No. 01-14-00121-CR

In the 

Court of Appeals 

For the 

First District of Texas 

At Houston 



No. 1268863

In the 178th District Court 

Of Harris County, Texas 



PAUL BRIONES 

Appellant 

V.

THE STATE OF TEXAS 

Appellee



STATE’S APPELLATE BRIEF 



DEVON ANDERSON

District Attorney 

Harris County, Texas 

KIMBERLY APERAUCH STELTER

Assistant District Attorney 

Harris County Criminal Justice Center 

1201 Franklin, Suite 600 

Houston, Texas 77002 

Telephone: 713.274.5826 

stelter_kimberly@dao.hctx.net 

State Bar Number: 19141400 

CONNIE SPENCE

MARITZA ANTU

Assistant District Attorneys 

Harris County, Texas 

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

01-14-00121-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/15/2015 12:32:03 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/15/2015 12:32:03 PM CHRISTOPHER A. PRINE Clerk
i

STATEMENT REGARDING ORAL ARGUMENT

State believes that the matters raised by the appellant are well-settled, 

and that the briefs in this case adequately apprise this Court of the issues and 

the law. Therefore, the State does not request oral argument. 

IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a 

complete list of the names of all interested parties is provided below.

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Kimberly Aperauch Stelter  Assistant District Attorney on 

appeal

Connie Spence, Maritza Antu  Assistant District Attorneys at 

trial

Appellant and counsel:

Paul Briones  Appellant

Daucie Schindler  Counsel on appeal 

John Floyd, Christopher Carlson  Defense counsel at trial

Trial Judge:

Honorable David Mendoza  Judge Presiding
ii

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS.......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ........................................................................5

REPLY TO APPELLANT’S FIRST, SECOND

AND THIRD ISSUES PRESENTED........................................................................5

Standard of Review on Motion for New Trial

Standard of Review on Ineffective Assistance of Counsel

Defense Counsel’s Strategy was Based on Extensive 

Investigation and Preparation for Trial

1) Decision not to Call Multiple Witnesses for the Defense

2) Decision not to Impeach

3) Decision not to Call Other Witnesses to Present 

Mitigation Testimony at Punishment 

Conclusion

PRAYER..................................................................................................................17

CERTIFICATE OF SERVICE ................................................................................18

CERTIFICATE OF COMPLIANCE.......................................................................19
iii

INDEX OF AUTHORITIES

CASES

Bone v. State,

77 S.W.3d 828 (Tex. Crim. App. 2002)............................................................................8

Damian v. State,

881 S.W.2d 102 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref'd).............................................................................. 13

Davis v. State,

276 S.W.3d 491 (Tex. App.–

Waco 2008, pet. ref'd)......................................................................................................... 13

Ex parte Ewing,

570 S.W.2d 941 (Tex. Crim. App. 1978)....................................................................... 14

Ex Parte Imoudu,

284 S.W.3d 886 (Tex. Crim. App. 2009)..........................................................................7

Ex parte Varelas,

45 S.W.3d 627 (Tex. Crim. App. 2001)............................................................................8

Hale v. State,

140 S.W.3d 381 (Tex. App.—

Fort Worth 2004, pet. ref'd ............................................................................................... 10

Harris v. State,

No. 01–88–00991–CR, 1990 WL 39468, at *4 (Tex. App.–

Houston [1st Dist.] pet. ref'd) (not designated for publication)........................ 14

Messer v. State,

757 S.W.2d 820 (Tex. App.—

Houston [1st Dist.] 1988, pet. ref'd).................................................................................7

Mitchell v. State,

68 S.W.3d 640(Tex. Crim. App. 2002).............................................................................7

Reyes v. State,

849 S.W.2d 812 (Tex. Crim. App. 1993)..........................................................................6

Richardson v. State,

921 S.W.2d 359 (Tex. App. –

Houston [1st Dist.]1996, no pet.)......................................................................................7
iv

Shanklin v. State,

190 S.W.3d 154 (Tex. App.—

Houston [1st Dist.] 2005, pet. dism’d).......................................................................... 15

Sims v. State,

807 S.W.2d 618 (Tex. App.–

Dallas 1991, pet. ref'd)........................................................................................................ 14

State v. Gonzalez,

855 S.W.2d 692 (Tex. Crim. App. 1993)..........................................................................6

Strickland v. Washington,

466 U.S. 668 (1984)..........................................................................................................7, 16

