb • <

Attorney at Law s:

306 Sixth Street,. . /',

Waxahachie, Texas 'I, 75165 u STATE'S ATTORNEY ON A: PEAL Grace E. Shin '( \ Frank Crowley ,¥riminal Courts Building 133 N. Riverfront \. Blvd \ Dallas, TX 752Q7-4313 ~ , ;

'S 11 . , o ~';

"" STATE'S PROSECUTING ATTORNEY P. 0 Box 12405 Austin, Texas 78711

APPELLATE COURT JUDGES: The Honorable Francis, Evans and Boatright 5th Court of Appeals 600 Commerce St, Suite 200 Dallas, Texas 7?202

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( ,L

111 TiLE OF CONTENTS ..... IDENTITY OF PARTIES 11-111

TABLE OF CONTENTS .iv INDEX OF AUTHORITIES v STATEMENT REGARDING ORAL ARGUMENT 1 STATEMENT OF THE CASTL.~.~ 1 STATEMENT OF PROCED~~ HISTORY 2 GROUND FOR REVIEW NO 1 3

The Court of Appealf erred in reaching its conclusion that the Reco~~ was unc~ea~as to whet~er Appe~l~nt's t~ial c~unsel provided effective representation by failing to investigate Appellant's priors and \"opening the door" to extraneous offenses and/or}~ad character fvidenc~ wh~n t?e record clearly r~jlected that If served no pu~pose to mquire into Appellant's violent demeanor other than to prejudice Appellant's ability to present a j, "

defense.

PRAYER FOR ,gELIEF 13 CERTIFICATE OF SERVICE 14 APPENDIX A: '[COA Opinion] \ 15

S-, ;.

\ :

Ii lV INDEX OF AUTHORITIES

CASES:

Abnor v.State, 871 S.W.2d 726 (Tex. rim. App. 1994) 7

Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005) 7

Black v.State, . 816 S.W.2d 350 (Tex. crm. App. 1991) 5

Butler State,. v. I 716 S.W.2d 48 (Tex. Crir' App. 1986) 9

Cook v.State, I. 240 S.W.3d 906 (Tex. Cnim. App. 2007) 9

Doles v.State, 786 S.W.t~ 741 (Tex. App. - Tyler 1989, no pet.) 8 - . ...../

Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) 9

2 Garcia v. State, I 308 S.W.3d 62 (Tex. App\. - San Antonio, 2009) 7-8 "/

Hernandez v. State, I 726 S.W.2d 53 (Tex. Crim.. App. 1986) 5 j Jackson v. State; , 857 S.W.2d 678 (Tex. App. - Houston [14thDist.] 1993, pet. refd) 9 ~~I \

Mc Wherter v. St~te, \ th . 624 S.W}d 712 (Tex. App, -Houston [14 DISt.] 1981) 10 " ') \5

-, .), v

(I .. , {.:

Melgar v. State, 236 S.W.3d 302 (Tex. JPp - Houston [15tDist.] , 2007, pet. ref'd) 10

Nobles v. State, 843 S.W.2d 503 (Tex. lrim, App. 1992) 7

Powell v.State, 63 S.W.3d 435 (Tex. Cnm. App. 2001) 10

Robbins v. State, 88 S.W.3~ 256 (Tex. CfIlm. App. 2002) 10

Robertson v. State, 187 S.W.3d , 475 (Tex. C im. App. 2006) 7 -, .J Robertson v. State, 214 S.W.3d 665 (Tex. App. - Waco, 2007) 7 I

Stokes v. State, 298 S.W.3d 428 (Tex. A! p. - Houston [14thDist.] 2009, pet. ref'd) 9

Strickland v. Washington, 466 U.S ..?68 (1984) 5

Code TEX. CODE CRI~(PROC. ART 37p7, SEC. 3(g) 6 ~~ :. ~.

Statutes

TEX. CONST., ART. I § 10 5

U.S. CONST. VI.-: x .t: U.S. CONST. xry x " "

. , I 'I ~ VI \/ .

Rules TEX. R. EVID. 403 .. 10 "

TEX. R. EVID. 404( a) 1 10

TEX. R. EVID. 404(b) ; 10 :.! ", .

