PD-0392-15
PD-0392&0393-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/22/2015 10:55:21 AM
Accepted 4/23/2015 9:38:59 AM
ABEL ACOSTA
MICHEAL B. MURRAY CLERK
DISTRICT ATTORNEY
35TH JUDICIAL DISTRICT OF TEXAS
BROWN AND MILLS COUNTIES
CHRIS BROWN
200 S. BROADWAY, COURTHOUSE FIRST ASSISTANT DISTRICT ATTORNEY
BROWNWOOD, TEXAS 76801
(325) 646-0444 FAX: (325) 643-4053 ELISHA BIRD
ASSISTANT DISTRICT ATTORNEY
J. CHRISTINA NELSON
ASSISTANT DISTRICT ATTORNEY
April 23, 2015
April 22, 2015
The Court of Criminal Appeals
Supreme Court Building
201 West 14th Street, Room 106
Austin, Texas 78701
Re: Breanna Spencer, PD 0392-15 & PD 0393-15, 11-13-00007-CR & 11-13-00008-CR
To the Honorable Court of Criminal Appeals:
The State has received Breanna Spencer’s Petition for Discretionary Review. In lieu of
filing a formal response to the Petition for Discretionary Review, the State would simply ask this
Court to refuse to review this case for the following reasons.
First, Petitioner has not alleged a reason for review that appropriately represents the
decision by the Eleventh Court of Appeals. Petitioner’s question presented for review claims
that there was no strategic motivation for trial counsel’s failure to object to the State’s closing
argument. See Applicant’s Petition for Discretionary Review, p. 3. However, the Eleventh
Court of Appeals held that the State’s closing argument was proper and therefore failure to
object cannot constitute deficient performance by Applicant’s trial counsel. Spencer v. State,
Nos. 11-13-00007-CR and 11-13-00008-CR, 2015 WL 1089813, at *7 (Tex. App.—Eastland
Mar. 5, 2015, pet. filed).
Petitioner has not alleged any ground for reviewing the Eleventh Court of Appeals’
decision that the State’s closing argument was proper. Absent a decision to reverse the court of
appeals ruling on the appropriateness of the State’s closing argument, there is no issue of
ineffective assistance available for Petitioner to have reviewed. Counsel cannot be held
ineffective for failing to object to proper closing argument.
Additionally, Petitioner has failed to provide an appropriate reason for review under
Rule 66.3 of the Texas Rules of Appellate Procedure. The court of appeals did not decide an
important question of state or federal law in a manner that would conflict with applicable
decisions of this Court.
As this Court is aware, refusal of a petition for discretionary review does not constitute
endorsement or adoption of the reasoning employed by the court of appeals. Aguilar v. State,
830 S.W.2d 612, 613 (Tex. Crim. App. 1992) (en banc).
Should this Court choose to grant review, the State requests notice and time to respond to
the merits of the claims presented by Petitioner.
Sincerely yours,
/s/
Elisha Bird
Assistant District Attorney
cc: Stan Brown, attorney for Petitioner, mstrb@aol.com