Thompson v. State,

9 S.W.3d 808 (Tex. Crim. App. 1999)...............................................................................8

Weisinger v. State,

775 S.W.2d 424 (Tex. App.—

Houston [14th Dist.] 1989, pet. ref'd)........................................................................... 16

Williams v. State,

301 S.W.3d 675 (Tex. Crim. App. 2009)..........................................................................8

STATUTES

TEX. CODE CRIM. PROC. art. 57.02(h) (West 2010)..............................................................1

RULES

TEX. R. APP. P. 38.2(a)(1)(A) ....................................................................................................... i
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

Appellant was charged by indictment with both indecency with a child 

and aggravated sexual assault of a child (RR4 71-72). He entered a plea of 

not guilty to both, and the two cases were tried together (CR 71-72). The 

jury found him not guilty of aggravated sexual assault, but guilty of the 

indecency charge, and assessed his punishment at 20 years in the 

Institutional Division of the Texas Department of Criminal Justice (RR9 8, 

RR10 190-191). Appellant filed a motion for new trial, which, after a 

hearing, was denied (RR17 4-16). Appellant filed timely notice of appeal, 

and the court certified his right to appeal (CR 67-68).



STATEMENT OF FACTS

Lisa1 was ten years old in the summer of 2004 (RR6 27). At this age 

she and her older sister, Kim, spent a lot of time over at their Aunt Joanna’s 

house (RR6 23-24, 32). Lisa liked go to Aunt Joanna’s as there were a lot of 

things to do there (RR6 25). There were also cousins to play with. Joanna 

 

1 In order to protect their privacy, the State will refer to the complainant by the 

pseudonym “Lisa,” and her sister by the name “Kim.” See TEX. CODE CRIM. PROC. art. 

57.03(a) (West 2014). 
2

had three children of her own; Ashley, who was a few years older than Kim, 

Johnathan, who was Lisa’s age, and Destinee, who was three years younger 

than Lisa (RR6 28, 26). Appellant, Aunt Joanna’s husband and Lisa’s uncle by 

marriage, was a police officer, but he wasn’t home very often and when he 

was, he was usually sleeping due to his work schedule (RR6 30, 31). When 

he was awake and playing with the kids, Lisa felt that she and Destinee were 

his favorites (RR6 27, 34). 

One evening that summer, Lisa and Kim were sleeping over at their 

Aunt Joanna’s house. That night they set up a bed on the living room floor 

and watched a movie with Destinee (RR6 42, 44). Kim and Destinee both fell 

asleep during the movie, but Lisa was still awake when appellant got home 

late from work (RR6 45-46). 

Lisa was not supposed to be up that late, so she pretended to be asleep 

when appellant came into the living room, turned off the TV, and adjusted a

blanket covering the three girls (RR6 50, 53). After moving about the house, 

appellant came back over to Lisa’s side of the makeshift bed and laid down

(RR6 54-55). He removed the blanket from Lisa and pulled down her shorts 

and underwear (RR6 58). Appellant then placed his hand on Lisa’s vagina 

and moved his fingers (RR6 60). This made Lisa feel very uncomfortable, so 

she started to stretch as if she were waking up (RR6 62). In response, 
3

appellant pulled Lisa’s shorts and panties back up, placed the blanket back 

over her, and walked away to the kitchen, where he started making a 

sandwich (RR6 63, 64). 

Not much later appellant came back and resumed where he had left 

off, uncovering Lisa and pulling down her short and panties. This time, 

however, he also put his mouth on Lisa’s vagina (RR6 66-67). Lisa once again 

moved, turning her body toward her cousin, and again appellant covered her 

up and left (RR6 69). 

Appellant returned to Lisa’s side yet again that evening, this time 

sexually assaulting her by putting his mouth and hand on her vagina (RR6 

72). Lisa again responded by turning on her side, away from appellant (RR6 

75). Appellant covered Lisa up and then went to his bedroom (RR6 74). Lisa, 

meanwhile, moved to sleep between her cousin and her sister (RR6 74). 