0-

i. j

Vll TO THE COURT OF cru1INAL APPEALS OF TEXAS:

AppellantlPetitioner respectfully submits this Petition for Discretionary

Review and moves that this H~norable Court grant review of this cause and offers

the following in support thereo1f:

STATEMENT REGARDING ORAL ARGUMENT

The AppellantlPetitioner requests oral argument in this case because such

argument may assist the Court in applying the facts to the issues raised. It is 1< suggested that oral argument may help simplify the facts and clarify the issues. ,L!' STAllEMENT OF THE CASE ) \/ ,

Appellant was convicted of ObstructionlRetaliation. Appellant was found : -,

guilty and subsequently assess1ed a punishment at ten (10) years imprisonment, rj'1 ~ suspended for six (6) years community supervision, and a $1,000 fine . '"-" . .

Iv ..

1 PROCEDURAL HISTORY I In Cause No. F 16-54228 the AppellantlPetitioner was charged with the I offense: Obstruction / Retaliation in the 194th District Court of Dallas County, the

Honorable Ernest White, preriding. The AppellantlPetitioner was convicted of

such offense on October 20, . do 16 and appealed the conviction. I On December 8, I 2017, the 5th Court of Appeals affirmed the conviction. No motion for rehearing

was filed. On February 20, 2018 this Petition for Discretionary Review was timely

forwarded to the Court of Appeals for filing pursuant to Rule 9.2(b), Texas Rules ,

of Appellate Procedure.

} .

" .J ••

2 GROI ND FOR REVIEW No.1

The Court of APpeals erred in reaching its conclusion that the Record was unclear as to whether Appellant's trial counsel provided effective! representation by failing to investigate Appellant's priors and "opening the door" to extraneous offenses and/or bad character \evidence when the record clearly reflected that it served no purpose to inquire into Appellant's violent demeanor other than to prejudice Appellant's ability to present a defense.

ARGUMENT NUMBER ONE

At trial, Appellant's trial counsel "opened the door" to extraneous offenses

which benefittes! the State to introduce Appellant's extensive criminal record. ,1 : Appellant's trial,. attorney, then failed to object to the introduction - of these

extraneous offenses, Defense counsel also admitted, on the record, that he failed to d. investigate the ~'tture of these extraneous offenses which again, "opened the door"

to bad character evidence. This failure allowed the State to paint Appellant as the

type of person who acted in conformity with the charged behavior and was /1. therefore more likely to have committed the charged offense. :d I No reasonably competent attorney would have "opened 'the door" to II extraneous offense in such circumstances unless the trial attorney was not familiar

with Appellant's criminal history. There could be no possible trial strategy for ; , r U

failing to investigate your own client's criminal history, particularly one on trial for " a Retaliation case coupled with a history of a violent past, and then asking him:

3

"",1 "do you consi~~r yourself in \any way, shape, or form a violent person?" (RR3:

161-164). Counsel's failure to investigate Appellant's criminal record fell below an

objective standard of reasonableness and likely prejudiced the outcome of

Appellant's trial.

The Fifth Court of Appeals rejected Appellant's ineffective assistance of

counsel claim because it argued rarely will the record "on direct appeal" be

developed to apoint that it can "adequately reflect the failings of trial counsel." : "- (Mem. Op. at * 5). Therefore, fhe Court reasoned that when direct evidence is not 1:',: available, it assumed counsel had a strategy, "if any reasonably sound strategic J~i motivation can be imagined." Id. The Court used this finding to dispose of

Appellant's claim of ineffective assistance of counsel, reasoning that "a silent l record" which: offers no explanation for trial counsel's strategy cannot be h !.."

"denounced as ineffective" because the record provides "no explanation for

counsel's actions or omissions." Id. at *5-6 . .,

Contrary to the Court of Appeals OpInIOn, the law and the record

demonstrate that, the Court of Appeals I should have reversed and remanded this ;

case for a new trial because (1) there can be no possible reasonable trial strategy I: , for "throwing your client under the bus" and (2) the record is clear there was no , objectively reasonable explanation for trial counsel's failure to investigate his own

4 to'

'.;

c, I client's criminalhistory and then concede he had erred in "opening the door" and

I then file a motion in limine to preclude the state from introducing the violent

criminal history, and then asklhis own client about the very evidence he attempted

to prevent the state from introducing. Trial counsel's actions constituted ineffective \

assistance of counsel.

A criminal defendant if entitled to effective representation at trial. U.S.

