ACCEPTED
14-14-00091-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
5/7/2015 9:31:35 PM
CHRISTOPHER PRINE
CLERK
FILED IN
No. 14-14-00091-CR 14th COURT OF APPEALS
HOUSTON, TEXAS
5/7/2015 9:31:35 PM
In the CHRISTOPHER A. PRINE
Court of Appeals Clerk
for the
Fourteenth District of Texas
at Houston
No. 1400039
In the 185th District Court
Harris County, Texas
ADRIAN FRANCISCO MIRANDA
Appellant
V.
THE STATE OF TEXAS
Appellee
APPELLANT’S MOTION FOR REHEARING
MANDY MILLER
Attorney for Adrian Francisco Miranda
State Bar No: 24055561
2910 Commercial Ctr. Blvd., Ste. 103-201
Katy, TX 77494
(832) 900-9884
Fax: (877) 904-6846
mandy@mandymillerlegal.com
TABLE OF CONTENTS
INDEX OF AUTHORITIES.................................................................................................ii
APPELLANT’S GROUND FOR REHEARING .............................................................1
PRELIMINARY STATEMENT ...........................................................................................2
GROUND FOR REHEARING............................................................................................2
CONCLUSION.........................................................................................................................5
CERTIFICATE OF SERVICE..............................................................................................6
i
INDEX OF AUTHORITIES
CASES
Miranda v. State,
No. 14-14-00091-CR, 2015 WL 1870329 (Tex. App.--Houston
[14th Dist.] Apr. 23, 2015, no pet. h.) (not designated for publication)...................2, 3
Strickland v. Washington,
466 U.S. 668 (1984)...........................................................................................................1, 4
United States v. Cronic,
466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984) ..................................4
RULES
TEX. R. APP. P. 49.1...................................................................................................................1
TEX. R. APP. P. 49.7...................................................................................................................1
ii
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, APPELLANT, by and through his undersigned attorney, and
pursuant to Rule 49.1 of the Texas Rules of Appellate Procedure, and respectfully
requests the panel of this Court reconsider its opinion in this cause delivered on April
23, 2015. In support thereof, the State would show the panel of this Court the
following:
APPELLANT’S GROUND FOR REHEARING
The panel erred in finding that appellant had not he suffered prejudice
under the second prong of Strickland v. Washington1 when trial counsel
was deficient for eliciting testimony that appellant had previously been
charged with a sexual offense and then having appellant admit he was
untruthful with the jury. Specifically, under these circumstances,
prejudice can be presumed.
1 466 U.S. 668 (1984)
PRELIMINARY STATEMENT
Appellant was charged by indictment with aggravated sexual assault of a child.
(CR 7). A jury convicted appellant of the charged offense. (CR 183, 184). Appellant
chose to forgo punishment by jury and the court sentenced him to 25 years
confinement in the Institutional Division of the Texas Department of Criminal
Justice. (CR 183, 184). This appeal followed.
On April 23, 2015, a panel of this Court issued an unpublished opinion
affirming appellant’s conviction. Miranda v. State, No. 14-14-00091-CR, 2015 WL
1870329 (Tex. App.--Houston [14th Dist.] Apr. 23, 2015, no pet. h.) (not designated
for publication). Appellant now files this motion for rehearing.
GROUND FOR REHEARING
The panel erred in finding that appellant had not established he suffered
prejudice under the second prong of Strickland v. Washington when trial
counsel was deficient for eliciting testimony that appellant had previously been
charged with a sexual offense and counsel also had appellant admit he was
untruthful with the jury. Under these circumstances, prejudice can be
presumed.
Appellant took the stand and testified on his own behalf and denied all of the
accusations against him. On redirect examination, counsel asked appellant whether he
had ever previously been charged with a sex crime. (RR IV 193). Appellant testified
that he had not. (RR IV 193). However, the State approached the bench and
informed the court that appellant had, as a juvenile, been charged with indecency with
a child. (RR IV 195). Counsel knew of this offense because the State gave notice and
2
it was in the clerk’s file. (CR 76, 78-80; RR IV 196). Yet, counsel’s only response to
the State’s assertion that counsel had “opened the door” was that the charge was
dismissed. (RR IV 195). But counsel asked appellant whether he had ever been
charged with a sex crime, not whether he had been convicted.
Counsel then followed up by asking appellant, in front of the jury, whether his
testimony that he had never been charged with a sex crime was truthful. (RR IV 196).