Appellant came out to the living room one more time that evening but, 

perhaps thwarted by Lisa’s new sleeping position, just stood by the fireplace 

and stared at Lisa before grabbing his sandwich and returning to his 

bedroom (RR6 75). Lisa didn’t tell anyone what had happened that night, but 

in the morning she packed up her belongings and told her aunt she wanted 

to go home (RR6 77). 
4

Lisa was scared and confused as to what had happened that evening, 

and didn’t tell anybody until three years later, in the summer of 2007 (RR4 

92, RR6 83). When she did tell, it was to her Aunt Katherine, and then she 

only told her that appellant “touched me.” (RR4 149-150). She also made 

her aunt promise not to tell her parents (RR4 94). Her aunt kept that 

promise, but insisted that Lisa tell her parents (RR4 99). 

Lisa finally did so in January of 2008, with her aunt Katherine present 

(RR4 110 RR5 83-84, 88, RR 6 91). She gave only the “bare minimum” in 

details about that night, however, and begged her parents not to go to the 

police (RR6 91-92).

Lisa’s parents did take her to a psychologist at that time, but Lisa

refused to talk to her, as she felt she could not tell a complete stranger what 

had happened (RR4 175-176, RR6 91). Lisa’s mother and father finally 

acquiesced in not reporting appellant to the police, but they also made sure 

that their children did not spend the night at appellant’s house ever again 

(RR4 177, RR6 98-99). 

Then, in 2010, Lisa’s father, while picking up clothes in Lisa’s 

bedroom, came across some papers where Lisa had written about the 

incident with appellant and how it was still affecting her (RR4 186, RR6 95, 

104). At the time Lisa was feeling very depressed and sad, and was 
5

considering harming herself (RR6 97). Lisa’s parent were alarmed by what 

Lisa had written, and decided they needed to take some action, so they 

finally reported the crime to the police (RR4 188, 193-194, RR5 125). 



SUMMARY OF THE ARGUMENT

The trial court did not abuse it’s discretion in denying appellant’s 

motion for new trial. The evidence developed at the motion for new trial 

hearing supported the trial court’s findings that trial counsel rendered 

effective assistance of counsel. In particular, the decision not to call certain 

witnesses at the guilt/innocence and punishment stages of trial, as well as 

the decision not to impeach the complaining witness with minor 

inconsistences in her testimony from the previous trial, were legitimate 

decisions based on sound trial strategy, and did not render trial counsel’s 

representation ineffective. 



REPLY TO APPELLANT’S FIRST, SECOND 

AND THIRD ISSUES PRESENTED

Appellant raises three issues on appeal, all concerning the trial court’s 

decision to deny his motion for new trial. Appellant contends that the trial 
6

court should have granted him a new trial on the basis that his trial counsel 

was ineffective. Appellant presents three reasons why he believes his 

counsel was ineffective: 1) his decision not to call certain witnesses for the 

defense, 2) his decision not to impeach the complaining witness with certain 

prior inconsistent statements, and 3) his decision not to present additional 

mitigating evidence at the punishment stage of trial. 

The trial court considered trial counsel’s testimony on each of these 

three issues at the lengthy three day hearing on appellant’s motion for new 

trial (RR14-RR16). At the conclusion of the hearing, the trial court made 

specific findings of facts and conclusions of law that trial counsel’s decisions

were strategic ones that had a plausible basis, as set out in the record, and 

that trial counsel rendered effective assistance of counsel (RR17 11). The 

evidence supports the trial court’s ruling. 

Standard of Review on Motion for New Trial

Ineffective assistance of counsel may be raised in a motion for new 

trial. State v. Gonzalez, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993); Reyes v. 

State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). Because the decision on a 

motion for new trial rests within the sound discretion of the trial court, the 

standard of review on appeal is whether the trial court abused its discretion. 

In the absence of an abuse of discretion, appellate courts are not justified in 
7

reversing the judgment. Gonzalez, 855 S.W.2d at 696. Richardson v. State, 

921 S.W.2d 359, 361 (Tex. App. –Houston [1st Dist.]1996, no pet.). In 

considering a motion for new trial, the trial court possesses broad discretion 

in assessing the credibility of witnesses and in weighing the evidence to 

determine whether a different result would occur upon retrial. Messer v. 

State, 757 S.W.2d 820, 827–828 (Tex. App.—Houston [1st Dist.] 1988, pet. 

ref'd).

Standard of Review on Ineffective Assistance of Counsel

To show ineffective assistance of counsel, a defendant must 

demonstrate both (1) that his counsel’s performance fell below an objective 

standard of reasonableness and (2) that there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Ex 

Parte Imoudu, 284 S.W.3d 886, 869 (Tex. Crim. App. 2009). A reasonable 

probability is one sufficient to undermine confidence in the outcome of a 

case. Strickland, 466 U.S. at 687; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. 