CONST.Amends' VI, XIV; TEX. CONST. Art. I §10. To establish an ineffective

assistance of gounsel claim, I a defendant must show that: (1) his counsel's lH representation fell below an objective standard of reasonableness; and (2) there is a

reasonable probability that, but for his counsel's unprofessional errors, the result of 1-'..\1 the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, U\ 1

689 (1984); Black v. State, 816 S.W.2d 350, 356 (Tex. Crim. App. 1991); ,;I , I Hernandez v. State, 726 S.W.2d 53-55 (Tex. Crim. App. 1986).

Under th~ first part of the Strickland test, deficient performance is , I ~" " ..•.

established by showing that counsel made errors so serious that counsel was not :,,'; I functioning as the "counsel guaranteed" by the Sixth Amendment. Strickland, 466 ,':1 U.S. at 687. Under the second part of the Strickland test, prejudice is established \\ by showing that counsel' s errors were so serious as to deprive the defendant of a , hi fair trial; i.e., that there is a reasonable probability that, but for counsel's I

5

"

1;1 unprofessional errors, the resu t of the proceeding would have been different. Id. at

694, 687. On direct appeal, t e question of whether Appellant's trial counsel was

ineffective focused on there being "no record" to establish trial counsel's strategy.

The Trial Record - Extraneous Offenses:

I) Prior to trial, the State dIed: "State's Notice ofIntent to Introduce Evidence

of Extraneous Offenses ursuant to Tex. R. Crim. Evid. 404(b), Tex. Code

Crim Proc. Art. 37.07, s c 3(g)." (CR: 37-40). , ~ , 2) Appellant's counsel ma e an "on record" argument referencing the State's 1('

Notice and filed his 0 In Motion in Limine asking that the State not be

allowed t~ go into App llant's prior convictions unless they approached.

(RR2: 4-5) (RR3: 6). 1'i

3) APpellan::s trial attomer was clearly aware of Appellant's priors: "the

officer who wrote the r port mentions that as one of the basis, I guess, '-, for his fear, which is so t of an element of the offense, he says that the : '.;

,. \

defendant has a prior vi lent history." (RR2: 5-6). i:~ 4) During the cross of the officer who wrote the report, Appellant's trial .'

counsel inquired into w y he "feared" Appellant. (RR3: 72-74). ~;i \

5) The Stat~:argued APpellJnt "opened the door" to extraneous offenses; the

court agr~ed; Appellant' trial counsel did not object, but merely stated:

6

..~( "Sure, I understand." ( 3: 72-74).

An accused may be tried only for the offense charged and not for some

collateral crime, or for being a criminal generally. Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992). he introduction of extraneous offenses to the jury is

inherently prejudicial and can harm a defendant because it requires the defendant

to defend against not only t e charged offense but also his uncharged actions.

Abnor v. State, 871 S.W.2d 72 , 738 (Tex. Crim. App. 1994). ~:1 Defense counsel can be held to be ineffective if there is no reasonable trial ':;:,l' _., ••...'

strategy for bringing inadmiss ble prior convictions to light. Garcia v. State, 308 ' .. S.W.3d 62, 68 (Tex. App. - Sa Antonio,2009). When there is no reasonable trial

strategy that canjustify trial c unsel's conduct, counsel's performance falls below h an objective standard of reaso ableness as a matter of law, regardless of whether "L; the record adequately reflects tr al counsel's subjective reasons for acting as he did. ':' ~.'.\

Andrews v. State, 159 S.W.3d 98, 101-102 (Tex. Crim. App. 2005); Robertson v. 1.-.( .

State, 187 S.W:3d 475 (Tex. Crim. App. 2006), reversed and remanded by !n ..! Robertson v. Stale, 214 S.W.3d 65 (Tex. App. - Waco, 2007).

There is no strategic value to allow admission of prejudicial and clearly

inadmissible e~idence. Roberts n v. State, 187 S.W.3d at 484-86 (holding that tft where defense depended on defendant's credibility, there was no possible

7 "

reasonable strategy and de nse counsel rendered deficient performance by

intentionally eliciting and op ning the door to otherwise inadmissible evidence);

See also Garcia v, State, 308 .W.3d at 68-69 (Tex. App. - San Antonio, 2009, no

pet.) (defense counsel opening door to extraneous offenses served no purpose other

than prejudicing defendant's ability to present a defense); Doles v. State, 786 S.W.2d 741,746 (Tex. App. - Tyler 1989, no pet.) (trial counsel's failure to make

objections to evidence of ext aneous offenses was ineffective assistance which

adversely affected appellant's ,e The Trial Record - Failure t i .

