ACCEPTED
12-15-00032-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/23/2015 3:42:18 PM
CATHY LUSK
CLERK
NOS. 12-15-00031-CR AND 12-15-00032-CR
IN THE COURT OF APPEALS OF THE STATE OF TEXAS FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
TWELFTH SUPREME JUDICIAL DISTRICT 7/23/2015 3:42:18 PM
CATHY S. LUSK
Clerk
TYLER, TEXAS
___________________________________________________________________
MITZI GAIL ALLGOR,
APPELLANT
V.
THE STATE OF TEXAS
___________________________________________________________________
TRIAL COURT CAUSE NOS. CF1302373 AND CF1302374
COUNTY COURT AT LAW, NACOGDOCHES COUNTY, TEXAS
STATE'S BRIEF
___________________________________________________________________
Stephanie Stephens
Assistant County Attorney
101 W. Main, No. 230
Nacogdoches, Texas 75961
936.560.7788
Fax 936.560.7809
Bar #19160055
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
TABLE OF CONTENTS
IDENTITY OF PARTIES ...................................................................................... III
INDEX OF AUTHORITIES .................................................................................. IV
STATEMENT OF THE CASE................................................................................ 1
RESPONSE TO ISSUES PRESENTED .................................................................... 3
STATEMENT OF FACTS...................................................................................... 3
SUMMARY OF THE ARGUMENTS ...................................................................... 7
STATE'S RESPONSE TO APPELLANT'S ISSUE NO. 1:
APPELLANT'S TRIAL COUNSEL WAS NOT INEFFECTIVE IN HIS REPRESENTATION OF THE APPELLANT . 8
CONCLUSION AND PRAYER ............................................................................ 17
CERTIFICATE OF COMPLIANCE ........................................................................ 18
CERTIFICATE OF SERVICE ............................................................................... 18
ii
IDENTITY OF PARTIES
Mitzi Gail Allgor, Appellant.
Honorable Jack Sinz, Judge of the County Court at Law of Nacogdoches County,
101 West Main, Nacogdoches, Texas 75961.
Stephanie Stephens, Assistant County Attorney for Nacogdoches County, Texas,
Attorney at Trial and on Appeal, 101 West Main, No. 230, Nacogdoches, Texas
75961.
Lee Westmoreland, Trial Counsel for Appellant, 416 Sunset Avenue,
Nacogdoches, Texas 75961.
Noel D. Cooper, Appellate Counsel for Appellant, 117 North Street, Suite 2,
Nacogdoches, Texas 75961.
iii
INDEX OF AUTHORITIES
CASES
Bohnet v. State, 938 S.W.2d 532 (Tex. App.—Austin 1997) .............................. 8, 10
Black v. State, 816 S.W.2d 350, 356 (Tex. Crim. App. 1991), cert. denied 112 S.Ct.
2983 (1992)......................................................................................................... 9
Calderon v. State, 950 S.W.2d 121, 127 (Tex. App.--El Paso 1997) ......................... 12
Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984) ............................... 8
Darden v. Wainwright, 477 U.S. 168, 184, 106 S. Ct. 2464, 2473, 91 L. Ed. 144
(1986) ................................................................................................................. 9
DeIorio v. State, 840 S.W.2d 443 (Tex. Crim. App. 1992) ..................................... 10
DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir. 1989), cert. denied 110 S.Ct. 556 107
L.Ed. 2d 552 (1989) ............................................................................................. 9
Gamble v. State, 916 S.W.2d, 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.)
......................................................................................................................... 10
Hebert v. State, 853 S.W.2d 207 (Tex. App.—Beaumont 1993, no pet. reported) .... 9
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) ............................ 9, 12
Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993), cert. denied, 114
S.Ct. 122 (1994) .................................................................................................. 8
iv
McFarland v. State, 845 S.W.2d 824 (Tex. Crim. App. 1992), cert. denied, 113 S.Ct.