Crim. App. 2002). It is not enough for a defendant to show that the errors, if 

any, had some conceivable effect on the outcome of the proceeding. 

Strickland, 466 U.S. at 687; Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. 

App. 2001). Rather, this stringent burden requires that he point to objective 
8

facts in the record to support lack of confidence in the conviction, i.e. proof 

of prejudice. Bone v. State, 77 S.W.3d 828, 837 (Tex. Crim. App. 2002). 

Failure to make either one of these required showings defeats an 

ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. 

App. 2009) (“An appellant’s failure to satisfy one prong of the Strickland test 

negates a court’s need to consider the other prong.”).

In reviewing counsel’s performance, appellate courts should look at 

the totality of the representation to determine the effectiveness of counsel, 

indulging a strong presumption that the attorney’s performance falls within 

the wide range of reasonable professional assistance or trial strategy. 

Thompson v. State, 9 S.W.3d 808 at 813 (Tex. Crim. App. 1999). A claim of 

ineffective assistance must be firmly supported in the record. Id. 

Defense Counsel’s Strategy was Based on Extensive 

Investigation and Preparation for Trial

The trial court heard extensive testimony at the hearing on appellant’s 

motion for new trial, all if it from appellant’s trial counsel, John Floyd. 

Appellant had hired Floyd after the performance by his previous trial 

attorney, Abraham Fisch, resulted in appellant’s conviction for both injury to 
9

a child and aggravated sexual assault (RR16-164, 215).2 Floyd testified at 

the motion for new trial hearing regarding his trial preparation, his strategy 

for what evidence to present, what cross-examination to conduct, and what 

defensive theory he decided to pursue (RR14 –RR16).

Floyd explained that he was a board certified criminal defense lawyer 

with close to 20 years of criminal law experience (RR13 15-16). Floyd had 

tried 40 to 50 trials, including several sexual crimes (RR13 16). Appellant 

had been a client of his for approximately a year and a half by the time of 

trial (RR13 17, 21). During that time, Floyd conducted extensive 

investigation and preparation for appellant’s case, enlisting the assistance of 

two other attorneys, a paralegal, and an investigative service (See State’s 

MNT Exhibit No. 1, RR16 168). The investigative firm hired by Floyd 

conducted at least 23 audio interviews of potential witnesses. Among those 

interviewed were appellant, Joanna Briones, Ashley Rodriguez, Vielka Castro 

and her family, Christina Gonzales, Jonathan Briones, Destinee Briones, 

 

2 The jury in this first trial assessed punishment at a 10 year probated sentence for the 

injury to a child case and 7 years in the Institutional Division of the Texas Department of 

Criminal Justice for the aggravated sexual assault charge (RR16-164). Fisch filed a motion 

for new trial, which was granted on the basis that the jury received an exhibit which had 

not been introduced into evidence (CR 21-24) With Floyd representing him, appellant 

was actually acquitted of the aggravated sexual assault charges, but was sentenced to 

twenty years on the indecency with a child case (RR- RR9 8, RR10 190-191). Presumably 

unhappy with this result, appellant returned to his first attorney, Abraham Fisch, who 

filed a motion for new trial on the basis of ineffective assistance of counsel (RR16 160).
10

Katrina and Victor Pena, Kayla Darilek, the pastor of the church the family 

attended, and the jury foreman from appellant’s previous trial (State’s MNT 

Exhibit No. 1). That last interview proved quite useful, as Floyd was able to 

determine what witnesses the prior jury had found to be unhelpful, or even 

harmful to the defense (RR16 191, 228). After considering multiple 

defensive theories, Floyd decided that the best way to proceed was to limit 

presentation of evidence and focus on the fact that the State had not proven 

its case beyond a reasonable doubt (RR16 191-192). 

Decision not to Call Multiple Witnesses for the Defense

Appellant argues that his trial counsel was ineffective for failing to call 

certain witnesses, particularly Joanna Briones, appellant’s wife, Ashley 

Rodriguez, appellant’s step-daughter, and Johnathan and Destinee Briones, 

appellant’s children.