1) APpel1an~,~estified~n '" own behalf. ~Uring direct, his trial '"?" ~Sked him: "dO";OU consider 1urself to be In any way, shape, or form a VIOlent

person?" Appellant denie1dhe was a violent person. (RR3: 161). i.•.)

2) The State argued Appel ant "opened the door" to bad character evidence.Lc.. \ (RR3: 164, 171). . \....

3) APpel1an;:~ violent Pri0l came into evidence which included notice of a

protective-order issued ag inst Appellant. (RR3: 178-180). ,

4) Appellant's trial attorney argued he had not reviewed the protective order , . , prior to trial, although a opy was available for his view on Monday. (RR3: /\ 180-182).,

8 5) The trial court asked rial counsel: "any reason you didn't ask to see it

on Monday?" Trial co nsel replied: "No, your Honor." (RR3: 180-182).

An ineffective assistant e of counsel claim may be based on inadequate

performance during the investi ation or preparation of the case. Butler v. State, 716 S.W.2d 48, 54-57 (Tex. Crim. App. 1986); Jackson v. State, 857 S.W.2d 678, 683

(Tex. App. - Houston [14th Dist.] 1993, pet. ref d). However, a claim for

ineffective assistance based 0 trial counsel's general failure to investigate fails

absent a showing of what the investigation would have revealed that reasonably

could have changed the result of the case. Cook v. State, 240 S.W.3d 906, 912 ('{

(Tex. Crim. App. 2007); Sto es v. State, 298 S.W.3d 428, 432 (Tex. App. - :(1.

Houston [14th Dist.] 2009, pet. ref'd); See also Ex parte Harrington, 310 S.W.3d .' 452, 459 (Tex., Crim, App. 2 10) (counsel's failure to conduct even a cursory H investigation into a prior DWI onviction which was used to enhance to a felony ,)i DWI constituted deficient perfo ance). n ..

In this ca:~'e,trial counsel's error reasonably changed the result of the trial

given that the State was given tle opportunity to question Appellant about specific

instances of coriduct including t at a protective order existed, that he got into fights I

and interfered ~ith public dU) es. (RRJ: 183, 186). As such, trial counsel's \

representation can only be chara terized as ineffective. I

! . 9 The Trial Reco~d - Bad Ch racter Evidence:

1) Appellant's trial counse elicited the following exchange:

[COUNSEL]: I me n, do you - do you - do you consider yourself to be in any way, shap ,or form a violent person?

[DYISE]:/ I'm not a violent person.

(RR3: 161).

2) The State' argued Appe .lant "opened the door" to bad character evidence.

(RR3: 16-4;,171). " .

3) Appellant's violent prior came into evidence. (RR3: 178-180).

In general, evidence of pertinent character trait offered by an accused in a ~i': criminal case, or by the prosec tion to rebut the same, is admissible. Tex. R. Evid. ,;i 404(a)(1)(A). Texas law provides, "[e]vidence of other crimes, wrongs or acts is

not admissible to prove the ch racter of a person in order to show that he acted in

conformity ther~with. It may, Lwever, be admissible for other purposes, such as .,

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or ( absence of mistake or acciden ." TEX. R. EVID. 404(b). Despite its admissibility I ,L.

under Rule 404(b), or any other rule of evidence, "evidence may be excluded if its t probative value is substantially outweighed by the danger of unfair prejudice."

