### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-03-00681- CR NO. 03-03-00686- CR

Le nn Wi lli an, App e lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 299TH JUDICIAL DISTRICT NOS . 90340 83 & 90340 84, H ONO RAB LE FRED A. MO ORE, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N Ap pe lla nt L e nn Willi an a

pp e a ls h is c on victio ns fo r b ur g lary of a ha bit a tio n w ith intent to commit arson and commit ting arson, Tex
. Pen. Code Ann. § 30.02(a)(1), ( d) (West 2003), and ar son. Id. § 28.02(a) (2), ( d)(2) . The jury found appe llant guilty

of ea ch off

ense. The trial c ourt fo un d that app e lla

nt ha d b e e n p re vio us ly

c on vic te d in

19 95 of a tte mpt e d b ur g lary

of a ha bit a tio n in Tom Gree n County , as alleg ed in the i n d ictment, and asse ssed punishment in eac h case atEa c h in dic tme nt a lle g e d the same thr e e pr ior c on vic tio ns fo r e nh anc e me nt o f p un ish me nt. 1 At the punishment phase of the trial for

both case s, appellant plea ded “t ru e” to the enhanc ement alleg ations. I n assessing punishment, the t rial court orally found, wit hout desig nation, that only one prior convic tion wa s to be used for enhanc ement. The formal judgme nts e ntere d in eac h case ref lect the pr ior c on vic tio n u til ize d a s th e 19 95 c on vic tio n fo r b ur g lary of a ha bit a tio n in

To m G re e n Co un ty in cause no. 065003651. The indi ctment allege d this conviction was one for attempted burg lary of a habitation, n o t burg lary . The a lleg ations are supported by proof. The formal judg ments are ref ormed to re flec t attempted burg lary of a habitation rathe r than burg lary
. The use of only one prior conviction is not ex plained in this recor d. An examination of eac h indictment ref lects t hat all t hree convictions occ urre d in 1995. For this rea son the t ime sequenc e re quired by section 12.42(d) , the habitual fe lony

statute probably

could not b e m et
. T ex. P en. Code Ann. § 12.42( d) (West 2003). Appellant’s punishment was enhanc ed under section 12.42(c) (l), Tex. Pen. Code Ann. § 12.42(c )(1) (West 2003). 2 confine ment in priso n fo r twenty -five year s. Another c ounsel was a ppointed for a

ppellant on 1 appea l. A motion for new tria l was filed, he ard, a nd overr uled. Notice of

appea l was g iven.
P oints of Error Appellant adva

nces te n points of err or. I n points one and two, appellant contends that both convictions cannot stand be cause of the violation of the double je opardy clause in the fede ral and state c onstitut ions. See U.S. Const. amends. Vand XIV; Tex. Cons t. art. I , §§ 13, 14 and 19. Poi nts of er ror th ree thr ou g h te n, in e ff e c t, c on te nd

that th e tr ia l c ourt

a bu se d it s d isc re tio n in
overr uling the motion for ne w trial. In points three, four , and five, appellant urg es that a new trial sh ou ld h a ve be e n g ra

nte d in lig ht o f n e wl y

dis cov e re d e vid e nc e . App e lla nt c ite s U .S. Con st. amends. V and XI V; Tex. Cons t. art. I , §§ 10 and 19; and Te x . Code Crim. Proc. Ann. ar t. 40.001 (West Supp
. 2 0 0 4-05). In points six and seve n, appellant c ontends that he should have been
a c c or de d a

ne w tri a l be c a

us e the State fa ile d to dis c los e e vid e nc e fa vo ra ble to h im i n v iol a tio n o f h is constitutional rights. He cites “U.S. Const. Amends. V and XI V; Tex. Cons t. art. 1, §§ 10 and 19.”3

I n points eight a

nd nine, appellant a sserts that he wa s denied the e ffe ctive assistanc e of tria l counsel
a s g u ar an te e d b y th e f

e d e r a l an d s tate c o n s ti tutions. See U.S. Co n s t. , a me n d s . V Ian d X I V ; T e x. Const. art. I , §§ 10 and 19. In his tenth and last point, appellant ge nera lly urg es that the trial c ourt
err ed in deny

ing his motion for a

new tria l based on the f

oreg oing c ontentions.
Do uble Je opa r dy Appellant contends that the convictions in both case s violate the doub l e j eo p ar dy clause s of the fe dera l and st ate constitut ions. Appellant brie fs these c ontentions toge ther. While he urg es that the Te x as Constitut ion c an be interpre ted to g ive g reater prote ction than the United States Con sti tut ion , h e make s n o ar g ume nt or sh ow ingthat th e Te xas c on sti tut ion a l do ub le je op ard y c la us e differ s in any

signific ant way from the Fifth Amendment to the United States Constitution. W e nee d not addre ss point of error two and conside r only

the double j eopardy

issue under the fede ral constitution. See E

x parte Grange r , 8 50 S.W. 2d 51 3, 51 5 n .6 (T e x. Cr im. Ap p. 19 93 ); Hutchins v. Sta te , 992 S.W .2d 629, 630 (Tex. App.—Austin 1999, no pet.).

The double jeopar dy prohibition of the Fifth Amendment repr esents a f undamental ide a l in our c on sti tut ion a l he ri ta g e and a pp lie s to the state s through th e F ourt e e nth Am e ndme nt. Benton v. Ma r

yl a nd , 3 95 U. S. 7 84 , 7 94 (1 96 9) . T he F if th A me ndme nt gua

ra nte e a g a ins t do ub le jeopar dy embodies t hree protec tions: ag ainst a second prosec ution for the same offe nse following
c on vic tio n, a g a ins t a

se c on d p ros ecut ion

fo r t he same of

fe ns e fo llo wi nga c qu itt a l, a nd a g a ins t multipl e punishments for the sa me offe nse. Il lin ois v . V

ita le , 4 47 U. S. 4 10 , 4 15 (1 98 0) ; Cervantes

v . S tat e , 8 15 S.W. 2d

56 9, 57 2 ( Te x. Cr im. Ap p. 19 91 ). Ap pe lla nt i nv ok e s th e thi rd

of the se protec tions. W hen a de fenda nt is convicted of two or

more c rimes in a sing le trial, only the third of4

the protec tions is i mplicated. Ex parte He rron , 790 S.W .2d 623, 6 2 4 (T ex . Crim. App. 1990); Du v all v . S tate , 59 S.W .3d 773, 777 (Tex. App.—Austin 2001, pet. ref ’d). Hutchins , 992 S.W .2d at 631-32 brie fly explains t he law in this are a:
When the same act or transac tion violates two differ ent penal statutes, the two of fe ns e s are the same fo r do ub le je op ard y purp os e s if on e of

the of fe ns e s c on ta ins a ll the e le me nts of

the oth e r; the y

are no t the same if e a c h of fe ns e ha s a

un iqu e e le me nt. See B lockb urger v. United States , 284 U.S. 299, 304, 52 S. C t. 180, 76 L . Ed. 306 (1 93 2) . T he do ub le je op ard y g ua ra nte e a g a ins t mu lti ple punis hme nts fo r t he same offe nse does no more than preve nt g reater punishment than the leg islature intended. See M issouri v. Hunter , 459 U.S. 359, 366, 103 S. C t. 673, 74 L
. Ed. 2d 535 (1983); Ex parte Kopec ky , 821 S.W .2d 957, 959 (Tex. Crim. App. 1992). Absent a c lear in d ic a ti o n o f c o n tr ar

y le g is lati v e in te n t, it is p r e s u me d th a t th e le g is lature did not intend to authorize multi ple punishments for two offe nses that are the same unde r the Blockburge r