2937 (1993) ........................................................................................................ 8
McFarland v. State, 928 S.W. 2d 482, 500 (Tex. Crim. App. 1996) ....................... 11
Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992) ................................. 10
Roberson v. State, 852 S.W.2d 508 (Tex. Crim. App. 1993); Delrio v. State, 840
S.W.2d 443 (Tex. Crim. App. 1992)..................................................................... 10
Ex parte Robinson, 639 S.W.2d 953, 954 (Tex. Crim. App. 1982).............................. 8
Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984) ........ 9, 10
Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990)............................. 10
STATUTES
TEX. CODE CRIM. PROC. ANN. Art. 36.01(b) ................................................................. 12
TEX. CODE CRIM. PROC. ANN. Art. 42.12 §3 and 4 ....................................................... 16
TEX. PEN. CODE ANN. §38.03 ...................................................................................... 2
TEX. PEN. CODE ANN. §12.21 .................................................................................... 13
TEX. PEN. CODE ANN. §12.43 .................................................................................... 13
TEX. HEALTH & SAFETY CODE ANN. §481.121 ................................................................. 2
v
NOS. 12-15-00031-CR AND 12-15-00032-CR
IN THE COURT OF APPEALS OF THE STATE OF TEXAS
TWELFTH SUPREME JUDICIAL DISTRICT
TYLER, TEXAS
___________________________________________________________________
MITZI GAIL ALLGOR,
APPELLANT
V.
THE STATE OF TEXAS
___________________________________________________________________
TRIAL COURT CAUSE NOS. CF1302373 AND CF1302374
COUNTY COURT AT LAW, NACOGDOCHES COUNTY, TEXAS
STATE'S BRIEF
___________________________________________________________________
Comes now the State of Texas, by and through her Assistant County Attorney
for Nacogdoches County, Texas, and files this brief in the above styled and
numbered cause.
STATEMENT OF THE CASE
The Appellant was charged by information with the offenses of Resisting
Arrest, in contravention of TEX. PEN. CODE ANN. §38.03 and Possession of Marijuana,
in contravention of TEX. HEALTH & SAFETY CODE ANN. §481.121. On October 15, 2014 a
jury was selected to hear evidence on the matter, and on November 20, 2014
evidence began. That same day the jury returned a finding of guilty as to both
charges. The Appellant had requested that in the event of a conviction, the
punishment in these cases be assessed by the Court, and requested that a Pre-
Sentence Investigation be completed. The case was reset for sentencing. On
January 8, 2015 a sentencing hearing was held, and the Court assessed punishment
in the Resisting Arrest case at two hundred and forty days in the county jail, and in
the Possession of Marijuana case at one hundred and twenty days in the county jail.
No Motion for New Trial was filed. The Appellant timely filed Notice of Appeal on
January 8, 2015, and Appellant Counsel was appointed by the Court on January 9,
2015.
2
RESPONSE TO ISSUES PRESENTED
State's Response to Appellant's Issue No. 1:
APPELLANT'S TRIAL COUNSEL WAS NOT INEFFECTIVE IN HIS REPRESENTATION OF THE APPELLANT.
STATEMENT OF FACTS
On October 8, 2013, Officer Brett Ayers of the Nacogdoches Police
Department was working an approved extra job providing security at Eastwood
Terrace Apartments in Nacogdoches. R.R Vol. 1 at Page 19. He noticed a vehicle
being driven by the Appellant driving recklessly and at a high rate of speed
through the complex. When the Appellant’s vehicle came to a stop, Officer Ayers
parked behind the vehicle and approached the driver’s side of the vehicle. R.R.
Vol 1 at Pages 21-23. After a few seconds, the Appellant began to get very
excited, and told the officer that she believed she had an open warrant for her
arrest. She then began yelling at a female standing nearby to come and get her
purse. R.R. Vol. 1 at Pages 25-27. Officer Ayres told the Appellant and the female
that the other female (the Appellant’s daughter) could not take the purse. The
Appellant then dumped the contents of the purse into the floorboard of the
vehicle and tried to hide something in her hand. When she was asked to show
the officer what she had in her hand, she refused and threw the object out the
3
window. R.R. Vol 1 at Pages 27-31. Officer Ayres shown his flashlight on the
ground where the object landed, and saw a clear bag of what appeared to be
marijuana. The officer attempted to place the Appellant under arrest for
Possession of Marijuana, but she began to struggle with him. As he grabbed her
left arm and attempted to remove her from the vehicle, she used force against
him by twisting, turning, jerking away, and kicking him. R.R. Vol 1 at Pages 31-33.
Officer Ayers was eventually able to place the Appellant in handcuffs; however
the Appellant then began calling out to bystanders to “get it”. As Officer Ayres
moved to recover the marijuana, he was forced to take the Appellant with him.