TEX.R. EVID.403. u The introduction of charadter evidence may be admissible when it is relevant

10 to a noncharactr,r conformity lact of consequence in the case, such as rebutting a

defensive theory. Robbins v,!tate, 88 S.W.3d 256, 259 (Tex. Crim. App. 2002);

Powell v. State,.63 S.W.3d 43 ,438 (Tex. Crim. App. 2001). Generally, character

evidence is not admissible t~ show that a person acted in conformity with a

character trait OI1l a particular d,ccasion. Tex. R. Evid. 404(a). However, an accused

in a criminal case is permitte to introduce evidence of a specific good-character

trait to show that it is improba le that he committed the charged offense, when that (,

character trait is'relevant to th offense. Id. A "pertinent character trait" relates to )

a trait involved" in the offense charged or a defense raised. Melgar v. State, 236 ~' ("

S.W.3d 302, 306-307 (Tex. Ap - Houston [1stDist.], 2007, pet. ref d). When the

the door may be opened to pro fby the prosecution that the accused's character is t actually bad. McWherter v. St te, 624 S.W.2d 712 (Tex. App. - Houston [14th

Dist.] 1981). s In a prosecution for a Cri[e of violence, the defendant's character for being

peaceful is pertinent, because evidence of peaceful character makes it less likely " :tj-' ,

that the defendant committed t e crime charged. Id. By asking Appellant if he

considered himself to be a "viol nt person" in a retaliation case was clearly a high

risk move especially when trial counsel admitted he did not investigate his prior

11 offenses. Trial counsel openel the door to the very evidence he tried to exclude in

his Motion in Limine. Once tppellant denied he was a violent person, the State

exploited the b~ character eridence and argued it was admissible to rebut any

defensive theory that Appell nt had "never before been in this much trouble."

(RR3: 177).

Appellant's trial counse fell below an objective standard of reasonableness

because he questioned the wit ess and his own client about his own client's priors

without conducting an invesigation into the priors and by inquiring into a

witnesses' fear:,When he kner what the answer would be. There could be no

possible strategy for the inqui unless you intend to prejudice your client to the \'

point that it prevents Appellant from receiving a fair trial and there is a reasonable

probability that, but for his tri I counsel's unprofessional errors, the result of the t: I proceeding would have been di 'ferent. s! Failing to investigate op hied the door to Appellant's prior violent criminal

record. Up to ~at point, the i1 had a mental picture of a homeless man who got

into an altercation with an offi er. This could have resulted in an acquittal rather I

than conviction."" f,'i., i

The Court of Appeals i properly concluded there was no explanation for

trial counsel's actions or omis ions, therefore he could not be "denounced as

12 .. ,

ineffective." Trial counsel admitted, on the record, he had "no reason" for his

failure to investigate and giv n his actions, there is no possible sound strategic

motivation which can be imag~ned but to prejudice Appellant. Appellant is entitled

to have his conviction reversed and his cause remanded for a new trial.

ph YER FOR RELIEF

For the reasons stated bove, it is respectfully submitted that the Court of

Criminal Appeals of Texas sho ld grant this Petition for Discretionary Review.

Respectfully submitted,

/S/ Juanita Bravo Edgecomb

Juanita Bravo Edgecomb .: \ State Bar Number: 24029529 ATTORNEY FOR APPELLANT

306 Sixth St. Waxahachie, Texas 75165 (972) 845-7137 (telephone) (469) 342-8057 (fax) [email protected]

13 CERT.FICATE OF COMPLIANCE

Pursuant to Texas Ru e of Appellate Procedure 9.4(i)(3), I certify that the

total number of words in the ocument, excluding those contents set out in the rule, I

is 2,255 words (including te tboxes, footnotes and endnotes), as computed by the

program used to prepare the ocument, Microsoft Word 2016.

/S/ Juanita Bravo Edgecomb

Juanita Bravo Edgecomb

The undersigned AppellantlPetitioner hereby certifies that a true and correct

copy of the foregoing Petitio I for Discretionary Review has been hand delivered

and e-served to the District A orney, Appellate Division, Frank Crowley Criminal

Courts Building, 133 N. Riv rfront Blvd., Dallas, TX 75207 and mailed to the

State Prosecuting Attorney, P. O. Box 12405, Austin, Texas 78711, on this the 8th

day of March, 2018.

/S/ Juanita Bravo Edgecomb

Juanita Bravo Edgecomb

14 A pendix

A [ATTACH COpy OF OPINION]

15 Affirmed as Modified and Opini n Filed December 8, 2017

In The Four! of j\ppeals lJ1iftl11!lstrict of Wexas at 1!laUas No.05-16-01408-CR

RICKY ALLEN DYISE, Appellant V. THE 1 TATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1654228-M

MEMORANDUM OPINION Before Jus ices Francis, Evans, and Boatright a inion by Justice Francis After a jury convicted Ricky Hen Oyise of retaliation for threatening to assault a police

officer who had arrested him, the trial court assessed punishment at ten years in prison,

suspended for six years' community supervision, and a $1,000 fine. In a single issue, appellant

contends he received ineffective assi ance of counsel. For reasons discussed below, we overrule

this issue. On our own motion, we modify the trial court's judgment to reflect the trial court

assessed punishment, which included a fine. We affirm the judgment as modified.