test. See W

halen v. United States , 4 4 5 U
. S
. 6 8 4 , 6 9 1

- 9 2 , 10 0 S. Ct. 1432, 63 L . Ed. 2d 715 (1980). Ap pe lla nt a rgue s th a t bo th o ff

e ns e s ar os e fr om t

he same tr ans a c tio n, inc ide nt, a c ts, and conduc t. The undis p u t ed evidence shows that the of fense s occur

red on the same date in the same plac e, the ha

bitation of Gena

Boswe ll, during a

single transac tion or incident. The jury found appellant guilty

of ar son of a habitation as char g ed in trial cour t cause number 9034084, a nd in the joint trial also by

its ve rdict found him guilty of burg lary of a ha bitation by

enter ing a

nd committing the fe lony offe nse of arson in tr ial court number 9034083. We need not elong ate our discussion for the State has confe ssed error and ag ree s that the doubl e jeopardy clause of the F ifth Amendment has been violate d by

multipl e punishments. No rm a lly , whe n the de fe nd ant is co nv ic te d of two of fe ns e s in viola

tio n of the do ub le jeopar dy prohibitation, the conviction for the offe nse with the most serious punishment is retained5

and the other conviction is set aside. Se e Lan de rs v . S tate , 957 S.W .2d 558, 560 (Tex. Crim. App. 1997). He re, how ever , both offense s are first degr ee f elony offe nses enha

nced by a prior f elony conviction. B oth p ar t i es have reque sted that the ar son conviction be re tained and the burg lary conviction be va cate d and that ca use dismiss ed. I t is so ordered. T he first point of er ror is sustained.
Bac kgr ound We shall discuss the fac t s i n o rd er to plac e the other points of error

in proper perspe ctive. Robert Ming , a city of P flug erville firefig hter, arrived at 1720 Wells Branc h Parkwa y in the ear ly morning hours of November 30, 2002. Going to the second f loor apa rtment, Ming f

ound the door ha d been ope ned by a sher iff’s de puty
. Smoke filled the apartment, and the visibil ity was poor. The in- house sprinklers ha d exti ng uished the fire. Therma l imag ing show ed a “ hot spot” on
a couc h indicating the orig in of the fire . There was damag e to the couc h, and the c eiling w as cha rre d beca use of the he at.

Dennis Ha as, a Tr avis County Fire Marsha l, arr ived at the s cene about 3: 30 a.m. The fi re wa s o ut a

nd it h a d b e e n c on fi ne d to the c ou c h and a sma ll a re a of the c arp e t in sid e the a

pa rtme nt. Haa s, qualified as a

n expert, opined that the fire had bee n started on the ba ck of the couch a nd was not acc idental. An empty bottle of veg etable oil wa s found on the couc h, which Ha as believe d was the accele rant. A burnt match and matchbook wer e found ne ar the patio entry . Haa s believed the
ma tc h w a s th e so ur c e of

the fi re . Are ar w ind owin t he a pa rtme nt had a “ver y roun d” ho le in i t consistent with an impact ty p e fr acture. Most of the window g lass fell inside the apa rtment. The window had been unlocked and entr y into the apar

tment had bee n obtained fr om the balcony patio.6 L ater Haa s took written statements from Ge na B oswell, whose ha bitation was involved, and from Marvina Birdw ell, appellant’ s sister. On Dec ember 1, 2002, Boswe ll gave Ha as a numbe r o f i t ems which had be en take n from her apar tment and later

found appr ox imately

100 yar d s b e h i n d

t h e a p art m e n t“ b u r i e d

i np l a i ns i g h t
. ” O n e o f t h e i t e m s w a s a r o u n d m ar b l e a s h t r ay, which had be en on the ba lcony patio and could have bee n used to brea k the window. The a shtray

and other items were not chec ked for fing erpr ints. Severa l bottles failed to reve al usea

ble prints. The spot of blood found on the patio was not te sted. The items discover ed outside appea

red to have been handled by a number of individuals a fter the fire. H aas le arne d that appellant had once lived in the apar tment and finding his preser ved fing erpr ints mi g ht have pr oven meaning less. Ge na

B os we ll t e sti fi e d th a t sh e be g an a n in tim a te re latio ns hip wi th a pp e lla nt i n July 2000. About two y ear s later they moved to 1720 Wells Br anch Par kway , residing first in a g round floor apar tment and then moving to the second f loor apa rtment. They

separ ated in Oc tober 2002. B os well contin

ue d to liv e in t

he a pa rtme nt. Ap pe lla

nt s ou g ht u

ns uc c e ssf ull y to r e c on c ile late r i n October . Appellant ca lled Boswe ll ag ain in ear ly November

and dema

nded “ha lf of the c ouch and half of the stuff” a s it belonge d to h i m . Boswe ll refuse d beca use she ha d made a

majority of the pay ments on the items. Appellant ca lled ag ain and thre atene d her w it h co u rt ac t ion over the proper ty
. L ate in Nove mber 2002, B oswell locked and secur ed the apartment. She did not set the burg lar a larm . T he a sh tr ay wa s o n th e ba lc ony

patio . B os we ll l e ft

to sp end Th ank sg ivi ngin Houston with her fa

mily
. On December 1, 2002, she observed that appe llant had ca lled her on he r7

cell phone a

t 2:30 a.m. but left no messag e. She had a “fe eling ” the a

partment ha d been se t on fire. She lat er re ce i v ed a telephone messa g e fr om a State Troope r that there had bee n a fire in her apar tment. Boswe ll returned home that day and found the couch burned and that someone ha d taken he r bottle of blea ch and pour ed it over he r clothes lea ving white spots. She d i s co v ere d a number of items missing f rom her a partment includingthe ashtra y , a ce ll phon e bil l, birth control pil ls, a TV re mot e c on tr ol, a po rt a ble ph on e , DV D mov ie s, an a ns we ri ngma c hin e , a

pic tur e a lbum, and a ha lf-full bot tle of wine taken fr om the ref rig erator. L ater

these items and other s were found in a dit c h be hin d the a

pa rtme nt. Th e wi ne bo ttl e wa s e mpt y and he r s te a k k

nif e wa s “ sta

bb e d in to the g ro un d. ” She a lso fo un d h e r j e we lr y bo xes i n th e dit c h. B os we ll g a ve a wri tt en st ateme nt t o Haa s. Marvina B irdwell, appe llant’s sister, testified that about 2 a .m. on November 30, 2002, she was awa

kened by a phone call from appellant; that he aske d to be picked up; a nd that he was north of

wher e she lived. In response to Birdwe ll’s q u es t i ons, appellant stated that he was at Boswe ll’s place, ha d taken what was his, and had “t o rc h ed the place .” B irdwell starte d to ge t dresse d, but called a

ppellant and told him that she would not pick him up. S he then c alled 911 and repor ted the fire
. On cross-e x amination by appellant’ s trial counsel, B irdwell admitted that it had bee n a long day and that she was tired and aslee p when appellant t elephone d. She descr ibed appe llant as upset, scre aming “something ” about the apar tment being on fire a

nd about his stuff. She admitted th is was dif

fe re nt t ha n h e r “ tor c he d” langua g e us e d e arl ie r o n d ir e c t e xami natio n. B ir dw e ll8

explained that when s h e gave a wr itten statement to Haa s, he told her that he “had the g oods on appellant.” Birdw ell stated that it wa s Haa s who attributed to a ppellant using the specific terms, “I torche d the place and took my stuff out.”
Motion for New Trial Appellant filed a motion for new trial g ener ally based on the same subject matter a s the points of err or adva