Contrary to appellant’s assertions, none of these individuals were 

witnesses to the actual offense, and could not contradict Lisa as to anything 

that happened the night in question, partly because nobody knew when that 

night in question was. Hale v. State, 140 S.W.3d 381 (Tex. App.—Fort Worth 

2004, pet. ref'd) (not ineffective assistance when potential witnesses had no 

personal information concerning accusations). In addition, defense counsel 

had learned that the jurors from the previous trial found appellant’s family 
11

members to be ineffectual and, because of the closeness of their relationship

with appellant, unbelievable witnesses (RR13 67). Most importantly, defense 

counsel was concerned about “extraneous kinds of personal character issues 

that I was afraid might be opened, no matter how well intentioned and well 

coached the witnesses were” (RR13 68). 

Trial Court was legitimately concerned that if these witnesses testified, 

their testimony could prove harmful (RR16-206). For example, Floyd was 

aware that the State had in its file an offense report where Joanna Briones 

called the police on appellant at a time very close to when the offense 

occurred and that this offense did not show appellant in a positive light 

(RR16 207). There was also evidence that Ashley Rodriguez had made an 

outcry regarding appellant inappropriately touching her, and that Joanna 

was aware of that allegation (RR16 208). 

Appellant also criticizes defense counsel for not calling Lisa’s treating 

psychologist who could testify about Lisa’s drug use and poor relationship 

with her father. Appellant, however, fails to mention that this witness was 

retired and living outside the jurisdiction of the court (RR16 174-175). In 

addition, defense counsel had talked to this witness; she was very hostile to 

the defense, believed the sexual abuse had occurred, and would have 
12

indicated that Lisa’s behaviors were likely the result of this abuse (RR16 

178-180).

Defense counsel also gave legitimate strategic reasons for not calling 

Officer Munez, the officer who took the initial report from Lisa’s parents, and 

Dr. Piece, an expert hired to examine the medical records for evidence of 

sexual abuse. Counsel explained that he avoided calling Munoz because the 

officer clearly wanted to help the state, and was willing to say that any 

inaccuracies in his initial report could have been due to his mistake in taking 

down the information (RR13 198). Dr. Pierce also did not appear to be a 

favorable witness, as he indicated to trial counsel that there was evidence in

Lisa’s medical records which would lead him to believe that sexual abuse had 

occurred (RR113 132).

In short, the trial court did not abuse it’s discretion in determining that 

trial counsel had a legitimate trial strategy for not calling any witnesses at 

the guilt/innocence stage of trial. Instead of presenting all these witnesses, 

the defense decided the best trial strategy was to argue that the State did not 

make its case.

3 When in counsel's reasonable judgment, a potential witness 

 

3 This strategy was apparent in trial counsel’s closing argument, where he explained to 

the jury that “we chose to shut it down because the State didn’t make their case.” (RR8 

25).
13

may be as dangerous as he or she might be helpful, it is not ineffective 

assistance of counsel not to call the witness to the stand. Damian v. State,

881 S.W.2d 102, 110 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd).

Decision not to Impeach

Appellant also contends that trial counsel was ineffective for failing to 

challenge Lisa’s credibility. Floyd explained that he extensively crossexamined Lisa, but that she did not make any major contradictions to her 

previous statements or testimony (RR16-194). Floyd and his staff had 

reviewed the transcript from the previous trial and were ready to address 

any inconsistences, but he did not feel it was effective to impeach Lisa with a 

transcript from the previous trial for small matters which did not go to the 

heart of the case (RR16 193-194). Instead, defense counsel was trying to 

build a rapport with the jury and his own credibility (RR16 193). The trial 

court, in denying appellant’ motion for new trial, found that this decision not 

to impeach witnesses on minor discrepancies was due to trial strategy, and 

that such strategy had a plausible basis in the record (RR17 13). 

The trial court ruled correctly on this issue. The decision not to 

impeach, particularly on minor matters, can be part of a reasonable strategy. 

See Davis v. State, 276 S.W.3d 491, 502 (Tex. App.–Waco 2008, pet. ref'd)

(recognizing counsel’s decision not to impeach witnesses may be “sound 
14

trial strategy.”) The fact that appellant was convicted (just was he was in the 

first trial), does not mean that this strategy was deficient. See Ex parte 

Ewing, 570 S.W.2d 941, 944 (Tex. Crim. App. 1978) (“The fact that another 

attorney may have pursued a different tactical course of trial is insufficient 

to support a finding of ineffective assistance of counsel.”). Sims v. State, 807 

S.W.2d 618, 624 (Tex. App.–Dallas 1991, pet. ref'd) (“[W]e cannot say that

failure to attempt impeachment was not sound trial strategy.”); Harris v. 