He observed two bags of what appeared to be marijuana on the ground, but as
they approached, the Appellant stepped on one of the bags and began grinding it
into the ground. R.R. Vol 1 at Pages 34-37. Once additional officers arrived at the
scene, Ayres was able to search the Appellant’s vehicle. In the front middle
console of the vehicle he found a cigar that he believed to be marijuana also. R.R.
Vol 1 at Page 40.
There was additional evidence from Caroline Allen, a chemist from the
Department of Public Safety Crime Lab in Tyler, confirming that the substances
recovered by Officer Ayers were all marijuana. R.R. Vol 1 at Pages 62-70.
The defense elected not to present evidence to the jury and rested. After
4
deliberations, the jury found the Appellant guilty of both offenses.
The Appellant had elected to have the Court assess punishment, and the
case was then continued so that a Pre-Sentence Investigation could be
completed.
At the punishment hearing the State re-offered evidence from the case-in-
chief, asked the Court to take judicial notice of the Pre-Sentence Investigation,
then rested. R.R. Vol 2 at Pages 4-7. The Appellant then testified that she
supports her 17 year old son who has schizophrenia, a 16 year old son with a
heart condition, as well as a 13 year old son and a grandchild. She also testified
that she has cleaning and landscaping jobs that she works by contract, and that
she gets an SSI disability payment on behalf of one of her sons. R.R. Vol 2 at
Pages 8-10.
The Appellant addressed her prior criminal history on direct examination by
saying that she had “been in trouble” for “transporting illegals” and that she had
been in trouble for misdemeanors. R. R. Vol 2 at Page 13. On cross examination,
the Appellant admitted that the person she identified as a supporter and her best
friend is convicted drug dealer. R.R. Vol 2 at Page 17. She also admitted to a
lengthy criminal past, including convictions for multiple misdemeanor Thefts,
felony Theft of a Firearm, Driving While License Invalid, Possession of Marijuana,
5
and Failure to Identify. Additionally she admitted that she had served a fifteen
month federal sentence for Alien Smuggling. In addition to those convictions, the
Appellant admitted to an arrest for Burglary of a Building, as well as a charge of
Possession of Marijuana just one year earlier, that was reduced to Possession of
Drug Paraphernalia. R.R. Vol 2 at Pages 17-21. The Appellant confirmed that she
was currently on felony probation for an additional Theft conviction. R.R. Vol 2 at
Page 24. When asked about the current charges, the Appellant denied being
guilty of Resisting Arrest, but admitted her guilt as to the Possession of Marijuana
charge. Throughout her testimony, the Appellant admitted having been placed
on felony adult probation at least two times in the past. R.R. Vol 2 at Page. 24.
After both sides presented arguments to the Court there was some brief
discussion between the Court and the attorneys. The Court clarified that the
Appellant was not on felony probation at the time these offenses were
committed. R.R. Vol 2 at Page 31. The Court commented that the Appellant was
asking for thirty days and the State was asking for three hundred days, and
commented “Doesn’t matter how long, she is going to jail.” R.R. Vol 2, Page 32 at
Lines 18-20. The Appellant’s attorney then commented “She isn’t eligible for
probation.” R.R. Vol 2, Page 32 at Lines 22-22. After a recess the Court made
some preliminary comments before assessing sentences. During those
6
comments, the Court said, “And I believe Resisting Arrest with priors is a
minimum of 90 days.” R.R. Vol 2, Page 34 at Lines 15-16. The Court explained
that when assessing punishment the main thing to consider is a defendant’s
criminal history and that the Appellant’s criminal history was bad. R.R. Vol 2 at
Page 34. Then the Court assessed punishment in the Possession of Marijuana
case at one hundred and twenty days and at two hundred and forty days on the
Resisting Arrest charge, and ordered that the sentences be served concurrently.
R.R. Vol 2 at Page 35.
SUMMARY OF THE ARGUMENTS
The appellant failed to meet either prong of the test for ineffective
assistance of counsel. There is no allegation that trial counsel failed to call the
trial court’s attention to any objectionable voir dire by the State, so this point
should not be considered. Appellant has failed to overcome the strong
presumption that her trial counsel’s brief opening statement was anything other
than trial strategy, and certainly has not demonstrated that a lengthier opening
statement would have changed the outcome of the proceedings. Appellant has
failed to overcome the strong presumption that trial counsel’s failure to clarify
the trial court’s potential misstatement of the range of punishment or trial
counsel’s apparent misstatement of the law regarding the Appellant’s probation
7
eligibility were not competence trial strategy. Additionally, Appellant has failed to
demonstrate that but for these alleged errors on the part of trial counsel, the
outcome of the proceeding would have been different.