nced. T he trial c ourt ac co rd ed appellant a hear ing on the motion and
ov e rr ule d it . Muc h of the e vid e nc e of fe re d w ill be dis c us se d in our d isp os iti on

of dif fe re nt p oin ts of error. Appellant’s trial counsel, the trial prosec utor, appe llant’s sister Bir dwell, and his brother , B ru c e Willi an, a ll t e sti fi e d at th e he ari ng . Ap pe lla nt intro du c e d pro batio na

ry c on dit ion

21 fr om a prior convic tion for re taliation orderinga psy cholog ical examination, a nd the re sulting re port of Dr
. F e rrer a of Au g us t 19 94 re fl e c tin g a pp e lla nt h a d “ bo rd e rl ine pe rs on a lity dis or de r. ” Th e re po rt

did not refle ct a f

inding of a bipolar me ntal disorder. The Travis County jai l m edical rec ords for appellant f

rom the time of his arr est until trial were introduced into evide nce. At the hea ring , Br uce Willian, who had not testified at trial, related that on Novembe r 29 , 2 00 2, a

pp e lla nt t eleph on e d h im f

ro m B arn e y ’s B ar a

nd that he joi ne d a

pp e lla nt t he re a bo ut 6 p . m . Ap p el l an t wa s dri n k i n g ru m b u t b ega n dri n k i n g b ee r wh en Br u ce arri v ed
. L at er i n t h e e v en i n g,
a pp e lla nt a nd B ru c e and

fr ie nd s mo ve d to the Cana ry Roo st B ar whe re the y

c on tin ue d to c on sume
a lc oh oli c be ve ra g e s. B ru c e e xpla ine d that a pp e lla nt wa s de pr e sse d be c a

us e he ha d b ro ke n u

p w ith his girlf riend, lost his job, and had his car reposse ssed that day
. Br uce r eporte d that appellant lef t the last bar on f

oot about 1 a.m. on November 30, 2002, befor e the commission of t he alleg ed ar son offe nse.9 Marvina B irdwell, the sister, testified at the he aring , this ti me for a ppellant. Without g iving her educational ba ckg round, Birdw ell stated that she had worke d at the Austin State Hospital fo r t we lve y e ars and

ha d s ixty ho ur s o f t ra ini nge a c h y e ar. She re late d th a t sh e wa s a c e rt if ie d h e a lth
car e prof essional. S h e wa s n o t a psy chiatrist or a psy cholog ist and had not ca red f or or tre ated appellant. She wa s permitted to testify that appellant ha d b ee n d i ag nosed as be ing a “borde rline persona lity ,” suff

eringfrom a bipolar

disorder a lo n g with a schizo-aff ective disorde r. I t was her opinion that bipolarism alone could lead to psy chotic episode s where th e i n d ividual would not understand the differ ence betwee n rig ht and wrong
. Birdw ell stated that appellant knew that he had the se me nta l ill ne sse s bu t did no t take any me dic a tio n wh e n no t c on fi ne d, bu t se lf -m e dic a te d w ith alcohol. She stated that appellant was an alcoholic and that on some day s he drank a twelve- pack of bee r and a

fifth of rum. He r knowledg e of a ppellant’s cond ition and acts ca me as a result of family relationships. There wa s no showing that app el l ant had been found by any medical e x pert not to know the differ ence betwee n rig ht and wrong
. Birdw ell ag ree d that if a doc tor said appe llant kn e w t he dif

fe re nc e be tw e e n r ig ht a

nd wr on g , s he wo uld

no t di sp ute it. B ir dw e ll s tate d th a t th e ir mother had a

nervous br eakdow n and burne d a house a nd that their father wa s an alc oholic. At the hea

ring on the motion f

or new trial, appe llant’s counsel on a ppeal attempted to ge t Birdwe ll to cl ar i fy

her tria l testimony

about appe llant’s telephone c all in the ear ly morning hours of Nove mber 30, 2002. Bi rdwell admitt ed that she w as drunk whe n she we nt to bed at midnight and wa s in a dee p sleep whe n appellant c alled. She did not chang e her trial tes t imony about their c onversation.For a history of the fore runner s of ar ticle 40.001 of the Te x as Code of Criminal Proce dure, 2 former Texas Rule of Appellate Procedur e 30(b)(6) (West 1992) and former code a rticle 40.03, a

nd the four- part test, see 43A Geor g e E. Dix & Robert O. D awson, Texas Practice : Criminal Practice 10 We t ur n n owto t

he po int s of e rr or

wh ic h c omp la in o f t

he tr ia l c ourt ’s e rr or

in
overr uling the motion for a

new tria l. I n revie wing a trial court’s de cision in overrulinga motion for
new trial, an appellate court applies an a buse of discr etion standard, Le wis v . S tate , 911 S.W .2d 1, 7 (Tex. Crim. App. 1996), State v. Gonzales , 885 S.W .2d 696, 696 (Tex. Crim. App. 1993). Newly Discovere d Evi dence Ap pe lla nt’ s p oin ts o f error thr e e , f our, and fi ve re late to t

he c la ime d e rr or

in
overr uling the motion for ne w trial on the ba sis of newly discovere d evidenc e. Ar tic le 40 .0 01 of

the Cod e of

Cr imi na l Pr oc e dure pr ov ide s:
A new tr ial shall be gra

nted an acc used whe re material e vidence favor able to the acc used has be en discove red since trial.
Tex. Code Crim. P roc. A nn. art. 40.001 (West Supp. 2004-05).

There is a four-par

t test under this statute. A def endant is entitled to have his moti on fo r n ew t rial g rante d if (1) the newly discovere d evidenc e wa s unknown to him at the time of the tr i al ; (2 ) h i s failure to discover the ne w evidenc e wa s not due to the lack of due dilige nce; ( 3) the
new e vidence is admissibl e and not mer ely cumulative, cor

roborative, collater al, or impea ching ; and (4) the new evidenc e is pr obably true a nd will probably

bring about a diff

ere nt result. See W

allace

v . S tat e , 1 06 S.W. 3d

10 3, 10 8 ( Te x. Cr im. Ap p. 20 03 ); Ke e te r v . S tate , 7 4 S. W. 3 d 3 1 , 3 6

- 3 7 ( T e x. Crim. App. 2002). A fa ilure by a def endant to esta

blish any of the essential re quirements for a new 2an d Pro c e du re § 4 1. 41 (2 d e d. 20 01 ); Ke e te r v . S tate , 74 S.W .3d 31, 36-37 (Te x . Crim. App. 2002). The e arlier

test also set forth four

require ments befor e a de fenda nt was entitled to a new trial based on ne wl y dis c ov e re d ev ide nc e : (1) the e vid e nc e mus t hav e be e n unk no wn to the mov ant b e fo re tr ia l; (2 ) t he de fe nd ant’ s f

a ilu re to di sco ver it w a s n ot d ue to a wa nt o f d ili g e nc e on

his pa rt ; ( 3) its materia lity

was such as would probably bring about a differ ent result in another trial; and (4) it was competent, not mere ly cumulative, corroborative, collater al, or impea ching
. Se e Dr e w v . S tate , 743 S.W. 2d 20 7, 22 6 ( Te x. Cr im. Ap p. 19 87 ); Bo y e tt v . S tate , 692 S.W .2d 512, 516 (Tex. Crim. App. 19 85 ); se e als o Moo re v . S tate , 88 2 S.W. 2d 84 4, 84 9 (T e x. Cr im. Ap p. 19 94 ); J on es v . S tate , 711 S.W. 2d 35 , 3 6- 37 (T e x. Cr im. Ap p. 19 86 ); Bo lde n v . S tate , 6 34 S.W. 2d