Appellant is homeless and lies on the streets of Dallas. Police Sgt. Ross Stinson was

assigned to the Central Business istrict, an area of downtown Dallas with a homeless

population. Stinson was on patrol I n April 23, 2016 when he saw appellant asleep on the sidewalk and "jostled" his foot to waken him. He asked if appellant was okay and told him to

go somewhere else to sleep. After lomplaining, appellant walked away but then returned.

Officer Brad Hance was at the scene with Stinson. Hance checked appellant's ID and

discovered three outstanding warr ts for public intoxication. When Stinson told appellant he

was being arrested on warrants, a pellant began walking away. Appellant became irate and

"balled his fist." To deescalate th situation, Stinson pulled out his Taser and told appellant

again that he was under arrest. The fficers were then able to handcuff appellant.

Hance transported appellant to the City Detention Center. During the drive, Hance said

appellant was "very upset" and "ver loud" and said, several times, that if Stinson had tased him,

appellant would have killed him. 1Ppellant also said that if Stinson did not "quit fucking with

people" in that area, he was "going 0 get killed." Once they arrived at the CDC, appellant saw

Stinson and loudly said if"you pull Taser at me again, I'm gonna shoot you in the head."

Sgt. Timothy Parker of the Dallas Marshal's Office was on duty at the CDC when

appellant was brought in. Appell nt was irate, screaming, and perspiring. Appellant was

looking over his shoulder and makin statements to Officer Hance "to the effect that mother - -

needs to watch out; somebody's goi g to kill him; if he'd hit me, I'd - - I'd shot him." Parker

subsequently learned appellant was ferring to Stinson, who was in the back writing his arrest

report. Appellant stood out to Parke because, unlike many of the arrestees who went through

the CDC and made threats, appellan did not appear to be drunk or high. Rather, Parker said

appellant was "just extremely violent' and was "grunting" and "snorting" and using his head to

"punctuate what he was saying."

When Stinson finished makin his report and walked out of the back of the building,

Parker and Hance told him about t threats appellant had been making. Although he was

concerned, Stinson said he decided to take the matter "under advisement" and, instead of

-2- arresting appellant, wrote up a bull tin about appellant to give a "heads up" to other officers who

might come in contact with him.

Five days later, on Apri 28, Stinson was driving through the same downtown

neighborhood with his car window down when he saw someone staring at him from a crowd of

people. He realized it was appella . While staring at Stinson, appellant said, "I'm going to fuck

you up," and took a "combative st nee" with his fists balled up. Stinson recalled the previous

threats and was also concerned that appellant's willingness to fight a police officer might lead to

his harming a random citizen. So, rinson stopped and told appellant to come over and place his

hands on his vehicle. Appellant rifused. Appellant began to shed his clothes, which Stinson

believed indicated appellant was pr paring for a street fight. Stinson pulled his Taser and called

for backup. Ultimately, other office s arrived and appellant was arrested.

Stinson said appellant mad threats against him and his family, saying he would kill

anybody Stinson loved and "there's othing safe." According to Stinson, appellant said he was

appellant's statement, "It's not a thr at, it's a promise." Stinson was concerned because he and

his wife lived in the neighborhood nd were frequently in that area. A recording of appellant

after he had been restrained was admitted into evidence. On the recording, appellant can be

heard talking about the Taser. When the officer asked if he was making threats, appellant

responds, "I'm not making no threaJ that's a promise." Minutes later, he repeatedly tells the

officers standing around him, "Y'all a e not going to shock me and get away with it--ever."

On redirect, the trial court allo ed Stinson to testify that appellant's criminal background

showed appellant had threatened and committed violent crimes in the past. When asked about

those offenses, Stinson said he believ ld there was one retaliation and "like an agg assault." The

'"' -.)- trial court determined appellant's ounsel opened the door to this evidence by asking Stinson

what specifically caused him to fea appellant.