State, No. 01–88–00991–CR, 1990 WL 39468, at *4 (Tex. App.–Houston [1st 

Dist.] Apr. 5, 1990, pet. ref'd) (not designated for publication) (holding that 

failure to bring up inconsistent testimony and impeach witness may be 

sound trial strategy, because attempting to impeach may have been “more 

harmful” than beneficial to appellant). Davis v. State, 276 S.W.3d 491, 502 

(Tex. App. – Waco, pet. ref’d) (finding that the decision not to impeach

witnesses on deals they made with the State sound trial strategy). 

Decision not to Call Other Witnesses to Present Mitigation 

Testimony at Punishment 

Finally, defense counsel presented very viable reasons for why he did 

not call additional witnesses other than appellant’s sister, Oralia Schmidt, at 

the punishment stage of trial. Defense counsel explained that he had access 

to the State’s file, and was able to determine that the State was prepared to 
15

attack the credibility of several potential witnesses, most notably appellant’s 

wife and stepdaughter (RR10 160). The State also had evidence of other 

bad conduct that it was just waiting for a chance to introduce. Ms. Schmidt, 

however, was not aware of most of this conduct, so the prosecutor was not 

able to question her about it (RR10 161). 

For example, appellant suggests that defense counsel could have called 

appellant’s previous employers, as he worked as a bailiff in several courts. 

Defense counsel, however, explained that the letters of commendation 

regarding appellant’s work history as a bailiff were invalidated by more 

recent letters reprimanding appellant for his work history, leaving defense 

counsel to believe that it was better to avoid delving into appellant’s work 

performance in detail (RR16 196-197). 

As mentioned earlier, the decision whether to present witnesses is 

largely a matter of trial strategy. Shanklin v. State, 190 S.W.3d 154, 164 (Tex.

App.—Houston [1st Dist.] 2005, pet. dism’d). “Moreover, an attorney’s 

decision not to present particular witnesses at the punishment stage may be 

a strategically sound decision if the attorney bases it on a determination that 

the testimony of the witnesses may be harmful, rather than helpful, to the 

defendant.” Id. (citing Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.—

Houston [14th Dist.] 1989, pet. ref’d)). The trial court correctly found that 
16

trial counsel made a strategic decision not to call more than one character 

witnesses at the punishment stage of trial and was not ineffective (RR17 12-

13).

4

Conclusion

In short, defense counsel established through his testimony at the

motion for new trial hearing that he thoroughly prepared for this trial. The 

trial court found that each decision trial counsel made was a strategic one

calculated to help appellant’s case. Trial counsel’s trial strategy, which 

resulted in appellant’s acquittal in the more serious offense with which was 

charged, was to present minimal evidence, not antagonize the jury, and 

prevent damaging testimony from coming in. The trial court did not abuse 

its discretion in finding that these strategic decisions were reasonable and 

that trial counsel rendered effective assistance of counsel. See Strickland,

466 U.S. at 689. Appellant’s three issues are without merit, and the 

judgement should be affirmed. 



 

4 The trial court also found that appellant failed to establish that there was a reasonable 

probability that, but for trial counsel’s alleged errors, the results of the proceedings 

would have been different in either the guilt/innocence or punishment phases (RR17 15). 

In other words, appellant failed to prove either prong of the Strickland ineffective 

assistance of counsel test. 
17

PRAYER

The State respectfully requests that this Court affirm the judgment of 

the trial court.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/Kimberly Aperauch Stelter

KIMBERLY APERAUCH STELTER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

State Bar Number: 19141400

stelter_kimberly@dao.hctx.net
18

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument is being 

served by EFileTXCourts.Gov e-filer to the following email address

Daucie Schindler 

Assistant Public Defender 

1201 Franklin, 13th Floor

Houston, Texas 77002

Daucie.Schindler@pdo.hctx.net

/s/Kimberly Aperauch Stelter 

KIMBERLY APERAUCH STELTER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 274-5826

State Bar Number: 19141400

stelter_kimberly@dao.hctx.net
19

CERTIFICATE OF COMPLIANCE

 The undersigned attorney certifies that this computer-generated 

document has a word count of 4,374 words, based upon the representation 

provided by the word processing program that was used to create the 

document.

/s/Kimberly Aperauch Stelter

KIMBERLY APERAUCH STELTER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

(713) 274-5826

TBC No. 19141400

stelter_kimberly@dao.hctx.net