71 0, 71 1- 12 (T e x. Cr im. App. 1982). Withthe pa ssa g e of

art icle 40 .0 01 , th e L e g isl a tur e c lari fi e d o ur ru le by e xplic itl y stating a materia lity require ment. The only differ ence betwee n the new statute and our former rule appea

rs to be that the [new] statute expressly require s the discover ed evidenc e to be “ materia l” while the wor d “mater ial” wa s omitt ed fr om the rule. Keeter , 74 S.W .3d at 36. 11 trial based on ne wly

discovere d evidenc e war rants the tria l court’s de nial of the motion. Shafter v. Sta te , 82 S.W .3d 553, 556 (Tex. App.—San Antonio 2002, pet. ref ’d).
Evid ence U nkn own to Movant Before Tr ial The fir st require ment of the four -par t test is that the movant for a ne w trial based on newly discovered ev idence must show that he was una war e of that evidence befor e the tria l conclude d. Appellant conte nds that he wa s unawa re that he suffe red f

rom a menta l disease or de fe c t th a t r e nd e re d h im una ble to t e ll the difference betwe e n r ig ht a nd wr on g or to c on fo rm

his behavior there to at the time of the off ense. A ppellant’s trial c ounsel testified at the hear ing on the motion for a new

trial that, just before appellant’ s sister, Marvina B irdwell, testified for the State at the g uilt/i nnocenc e st ag e of the t rial, appellant informed him for the first time that appellant suff ere d12

from a mental bipolar di sorder
. Counsel related t hat he was unaware prior to that time that appellant ha d a ny me nta l di so rd e r a

nd that a pp e lla nt a pp e are d lu c id a

nd no rm a l to him

in al l of hi s consultations with appellant. On c ross-examination, counsel elicited f rom Bir dwell that appe llant
was a n excitable person, wa s clea rly u p s et wh en he telephone d Birdw ell in the ear ly hours of November

30, 2002, and that appe llant took lit hium carbonate for his bipolar disorder. A ppellant used this evidence in his arg ument befor e the tria l court on the issues of punishment.

Ap pe lla nt c la ims that th e e vid e nc e c a me too late to p ro pe rl y pr e se nt i t a s a

de fe ns e of ins anit y or to us e it e ff

e c tiv e ly in the mit ig a tio n of punis hme nt. Th e pr ob le m th a t pr e se nts its e lf at the outset is the fac t that if appellant suff ere d from a bipolar

disorder, it wa s known to appellant fo r som e tim e pr ior to tr ia l. Th e fa c t tha t app e lla nt ch os e no t to re ve a l it to his a tto rn e y un til late in the trial re sulting in only

a brie f re fer ence to the matter in testi m o n y does not rende r the e vidence unknown to the def

ense.
The c ourts reg ard the defe ndant and his or her attorney s as a “knowledg e unit ” so t hat what is known to one is kn o wn to all for pur poses of de termining whether the evidenc e wa s known befor e trial. Thus, if the defe ndant knew of the e x istence a nd ide nti ty of a wi tne ss b ut f

a ile d to te ll h is or he r attor ne y of that fa c t, it is no t ne wl y di sco vered e vid e nc e that th e a tto rn e y le arn s o f t

his inf or matio n o nly

a ft e r t ri a l. Simi larl y , if

the e vid e nc e wa s k

no wn to o ne of

two defe ns e a tto rn e y s, that is sufficie nt to prevent it from be ing ne wly discovere d as t o the other attorney who lear ns of it after

trial.
43A Geor g e E. Dix & Robert O. D awson, Texas Practice: Criminal Practice and Proce dure § 41.42 (2 d ed
. 2 0 0 1 ) ( ci t i n g Sa wy e r v. S tate , 7 78 S.W. 2d

54 1, 54 5 ( Te x. Ap p. —Co rp us Chr ist i 19 89 , p e t.
re f’ d) ; Zam ora v . S

tate , 647 S.W .2d 90, 94-95 (Te x . App.—San Antonio 1983, no pet.)).13 I n Tho ma s v. S

tate , 31 S.W .3d 422, 427 (Tex. App.—For t Worth 2000, pet. ref’d) , the cour t stated: “I t has bee n held that a trial court doe s not err in ove rruling defe ndant’s motion for
ne w tri a l ba se d o n n e wl y

dis c ov e re d e vid e nc e wh e n the de fe ns e kn ow s abo ut ev ide nc e be fo re tr ia l, b u tch o o s es n o tt o i n fo rm h i s at t o rn ey ab o u ti t
. ” ( ci t i n g Sawyer , 7 78 S.W. 2d a t 54 5; Zam ora , 647 S.W .2d at 94). Se e als o V illarre al v . S

tate , 79 S.W .3d 806, 813 (Tex. App.—Corpus Christi 2002, pet. ref ’d) (evide nce that defe ndant was with his mother and sister at time of burg lary cannot have b ee nu n kn o w n t o d ef

en d an tb ef

o re t ri al ). M o re o v er , t h e p ro b at i o n ary co n d i t i o n2 1 o rd er i n g a psy cholog ical examination was a pa rt of the pe n packe t of a prior conviction introduce d at the penalty stag e of the trial. Ther e wa s no showing that appellant wa s unawa re of t h e condition imposed on him or t hat he was unaware of hi s examination by Dr. Ferr era . Fur ther, a ppellant knew he wa s being treated at the county jail and that re cords we re be ing ke pt. Evidence that appellant wa s with his brother t he night befor e the offe nse cannot have be en unknown to appe llant. Sti ll further, the fa ct that his si s ter ha d worke d for se vera l y ear s at the Austin State Hospital cannot have bee n unknown t o appellant. Appellant has not sustained t he first prong of t he four-par t test and shown that th e c la ime d “ ne w” e vid e nc e wa s unk no wn to h im befo re th e tr ia l c on du c te d. Th e fa ilure to establish the first esse ntial require ment of four -par t test eliminates the nece ssity of di s cu s s i n g the other re quirements. Points three, four and five are overr

uled.
Br adyv. M ar yla nd I n points six and seve n, appellant urg es that the trial cour t erre d in denying his ne w tr ia l moti on bas ed on

the State ’s fa ilure to d isc los e e vid e nc e fa vo ra ble to h im i n v iol a tio n o f h is f e d e r a l an d

s t a t e c o n s t i tu t i o n a l r i g h t s . H e c i t e s U
. S
. C o n s t
. a m e n d s . V an d X IV ; T e x . C o n s t
. art
. I,14