State's Response to Appellant's Issue No. 1:
APPELLANT'S TRIAL COUNSEL WAS NOT INEFFECTIVE IN HIS REPRESENTATION OF THE APPELLANT.
The Appellant has the burden of proving ineffective assistance of counsel
by a preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex.
Crim. App. 1984); Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993),
cert. denied, 114 S.Ct. 122 (1994); McFarland v. State, 845 S.W.2d 824 (Tex. Crim.
App. 1992), cert. denied, 113 S.Ct. 2937 (1993). For this reason, an appellate
court is unable to conclude that the performance of trial counsel ineffective in the
absence of evidence concerning counsel’s reasons for his actions, or lack of
reasons for certain actions. Bohnet v. State, 938 S.W.2d 532 (Tex. App.—Austin
1997).
The constitutional right to effective assistance of counsel does not mean
errorless counsel at trial, or trial counsel whose competency or adequacy of
representation is to be judged by hindsight. The right to effective representation at
trial simply means counsel reasonably likely to render reasonably effective
assistance of counsel. Ex parte Robinson, 639 S.W.2d 953, 954 (Tex. Crim. App.
8
1982).
The standard to be used in determining whether Appellant received
effective assistance of counsel is two pronged. First whether trial counsel’s
representation fell below an objective standard of representation, and secondly,
that there is a reasonable probability that, but for the errors of the trial attorney,
the result of the proceeding would have been different. Darden v. Wainwright,
477 U.S. 168, 184, 106 S. Ct. 2464, 2473, 91 L. Ed. 144 (1986); Strickland v.
Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). This
standard applies both at the guilt-innocence phase of the trial, Black v. State, 816
S.W.2d 350, 356 (Tex. Crim. App. 1991), cert. denied 112 S.Ct. 2983 (1992), and the
punishment phase of the trial. Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App.
1999). For trial counsel to be found ineffective, his conduct must have so
undermined the proper function of the adversarial process that the trial cannot be
relied upon as having produced a just result. Hebert v. State, 853 S.W.2d 207 (Tex.
App.—Beaumont 1993, no pet. reported).
Additionally, judicial scrutiny of the performance of a defendant’s trial
attorney must be highly deferential. There is high deference to be given to trial
counsel’s judgment in evaluating the deficiency of trial counsel’s conduct. DeLuna
v. Lynaugh, 873 F.2d 757 (5th Cir. 1989), cert. denied 110 S.Ct. 556 107 L.Ed. 2d
9
552 (1989). A reviewing court must indulge a strong presumption that the
conduct of the trial attorney fell within the wide range of reasonable professional
assistance, and the Appellant must overcome the presumption that under the
circumstances, the challenged action might be considered sound trial strategy.
Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984); Roberson
v. State, 852 S.W.2d 508 (Tex. Crim. App. 1993); Delrio v. State, 840 S.W.2d 443
(Tex. Crim. App. 1992); Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992);
Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990)
Appellant must overcome the strong presumption that actions of trial
counsel challenged as ineffective might be trial strategy. Without some sort of
evidence reflecting why trial counsel conducted the trial as he did, the Court
cannot speculate that trial counsel was ineffective. Gamble v. State, 916 S.W.2d,
92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). The Appellant has the
burden of proving ineffective assistance of counsel and without evidence
concerning the reasons behind trial counsel’s actions, this Court cannot speculate
as to whether certain actions constituted trial strategy. Bohnet v. State, 938
S.W.2d 532 (Tex. App.—Austin 1997).
Appellant points to just two example of ineffective assistance of counsel
during the guilt-innocence phase of the trial: Failure to make objections during voir
10
dire, and a short opening statement.
A. Failure to object during voir dire
While Appellant makes this assertion, she fails to point to any part of the voir
dire that might have been objectionable. Any allegation of ineffectiveness must be
firmly founded in the record and the record must affirmatively demonstrate the
alleged ineffectiveness. McFarland v. State, 928 S.W. 2d 482, 500 (Tex. Crim.