Appellant testified he did lot remember interacting with Stinson during the April 23

incident and did not remember anyine pullin \ a Taser. He did remember Stinson from the April

28 incident. Appellant said he wa walking down the street and could feel someone following

behind him in a car. When he 10 ked bac ., he saw Stinson and said, "What the ef are you

looking at." He believed Stinson m sheard th s statement to be, "I'm going to fuck you up."

Appellant denied trying to \ rovoke 1 fight that day and said his fists were balled up

because he was bracing for being sed. At one point, he testified he normally did not get in

"this much trouble," which prompt, d the Sta e to argue appellant had opened the door to prior

criminal convictions. The trial cou agreed a~d allowed the jury to hear evidence that appellant

had a protective order issued again t him and had 2008 convictions for interfering with public

duties and two criminal trespasses, all invol ng a former girlfriend, as well as convictions in

2000 for theft and criminal trespass. APpella]t denied making any threats to kill Stinson or his

family and said he harbored no ill wi I.

In his sole issue, appellant c ntends c unsel provided ineffective assistance. Appellant I

complains defense counsel either" pened th} door" or failed to object to the introduction of

extraneous offense and bad characte evidenc I' failed to object to the State's argument that he

opened the door to extraneous offens s, and failed to investigate appellant's prior offenses listed

in the State's notice of intent to intro uce evide ce of extraneous offenses.

A substantial risk of failure a companier an appellant's claim of ineffective assistance of

counsel on direct appeal. Thompso v. StatJ, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Rarely will a reviewing court be pr ided the opportunity to make its determination on direct

appeal with a record capable of prov ding a fair evaluation of the merits of the claim involving \ such a serious allegation. Id. In t e majority of instances, the record on direct appeal is simply

undeveloped and cannot adequate Ii reflect the failings of trial counsel. Id.

To prevail on a claim of ine fective assistance of counsel, an appellant must show that (1)

counsel's representation fell below an objective standard of reasonableness and (2) the deficient

performance prejudiced the defe se; that is, but for the deficiency, there is a reasonable

probability that the result of th proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 689 (1 84); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.

2011). Unless appellant can prov both prongs, an appellate court must not find counsel's

representation to be ineffective. Lo ez, 343 S.W.3d at 142.

We must make a "strong p esumption that counsel's performance fell within the wide

range of reasonably professional ssistance" Id. To fmd counsel ineffective, counsel's \ . deficiency must be affirmatively emonstrated in the record, and we must not engage in

retrospective speculation. Id. Whe such direct evidence is not available, we will assume that

counsel had a strategy if any reasona ly sound strategic motivation can be imagined. Id.

The court of criminal appeal. has made clear that, in most cases, a silent record which

provides no explanation for counse 's actions will not overcome the strong presumption of

reasonable assistance. Rylander v. St te, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Further,

counsel should ordinarily be accor ed the opportunity to explain his actions before being I

denounced as ineffective. Menefiel v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).

Because the reasonableness oftrial cO nsel's choices often involve facts that do not appear in the

appellate record, an application for wtl of habeas corpus is the more appropriate vehicle to r~ise

ineffective assistance of counsel clai s. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Cnm.

App. 2002).

-5- Here, appellant filed a mlion for new trial but did not raise a complaint of ineffective

assistance of counsel; consequent y, the record before us provides no explanation for counsel's

actions or omissions. From this record, one could conclude there were legitimate and

professionally sound reasons for ounsel' s conduct or one could speculate that there were not.

And, trial counsel has not been gi en an opportunity to explain. Under these circumstances, we

cannot conclude appellant met the equirements of Strickland. We overrule the sole issue.

Although neither party has rised the issue, our review of the record reveals two errors in

the judgment. The judgment shols the jury assessed punishment and it does not reflect a fine.

The reporter's record, however, sows the trial court assessed punishment, which included a

$1,000 fine.' We have authority 0 correct a judgment below to make the record "speak the

truth" when we have the necessary ata and information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we modify the judgment to reflect

the trial court assessed punishment, \ hich included a $1000 fine.

We affirm the trial court's ju gment as modified.

!Molly Francis! MOLL Y FRANCIS JUSTICE

Do Not Publish TEX. R. ApP. P. 47.2(b) 161408F.U05

1 Acknowledging appellant had no money, the trial court allowed appellant's back time "to take care of the fine and all court cost."

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