§ 1 9; Brady v. M

aryland , 3 73 U. S. 8 3, 87 (1 96 3) ; Ex parte Adam s , 9 68 S.W. 2d 28 1, 29 3 ( Te x. Cr im. App. 1984). Brady held t hat t he suppression by the prosec utor of evide nce f avora ble to an ac cused violates due proc ess wher e the e vidence is material either to guilt or to punishm ent, irre spective of the g oo d f

a ithor the ba d f a ithof the pr os e c uto r. 37 3 U .S. a t 87
. Thus , a pr os e c uto r is r e qu ir e d to disclose to an ac cused material infor mation that is ex culpatory
. I n p os t- Bradycase s, the Supreme Court has he ld that t h e d uty to disclose such evidenc e is applicable even though there is no reque st by the ac cused, Un ite d S

tates v . A gu rs , 427 U.S. 97, 107 (1976), and the duty encompasses impeac hment evidenc e as w ell as exculpatory evi d en ce. United States v. Bagley , 473 U.S. 667, 676 (1985). More over, the Bradyru le encompa sses evidenc e “know n only to police in vestig ators” a nd not to the prosecutor
. Kyles v. W hitley , 514 U.S. 419, 438 (1995). I n order to comply

with Brady , the individual prosecutor has the duty to learn of

any favor able e vidence known to other s ac ting on the g overnme nt’s behalf in the
case . Id . at 437. Norma lly , a thre e-pa rt test is used to evaluate whether a due pr ocess violation has
occur red: (1) the State fa iled to disclose evidenc e re g ardle ss of the prosecution’s g ood or bad f aith; (2) the w ithheld evidence is favora ble to the def

endant; and (3) the evidenc e is material, i.e., there is a rea sonable proba

bility that had the evidenc e bee n disclosed, the outcome of the trial would have been dif fer ent. Ha mp ton v . S

tate , 8 6 S. W .3 d 60 3, 612 ( Te x. Cr im. Ap p. 20 02 ); Ex pa rte Richardson , 7 0 S. W.3 d 8 65 , 8 71 (T e x. Cr im. Ap p. 20 02 ); Litt le v . S tate , 9 9 1 S. W. 2 d

8 6 4 , 8 6 6 ( T e x. Crim. App. 1999). The que stion is “not whether the de fenda nt would mo re l i k el y t h an not have
re c e ive d a

dif fe re nt v e rd ic t w iththe e vid e nc e , b ut whe the r i n its abse nc e he re c e ive d a fa ir tr ia l,15

understood as a

trial resulting in a ver dict worthy of conf idence .” Kyles , 5 14 U. S. at 43 4; se e als o C o o k v . Stat e , 9 4 0 S.W .2d 623, 627 (Tex. Crim. App. 1997) (conf idence in the “outcome” ). The defe ndant bea

rs the burde n of makingthis showing in li gh t o f all t he evide nce, if the prosec ution fails to make a

timely disclosure. Hampton , 86 S.W .3d at 612. I n his moti on for a

new tria l, appellant alleg ed that the State f ailed to disclose bef

ore trial exculpatory

favor able e vidence that appellant ha d been dia g nosed as suff eringfrom “me ntal illnesses, diseases, de fec ts or disabiliti es” a nd that over ei gh t y ea rs befor e trial a psy cholog ical examination had been or dere d for a ppellant. The r ecor d at the hea ring ref lects that probat i o n ary condition 21 was part of an order defe rringadjudication of guilt entered in c ause no. 0942646 in the 299th District Court of Travis County in 1994, wher ein appellant was char g ed with the offe nse of reta l i at i o n . T h e eventua l conviction in this case wa s one of the pr ior convictions alleg ed for
e nh anc e me nt o f p un ish me nt. Th e c on dit ion sim ply state d: “O utp a tie nt A lc oh ol/ Dr ugTr e a tme nt. Psy cholog ical examination and follow all re commended tr eatment.”

At the hear ing on the new trial motion, appe llant of fer ed from the county

probation office rec ords a r eport of a n examination by

Dr. Matthew Fe rr er a d ated August 1, 1994, which resulted f rom condit ion 21. The re port found appe llant “appe ars to suff er f rom a borde rline persona lity

disorder.” I t further

descr ibed appe llant as an a g g ressive individual who tends to ac t impulsi vely . The report recommended that those supervising him should confront him for “ acting out.” I t appea

rs t hat appellant was in the county jail afte r hi s arr est in the instant case. A t the hea ring on the motion for new tr ial, appellant’ s m ed i ca l re co rds at the jail we re introduc ed.The prose cutor testified that he saw a n order defe rringadjudication of gu i l t in the pen 3 p ac k et b u t d i d

n o tex am i n e t h e d o cu m en ti nd ep t h an d wa s u n aw ar e o f aco n d i t i o n2 1 o rd er i n g a psy cholog ical examination. 16 These r ecor ds ref

lect that appe llant was ag itated and de presse d and had be en diag nosed with a bipolar mental disorde r and that a doctor ha d presc ribed c erta in medications for the condition.

The prose cutor who trie d the ca se testified at the new tria l hear ing. He did not have po sse ssi on

of any of the c la ime d und isc los e d it e ms exc e pt p ro batio na ry c on dit ion

21 c on ta ine d in one docume nt in the pen packet of three prior convic tions alleg ed in the indictment. The pr osecutor 3
re la ted th at no rm a lly

he or an inve sti g a tor

wo uld c he c k ja il r e c or ds and

pr ob a tio na

ry re c or ds , if applicable , of a de fenda

nt about to be tried. He could not rec all having done so in the instant case
. His file on the instant ca se did not ref lect that he ha d ob t ai n ed an y o f those rec ords althoug h he
secur ed the prior conviction rec ords. The first knowledg e the prosec utor had of appe llant’s bipolar mental condition was whe n appellant e licited that information at trial.

Although not ne cessa

ry , no Bradymotion was filed and no specific reque st was made by appellant directing the S tate to any particula r ty pe of e vidence . Appellant’s tria l counsel testified at the hea ring that the State had g iven him ever y thing he reque sted. The Bradyrule doe s not apply when a defe ndant is alrea dy

awa re of the information. Se e Agur s , 4 27 U. S. at 10 3; Ha

y es v . S tate , 8 5 S. W.3 d 8 09 , 8 15 (T e x. Cr im. Ap p. 20 00 ); Ha v ar d

v . S tat e , 8 00 S.W. 2d 19 5, 20 4 ( Te x. Cr im. Ap p. 19 80 ); J ac k so n v . S tate , 5 5 2 S. W. 2 d

7 9 8 , 8 0 4 ( T e x. Crim. App. 1976) (no duty to disclose under Bradywh er e i nformation wa s alrea dy to defe ndant). Her e, appe llant was aware of hi s bipolar m ental condition, belatedly told his counsel, and evidenc e17

was produc ed at tria l. The Bradyrule wa s not applicable to the c ounty jail rec ords re flec ting the
same inf or matio n a pp e lla nt e lic ite d at tr ia l. As to p r o b a ti o n a

r y c o n d it io n 2 1 , w e o b s e r v e th a t th e in d ic tm e n t p u t a p p e ll an t on notice that the pr ior conviction for reta liation would be used to e nhance punishment. Conditi on 21 was pa rt of the public r ecor d of that conviction. Normally , probationar y conditions are se rved on a def endant at the t ime of probation. Appellant does not claim t hat he was una war e of the condition which mer ely

order ed a psycholog ical examination. There is no ge nera l public rec ords exception to the Bradyrule. Chavis v . North C arolina , 6 37 F .2 d 2 13 , 2 25 (4 th C ir . 1 98 0) ; Da lbo ac o v . S tate , 978 S.W .2d 236, 238 (Tex. A pp.—Texarkana 1998, pet. re f’d) . Documents, howe ver, that are a par t of public re cords a

re not de emed suppre ssed by the State if def

ense c ounsel should know of them and fa ils to obt ain the re cord be cause of a la ck of dilig ence in his i n vestig ation. United States v. Payne , 6 3 F .3 d 1 20 0, 12 08 (2 nd Cir . 1 99 5) ; Dalbosco , 978 S.W .2d at 238. Appellant conte nds th at disclosure of c ondition 21 would have led him to the
re su lt inge xami natio n b y Dr . F e rr e ra

in 1 99 4, a

pa rt of the Tr a vis County

Pr ob a tio n Re c or ds
. Appellant make s no claim that he doe s not rec all the ex amination or was unawar e of D r. F err era ’s conclusions. The r eport wa s more dama g ing tha n favor able to appe llant. I t did not conclude that appellant suff

ere d from bipolar disorde r or a ny mental condition save “ border line persona lity .” I f t h e Bradyr

u le w a s a

p p li c a b le h e r e , a

p p e ll an t h a s n o t s u s ta in e d h is b u r den. Evidence is material only if there is a rea sonable probability that, had the e vidence been disc losed to the defe nse, the result of the proce eding would have be en diffe rent. Strickler v. G reene , 5 27 U. S. 263, 280 (1999). The mere possibili ty that an item of undisclosed e vidence might have h elped aA claim of ine ffe ctive assistanc e of c ounsel ca n be deve loped in a hear ing on a motion for 4 new tria l. Se e Re

y es v . S tate , 849 S.W .2d 812, 815 (Tex. Crim. App. 1993).