Appellant responded that it was not and counsel passed the witness. (RR IV 196).
The State did not ask any further questions and both sides rested. (RR IV 197). The
very last evidence the jury received was that appellant had previously been charged
with a “sexually-based offense.” (RR IV 196). Counsel did not elicit testimony that
the charge occurred when he was a juvenile, and did not inform the jury that it was
dismissed. They only knew that appellant was involved in some sort of sexual crime
and that he had lied to them initially when he said he had never been charged.
This Court agreed that counsel’s performance “very well could amount to
deficient performance under Strickland because appellant’s defense rested almost
entirely on his credibility versus the complainant’s credibility.” Miranda, 2015 WL
1870329, at *5. This Court also noted that the record revealed no valid trial strategy
for counsel’s opening the door to the extraneous offense. Id. at n.3. Despite
counsel’s deficient performance, this Court found that appellant did not demonstrate
that he was prejudiced because “the evidence of the extraneous offense was extremely
brief.” Id. at *6.
3
Certain types of errors by counsel are considered so serious that prejudice is
presumed. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; United States v. Cronic, 466
U.S. 648, 659 n. 25, 104 S.Ct. 2039, 2047 n. 25, 80 L.Ed.2d 657 (1984). In cases
involving those errors, a defendant is not required to affirmatively prove prejudice
under the second prong of the Strickland test. For example, in a denial of counsel
case, and in certain types of government interference cases, prejudice is presumed
because “prejudice in these circumstances is so likely that case-by-case inquiry into
prejudice is not worth the cost.” Strickland, 466 U.S. at 692. The Supreme Court also
recognized that a “more limited” presumption of prejudice will apply when a
defendant alleges actual ineffectiveness based on counsel’s conflict of interest. Id.
However, the Court hesitated to presume prejudice in all actual ineffectiveness cases.
Id. at 693.
Conflict of interest claims aside, actual ineffectiveness claims alleging a
deficiency in attorney performance are subject to a general requirement
that the defendant affirmatively prove prejudice.... Attorney errors come
in an infinite variety and are as likely to be utterly harmless in a particular
case as they are to be prejudicial. They cannot be classified according to
likelihood of causing prejudice. Nor can they be defined with sufficient
precision to inform defense attorneys correctly just what conduct to
avoid. Id.
While concern over the uncertainty of prejudice and the inability to define deficient
conduct is valid in many situations, such concern is unjustified in this case.
Appellant was charged with aggravated sexual assault of a child. Appellant
testified on his own behalf and denied the allegations against him. Thus, appellant’s
4
defense hinged on the jury’s evaluation of his credibility. Through trial counsel’s
direct examination, the jury was allowed to hear that appellant was previously charged
with another sexually-based offense. Additionally, the jury learned that appellant lied
about never being charged, thus continuing to injure his credibility. This was the last
evidence presented to the jury before closing arguments. By finding that appellant did
not establish prejudice from his counsel’s deficient conduct, this Court ignored the
enormous impact counsel’s actions would have had on the jury and how it would have
affected its decision on appellant’s guilt or innocence. Under these circumstances,
prejudice can, and should, be presumed.
CONCLUSION
It is respectfully submitted that appellant’s motion for rehearing should be
granted, and that his conviction should be reversed and the cause remanded for a new
trial.
/s/ Mandy Miller
MANDY MILLER
Attorney for Adrian Francisco Miranda
State Bar No: 24055561
2910 Commercial Ctr. Blvd., Ste. 103-201
Katy, TX 77494
(832) 900-9884
Fax: (877) 904-6846
mandy@mandymillerlegal.com
5
CERTIFICATE OF COMPLIANCE
In accordance with the Texas Rules of Appellate Procedure, I hereby certify
that appellant’s supplemental brief, filed on May 7, 2015, has 1,348 words based upon
a word count under MS Word.
/S/Mandy Miller
MANDY MILLER
Attorney for Adrian Francisco Miranda
2910 Commercial Center Blvd., Ste. 103-201
Katy, TX 77494
SBN 24055561
(832) 900-9884
FAX (877) 904-6846
mandy@mandymillerlegal.com
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been delivered via
electronic mail to the following:
Alan Curry
curry_alan@dao.hctx.net
/s/ Mandy Miller
MANDY MILLER
6
Adrian Francisco Miranda v. State
Combined Opinion