App. 1996). In this case there is no such record. A broad claim that Appellant’s
trial attorney failed to object is meaningless unless there is at least an allegation
that there was a reason to object. Even if that were so, Appellant bears the burden
of showing that there is a reasonable probability that the result of the trial would
have been different had counsel objected. In this case, the Appellant has met
neither prong of Strickland.
B. Short opening statement
Appellant makes an additional claim that his trial counsel was ineffective for
giving a very brief opening statement before the presentation of evidence in this
case. Appellant suggests that her counsel's brief opening statement demonstrates
his overall ineffectiveness, yet provides no argument, authority, or evidence of how
this alleged lapse on her counsel's part constituted ineffectiveness. The option for
defense counsel to deliver an opening statement immediately after the State makes
11
its opening statement is entirely discretionary. See TEX.CODE CRIM.PROC.ANN. Art.
36.01(b). Few matters during a criminal trial could be more imbued with strategic
implications than the exercise of this option. Calderon v. State, 950 S.W.2d 121,
127 (Tex.App.—El Paso 1997). Trial counsel’s closing arguments demonstrate that
Appellant’s primary trial strategy was to persuade the jury that the State had not
proven its case beyond a reasonable doubt. Appellant elected not to present a
defense after the State rested. In all probability, Appellant’s counsel had this in
mind when he briefly spoke to the jury in opening statements. Given the
overwhelming evidence in this case, any additional opening statement may be been
unnecessary or strategically undesirable.
Appellant fails to rebut the strong presumption that trial counsel’s decision to
not give a lengthy opening statement fell within the wide range of reasonable
professional assistance mentioned in Strickland.
Appellant then turns to the punishment phase of the trial. As in the guilt-
innocence phase of the trial, the standards established in Strickland are to be
used in evaluating the effectiveness of trial counsel in the sentencing phase of all
noncapital proceedings. Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App.
1999). In other words, the same two pronged test applies, and the Appellant has
the burden of proving to this Court that both the level of representation at the
12
punishment phase of the trial fell below an objective standard of representation,
and that there is a reasonable probability that but for the errors, the result would
have been different. Appellant fails to meet either prong.
Appellant complains of trial counsel’s failure to object to the Trial Court’s
apparent misstatement that the minimum sentence for the Resisting Arrest
conviction was ninety days, and to trial counsel’s apparent misstatement at
Appellant was not eligible for probation.
C. Range of Punishment
The range of punishment for Resisting Arrest, a Class A misdemeanor, is up to
a year in the county jail and/or a fine not to exceed $4000. TEX. PEN. CODE ANN.
§12.21. If it is found that a defendant has a prior conviction of a Class A or greater
offense, the minimum period of confinement is increased to ninety days. TEX. PEN.
CODE ANN. §12.43(a). The State concedes that for the minimum punishment to be
increased, a defendant is entitled to notice that prior convictions will be used to
enhance punishment. However it is not clear that by the statement made by the
trial court, “And I believe Resisting Arrest with priors is a minimum of 90 days,”
that the trial court did any more than state a hypothetical. The trial court certainly
did not directly apply this statement to this case, or say that in this case, that would
be the range of punishment that would be considered. The trial court when
13
summarizing the arguments of both parties mentioned that the Appellant was
asking for thirty days, and never opined that thirty days would be outside the range
of punishment. While trial counsel did not object to this statement, he did
affirmatively ask the trial court to assess a sentence that was substantially less than
ninety days. It is reasonable to assume both that the trial attorney did not interpret
the trial court’s statement to be the court’s understanding of the law in this
particular case, and that the trial court gave meaningful consideration to the entire
range of punishment.
Assuming for argument that trial counsel fell below the acceptable standard
when he failed to correct the potential misstatement of the trial court, the
Appellant must still demonstrate that there was a reasonable probability that, but
for this alleged error, the her sentence would have been different. In this case it is a
reasonable assumption that regardless of the minimum range of punishment, the
trial court was not inclined to assess punishment at the lower end of the range, and
that the sentence in this case was appropriate, if not somewhat lenient. The actual
punishment assessed was two hundred and forty days, more than twice the ninety
days that would have been the minimum if the charge had been properly enhanced,
and much closer to the maximum of one year in jail. This seems to indicate that the
trial court believed the evidence demanded a sentence much closer to the
14
maximum. A review of the evidence supports this claim. The Appellant had a prior
federal felony conviction for which she served penitentiary time and prior state
felony probated convictions. The Appellant was also currently serving a probated
felony sentence. She had a long history of misdemeanor convictions, including
Theft and Possession of Marijuana, one of the same offenses for which she had just
been convicted. During the punishment phase of the trial, the Appellant refused to
take responsibility for the Resisting Arrest offense, and continued to deny her guilt.