18 defe ndant or mig ht have a ffe cted the outcome of the trial does not establish materia lity
. Grave s v. Coc k re ll , 351 F.3d 143, 154 ( amende d on reh’g) , 3 51 F .3 d 1 56 (5 th C ir . 2 00 3) ; In ess v . S tate , 606 S.W .2d 306, 310 (Tex. Crim. App. 1980) (re fused to construe the due proce ss r equire ment of Brady to compel the disclosure of evide nce that would be onl y g ener ally useful to def

ense c ounsel). See als o La gr on e v . S

tate , 9 42 S.W. 2d

60 2, 61 5 (T e x. Cr im. Ap p. 19 97 ). Th e tr ia l c ourt did no t a bu se its discretion in overrulingthe motion for new tr ial based on a claim that the Brady rule was violated. Points six and seve n are overr uled.
Ineff ect ive Assistance of Counsel Another ba sis for appe llant’s motion for new tria l was tha t h e w a s d enied the e ffe ctive assistance of trial counse l. I n points of error eig ht and nine, appellant contends that the trial cour t 4
err ed in over

ruling his n ew tria l motion on t his basis. Appellant claims that his trial counsel wa s ine ff e c tiv e be c a

us e of his fa ilure to a de qu a te ly

inv e sti g a te the fa c ts, int e rv ie w witne sse s, fa ilure to reque st a mental hea lth ex pert to examine appe llant, and fa ilure to prese nt evidence of appe llant’s mental condition.
The Stand ard of Review

The Six th A mendment to the United States Constit ution gua rante es the rig ht to the eff ective a ssistance of c ounsel in a state c riminal proce eding
. McM ann v. Richardson , 397 U.S. 759, 771 n.14 (1970); Ga rc ia v . S tate , 57 S.W.3 d 436 , 440 (T e x. Cr im. Ap p. 20 01 ); W ilk e rso n v . S tate ,19

7 2 6 S.W .2d 542, 548 (Tex. Crim. App. 1986). I n Strickland v. W ashington , 4 6 6 U .S. 668, 689 (1 98 4) , the Un ite d State s Sup re me Court he ld that in or de r to sh ow ine ff e c tiv e a ssi sta

nc e of c ouns e l, a convic ted def

end an t m u s t s how that (1) his trial c ounsel’s per formanc e wa s deficie nt, in that counsel made such ser ious error s that he w as n o t functioning eff ectively as counse l; and (2) the defic ient perf

ormanc e pre

judiced the defe nse to suc h a deg ree that the defe ndant was de prived of a fair tr ial. I n this connection, a strong pr esumption ex ists that counsel rende red a dequate assistance and made all signific ant decisions in the exercise of rea sonable prof

essional judg ment. “Prejudice ” is demonstrated whe n the convicted defe ndant shows “a rea sonable proba

bility that but for counse l’s unprofe ssional error s, the result of the pr ocee dings w ould have be en diffe rent.” Id . at 694. A
rea sonable proba

b i l i t y i s a probability

sufficie nt to undermine conf idence in the outcome. Id .; Pa rm e r v . S

tate , 3 8 S. W.3 d 6 61 , 665 (T e x. Ap p. —Aus tin 20 00 , p e t. r e f’ d) ; Ba nk

s v . S tate , 819 S.W. 2d 67 6, 68 1 ( Te x. Ap p. —Sa n A nto nio 19 91 , p e t. r e f’ d) . U nle ss a de fe nd ant m a kes bot

h sh ow ing s, it c ann ot be sa id that the c on vic tio n re su lte d fr om a br e a kd ow n in the a dv e rs ary pr oc e ss that rende rs the re sults unreliable. Strickland , 4 66 U. S. at 68 7; Oe str ic k v . S tate , 939 S.W .2d 232, 237 (Tex. App.—Austin 1997, pet. ref ’d). Unde r Strickland , a def endant ha s the burden to pr ove a cla im of ineffe ctive assist ance of counsel by a pre pondera nce of the evidenc e. Mc

Fa rla nd v . S tate , 92 8 S. W.2 d 4 82 , 5 00 (T e x. Cr im. Ap p. 19 96 ); Parmer , 38 S.W .3d at 665.

The two-prong ed standard for testing claims of inef fec tive assistance of counse l set out in Strickland has been adopted for Tex as constitutional claims. He rn an de z v . S tate , 726 S.W .2d 53, 57 (Tex. Crim. App. 1986). Under the Strickland-He rnandez standard, a

ny all ega t i o n of ine ff e c tiv e ne ss m

us t be fi rm ly fo un de d in the re c or d, and the re c or d mu st a ff ir mativ e ly de mon str a te20

the alleg ed inef

fec tiveness. Tho mp so n v . S tate , 9 S. W.3 d 8 08 , 8 13 (T e x. Cr im. Ap p. 19 99 ); Josey

v . S tat e , 97 S.W .3d 687, 696 (Tex. A pp.—Texarkana 2003, no pet.). The assessment of w hether a defe ndant re ceive d eff

ective a ssistance of c ounsel must be made accor ding to the fa cts of ea ch ca se. Lop e z v . S tate , 96 S.W .3d 406, 417 (Tex. App.—Austin 2002, pet. ref ’d). Whether

the Strickland te st h a s b e e n me t is to b e jud g e d b y the “ tot a lity

of the re pr e se ntatio n” ra

the r tha n by iso late d a c ts
or omi ssi on s o f t

ri a l c ouns e l, a

nd the te st i s a

ppli ed at the t ime of

the tr ia l, n ot t

hr ou g h h ind sig ht. Ex pa rteW e lbo rn , 785 S.W. 2d

39 1, 39 3 ( Te x. Cr im. Ap p. 19 90 ); Banks , 819 S.W .2d at 681. Any judicia l r e v ie w o f

a d e f e n d an t’ s c la im

o f in e f f e c ti v e a s s is ta

n c e mu s t b e h ig h ly

d e f e r e n ti a l t o tr ial
c o u n s e l. Thompson , 9 S.W.3 d at 81 3. Th e re is a str on g pr e sumpt ion

that c ouns e l’ s c on du c t f

e ll within the wide rang e of r easona ble profe ssional assistance. Id. ; J ac k so n v . S tate , 877 S.W .2d 768, 771 (Tex. Crim. App. 1994).

We do not spe culate a

bout trial counsel’s strateg y . Bl e v ins v . S tate , 18 S.W .3d 260, 271 (Tex. A

pp.—Austin 2000, no pet.). A revie wing court will not second g uess throug h hindsight the strateg y of counsel at t rial. I n the absence of direc t evidenc e in the re cord of counsel’s r easons for the c h a ll e n g e d

c o n d u c t, ana p p e ll a te c o u rt w il l a s s u me a s tr a te g ic mo ti v a ti o nif

an y c anbe imag ined. Ga rc ia , 5 7 S.W.3 d at 44 1; Sk e e n v . S tate , 96 S.W .3d 567, 580 (Tex. App.—Texarkana 2002, no pet.). Cf. Moore v. J ohnson , 194 F.3d 586, 604 ( 5th Cir. 1999). The cha lleng ed conduc t wi ll n ot, un de r t

he c ir c ums tanc e s, c on sti tut e de fi c ie nt p e rf or man ce un les s th e c on du c t w a s so outrag eous that no compe tent attorney would have e ng ag ed in it. Ga rc ia , 57 S.W .3d at 441; Thompson , 9 S.W .3d at 814.21 Tr ia l c ouns e l ha s a

du ty to m ake an in de pe nd e nt i nv e sti g a tio n o f t he fa c ts o f h is client’s ca se. Mi ra nd

a v . S tate , 9 9 3 S
. W
. 3 d 3 2 3 , 3 2 7 (T ex . Ap p . — Au s t i n1 9 9 9 , n o p et
. ) ( ci t i n g Ex parte Ewing , 570 S.W .2d 941, 947 (Tex. Crim. App
. 1 9 7 8 )) . Fa ilure to do so may deprive a defe ndant of the e ffe ctive assistanc e of c ounsel. Bu tle r v . S tate , 7 16 S.W. 2d

48 , 5 4- 55 (T e x. Cr im. App. 1986). While we may ag ree that counsel could have conducte d a more thoroug h investigation,
we do no t be lie ve tha

t th e c omp la ine d- of

omi ssi on ro se to t he le ve l of

c on sti tut ion a l in e ff

e c tiv e ne ss in light of the totality of the repr esentation. The extent of counsel’s inve stigation must be viewe d in the context of appellant’s c ooperation with his counsel fa cilitating the inve stigation.

At the hea

ring on the motion for new tr ial, appellant’ s trial counsel testified that he had pra cticed c riminal law for thirty y ear s and had trie d over 200 f elony case s. He ha d handled c ases wher e his clients had a

bipolar disorder

or we re ma

nic depr ess i v es . Counsel relate d that he had discussed with appe llan t t h e fa ct s of the c ase, the nature of the e vidence likely to be introduce d ag ainst appellant, the state ment supposedly made by appellant to his sister, and the e nhance ment of punishment al l ega t i o ns. Counsel felt that his tim e to pre pare for tria l and to speak w ith appellant was “ adequate.” Counsel wa s appointed five months before trial to repr esent appellant. He w as the
se c on d a pp oin te d tr ia l c ouns e l. T o c ouns e l a pp e lla nt a pp eared no rm a l. A

pp e lla nt w a s a ble to
co m m u n i ca te and c onsult with counsel. I n eff ect, c ounsel was c onfident that appe llant was competent to stand trial a

nd to aid him in any

defe nse off

ere d at thetime of the trial
. See Tex. Code Cr im. Pr oc . A nn . a

rt . 4 6. 02 , § 1( a ) ( Wes t 19 79 ). Couns el rel a te d th a t th e State ha d g ive n h im
ever y thing he reque sted in his trial prepar ation.22 There wer e no eye witnesses to the offe nses char g ed. For one rea son or another , no known fing erpr ints were ide ntified as beingfound in the apa rtment or on the items take n. The blood spot discovere d was not tested. Entry into the apartment had been obt ained f rom an outside balc ony which wa s ten fee t off the gr ound. Acc ess to the balcony would have be en diffic ult. Bec ause of the

“ biza rr e ” lis t of

ite ms t a ke n, the ble a c h thro wn on c lot he s, and the fi re on

the c ou c h a

pp are ntl y started with ve g etable oil, it was c ounsel’s trial strate g y to raise r easona

ble doubt by

arguing to the jury that the offe nses had be en committed by teena g ers possibly living in the apa rtment complex who kn e w w he n th e c omp la ina nt l e ft he r a pa rtme nt. Couns e l su g g e ste d to the jur y that the sto le n it e ms
wer e aba ndoned in a ditch beca

use the teena g ers knew they would be questioned at home about new possessions after

it was known that the off ense of burgl ary and ar son had bee n committed in the
near by complainant’s a

partment. J ust before appellant’ s sister testified as the last witness for the State, appe llant for the fi rs t tim e tol d c ouns e l that he su ff e re d fr om a

bip ola r d iso rd e r a

nd wa s b e ingme dic a te d f

or it. Counsel had no pre vious knowledg e of this condition . Appellant had e arlier told counsel that the alleg ations in the prior convic tions were tr ue. The re was no indication that mental health questions
wer e involved in those convic tions. Counsel w as ca ug ht in mid-trial with information that his client h ad wi t h h eld from him. Thi s came afte r his trial strateg y had bee n formed a

nd advanc ed by int e rr og a tio n. On

the c ro ss- e xami natio n o f a pp e lla nt’ s si st er, c ouns e l w a s a ble to e lic it this same testimony and to ar g ue it befor e the tria l court on t he is sue of punishment. On the cr oss-examination of the sister, c ounsel tried to blunt her testimony for the State by

eliciting e vidence that she had use d on direc t examination the fire marshal’ s terminolog y in describingappellant’ s telephone c all. She“The term ‘menta l disease or defe ct’ doe s not include an a bn o rm ality

manifested by 5 repe ated c riminal or otherw ise antisocial conduc t. Tex. P en. Code Ann. § 8.01( b) (West 2003). 23 admitted that she had be en aslee p when an upset appellant telephoned e arly on November

30, 2002, and that appe llant probably did not use the word “ torche d.” C o u n s e l w a s c a

u g h ti nm i d

- s t r e a m w i t h t h e p o s s i b i l i t y o f c h an g i n g h i s t r i a l s t r a t e g y. Couns e l a c kn ow le dg e d th a t ha d h e kn ow n b e fo re tr ia l of a pp e lla nt’ s me nta l c on dit ion , h e “ mig ht” have a sked for

the appointment of an expert to de termine appellant’ s mental health. Counsel made
c le ar that by the tim e tha

t he l e arn e d f

ro m a pp e lla nt a bo ut a pp e lla nt’ s b ipo lari sm i t w a s to o late to g ive the re quired statutory notice that he w as ra ising a n insanity defe nse. See Tex. P en. Code Ann. § 8.01 (West 2003); Tex. C ode Crim. Proc. Ann. a rt. 46.03(2)( a) ( West S upp. 2004-05). 5 Ba sed on his long e x perie nce, c ounsel expressed the view t hat insanity was “ an unpopular de fense ,” a da ng erous de fense . Counsel believed t h at an insanity defe nse, to be
succe ssful, had to be supporte d by strong expert psy chiatric evidenc e that a de fenda nt clear ly did not know the diffe renc e betwe en rig ht and wrongat the time of the of fense
. Couns e l a dmi tt ed tha t he did no t r e qu e st a

mid -t ri a l c on tin

ua nc e . H e g e ne ra lly questioned whe ther a

n insanity defe nse would have b ee n the prope r appr oach in the instant c ase. I n c ouns e l’ s o pin ion , s uc h a de fe ns e wo uld

imp ly g uil t. A t th e g uil t st a g e of the tr ia l, a

ny e mph a sis by the def ense on e vidence of mental he alth problems less than insanity would undo the ear lier trial strateg y . A mid-trial continuance with a jury in the box is normally

not favore d. Fur

ther, for various
rea sons, such continuanc es ar e strictly limit ed by

statutory provisions. See Tex. Code Crim. P roc.A continuanc e or postponement may be g rante d on the motion of the State or def endant 6 afte r the trial has begun, when i t is made to appea r t o the s atisfac tion of t he court that by so me un e xpe c te d o c c ur

re nc e sin c e the tr ia l beg an, wh ic h no r e a so na ble dil ig e nc e c ou ld have a nticipated, the a

pplicant is so taken by

surprise that a

fair tr ial cannot be had. Tex. Code Crim. P roc. A nn. art. 29.13 (West 1989). 24 Ann. ar t. 29.13 (West 1989). To preva il, a ppellant would have to demonstrate that suc h a motion 6 if filed would have been gr anted or counsel would have succe eded on the motion. See J ackson v