Evidence during the guilt-innocence portion of the trial showed that not only did the
Appellant use force against a peace officer attempting to arrest her, but that she
tried to involve other people in her effort to conceal evidence, and that even after
she was placed in custody, she tried to destroy evidence by grinding the marijuana
into the ground. In light of this overwhelming evidence, it simply cannot be said
that the trial court’s sentence of two hundred and forty days was unreasonable, or
that any clarification of by trial counsel as to the minimum range of punishment
would have reasonably affected the outcome of the sentence. 1 Appellant has failed
to demonstrate any harm, or that an objection to this statement would have
changed the outcome of the proceeding; nor has Appellant overcome the strong
1
The statement regarding the increased minimum was made only as to the Resisting Arrest
conviction, so could not have affected the sentence in the Possession of Marijuana case in any
way.
15
presumption of effectiveness.
D. Probation Eligibility
A cold reading of the record seems to indicate that counsel misstated the law
regarding the Appellant’s probation eligibility. If his intent was to convey to the trial
court that the Appellant was not eligible for probation from a judge, Appellant’s trial
counsel was mistaken. The Appellant’s prior convictions would have made her
ineligible for probation from a jury, but there is no such limitation on judge-ordered
community service. TEX.CODE CRIM.PROC.ANN. Art. 42.12 §3 and §4.
Even if it is assumed for argument that trial counsel fell below the objective
standard of representation when he made this statement, the Appellant has the
additional burden of showing that but for this misstatement, the outcome would
have been different and that the trial court would have probated the Appellant’s
sentence. The argument regarding the harmlessness this misstatement is very
similar to the prior argument regarding minimum range of punishment. The same
evidence that shows the suitability of the length of the sentences in these cases
(Appellant’s prior convictions, current probation, lack of acceptance of
responsibility, and facts surrounding the offense) overwhelmingly demonstrates
that the Appellant was not a candidate for probation. While the trial court did
inquire whether the Appellant was being drug tested on her current probation (R.R.
16
Vol 2 at Page 31), it is just as likely—if not more so—that the trial court was
interested in whether the Appellant was smoking marijuana after her conviction for
Possession of Marijuana. In fact, after a brief discussion about the drug testing, the
trial court stated, “I was just curious about that,” (R.R. Vol 2 at Page 32), which
seems less indicative of interest in probating the sentence and more interest in
whether the Appellant is using any illegal substances. It is certainly not an indication
that if trial counsel had not made a statement about probation ineligibility, the
outcome of these cases would have been any different. Moreover, based on the
trial court’s statements regarding the importance of criminal history2, it is not at all
likely that probation would have ever been an option in these cases.
Appellant has not overcome the strong presumption that all the alleged
deficiencies of which she complains were simply trial strategy on behalf of her
attorney at trial, and she has failed to show that the results would have been
different if her trial counsel had acted as he now wishes. Appellant’s first Issue
for Review is without merit and should be overruled.
CONCLUSION AND PRAYER
WHEREFORE, for the foregoing reasons, the State of Texas prays that the
Appellant's conviction be in all things affirmed.
2
“And criminal history is the main thing we look at. Your criminal history is bad, so we have to
consider that in assessing punishment.” R.R. Vol 2 at Page 34.
17
Respectfully Submitted,
_____________________________
Stephanie Stephens
Assistant County Attorney
101 W. Main, No. 230
Nacogdoches, Texas 75961
936.560.7766
Fax 936.560.7809
Bar #19160055
18
CERTIFICATE OF COMPLIANCE
I certify that word count for this brief totals 3,666.
____________________________
Stephanie Stephens
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the State's Brief in the above
entitled and numbered cause was transmitted to the attorney for the appellant,
Noel D. Cooper, 117 North Street, Suite 2, Nacogdoches, Texas 75961 on the 23rd
day of July, 2014.
____________________________
Stephanie Stephens
19
Mitzi Gail Allgor v. State
Combined Opinion