. Sta te , 9 73 S.W. 2d

95 4, 95 7 ( Te x. Cr im. Ap p. 19 98 ); K e l l e r v . Stat e , 125 S. W. 3 d 6 0 0 , 6 0 8 ( T e x. Ap p. —Ho us ton

[1st Di st. ] 200 3, pe t. r e f’ d) ; Ed mo nd v . S tate , 1 1 6 S. W. 3 d

1 1 0 , 1 1 2 ( T e x. App.—Houston [14th Dis t.] 2002, pet. re f’d) . Appellant has ma de no such de monstration.

Appellant also complains of counsel’s failure to discover pr obationary condition 21 in t he do c ume nts re latin g to a pr ior c on dit ion . Co un se l r e a dil y a dmi tte d th a t he did

no t kn owof

thi s 1994 condition which mere ly order ed a psycholog ical examination of appe llant. Counsel di d not know of the r esulting r eport of D r. F err era ’s that appe llant was an aggre s s i ve individual with a bo rd e rl ine pe rs on a lity

dis or de r. I f c ouns e l ha d k no wn of the se e ig ht

- ye a

r - o l d d oc ume nts , th e y

wo uld not of themselves g iven him a strong basis for a dopting a differ ent strateg y

than he did. Appellant fa

ults counsel for not re ques ti n g a p r e - s e nte n c e in

v e s ti g a ti o n b y a probation office r t o which he w ould have be en entitled. See Te x. Cod e Cr im. Pr oc . Ann. art
. 42 .1 2, § 9 (We st Supp. 2004- 05). The rec ord is silent as to how a pre -sentenc e investig ative re port (PSI ) would have benef itted appellant on the issue of punishme n t . A PSI is a double-e dg ed sword. It may include25

he ars ay , a

rr e st r e c or ds , d e ta ils of

pr ior c on vic tio ns , rum or s, vic tim ’s re c omm e nd a tio ns a s to punishment, etc. Se e ge ne ra lly Fr y e r v. S tate , 68 S.W .3d 62 (Tex. Crim. App. 2002) . Her e the tria l court’s a uthority in the assessment of punishment wa s lim i t ed by proof of a prior c onviction. Appellant’s a ssertion that a PSIshould have be en reque sted does not suppor t a finding of ineff

ective assistance of counse l on that basis.

A furthe r ineff

ectivene ss of counsel c omplaint is m ade be cause app el lant’s trial
c ouns e l di d n ot t a lk t o a

pp e lla nt’ s b ro the r, B ru c e Willi an, be fo re tr ia l and pr e se nt h im a s a wi tne ss. Fa ilure to ca ll a witness does not amount to ineffe ctive assistanc e of c ounsel unless the re cord shows that the witness was a

vailable at the time of the trial and that the testimony of the witness would have benef itted appellant. Se e Bu tle r v . S tate , 7 16 S.W. 2d

48 , 5 5 ( Te x. Cr im. Ap p. 19 86 ); Cat e v . S tate , 12 4 S. W.3 d 9 22 , 9 27 (T e x. Ap p. —A mari llo 20 04 , p e t. r e f’ d) ; Pa rm e r v . S tate , 38 S.W .3d 661, 688 (Tex. App.—Austin 2000, pet. ref ’d). The re is no showing that Br uce was available at trial. I f he was, his testimony

woul d not have be nefitted a ppellant. As noted, B ruce testified at the ne w trial hear ing that he and a

ppellant spent over

six hours drinking alcoholic bevera g es at two differe nt bars befor e appe llant left the last bar on foot, depre ssed and intox icated at 1 a.m. on the same morning the offe nses occ urre d. Voluntary intox ication is not a defe nse to the commission of a cr i me. See Tex. P en. Code Ann. § 8.04 ( West 2 0 0 3 ). Appellant contends that B ruce ’s lay testimony

that
a pp e lla nt w a s “ de pr e sse d” a ft e r s ix hou rs of dr ink ingand

be c a us e a pp e lla nt h a d br ok e n u

p w ithhis g irlfriend, lost his job, and had his ca r re possessed would have advanc ed a viable defense. It does not appea r that if Bruce had been called as a w itness, his testim ony would have be nefitted a

ppellant reg ardle ss of what the tria l strateg y may have be en.26 Ap pe lla nt u rg e s tha t cou ns el f

a ile d to ta lk t o h is s ist e r, B ir dw e ll, pr ior to t ri a l. Couns e l kn e w that B ir dw e ll wa s g oin g to te sti fy fo r the State a bo ut a pp e lla nt’ s state me nt t o h e r i n t h e e ar l y m o r n i n g h o u r s o f

N o v e mb e r

3 0 , 2 0 0 2 , an d

h a d d i s c u s s e d

t h e s a m e w i t h ap p e l l a n t
. If counsel ha d talked to her

he may have le arne d that in addition to being in a de ep slee p, Birdw ell was “drunk” when she answe red a ppellant’s telephone call. Counsel’s re asons for not inter viewing Birdw ell prior to trial we re not de veloped at the hear ing.

Whether the Strickland

standard ha s been m et i s to be judg ed by the totality

of the repr esentation rather tha

n isolated acts or omissions of trial counsel, and the test is to be applied at the t ime of t he trial and not throug h hindsight. W ilkerson , 726 S.W .2d at 549. The f act that a nother attorney might have pursued a

differ ent cour se of a cti o n at t ri al will not support a finding of ineffe ctiveness. Banks , 819 S.W .2d at 691. The Strickland sta nd ard ha s n e ve r b e e n in te rp re te d to mean that a

n acc used is entitled to error less or per fec t counsel. Br idge v . S tate , 726 S.W .2d 559, 571 (T e x. Cr im. Ap p. 19 86 ). Th e pa rt ic ula r fa c ts a nd c ir c ums tanc e s o f e a c h c a se mus t be e va luate d in any claim of ineff

ectivene ss of counsel. J

oh ns on v . S

tate , 691 S.W .2d 619, 628 (Tex. Crim. App. 1984). Appellant ca nnot be per

mitted under the circ umstances of this case to withhold vital information from his counsel, then belatedly disclose i t, setting the stag e for an inef fec tive assistance of counse l claim and possi b l y a new trial. A def

endant is not allowed to play this game and win. We conclude that the appellant ha s failed to establish the two-prong ed standa rd of Strickland . The trial court did not abuse its discretion in overr uling the motion for ne w trial on this basis. Point s of
err or eig ht and nine ar e over ruled.27 P oint of Error Ten I n his la st poi nt of e rr or , ap pe lla nt co mpl a ins that the tr ia l court re ve rs ibl y e rr e d in
overr uling the motion for ne w trial for all the re asons pre viously discussed. Our e arlier discussion has disposed of this g ener al point of err or. Point of error ten is overr

uled.
Conclusion The judg ment i n t ri al cour t case no. 7034084 is refor med to ref

lect a pr evious conviction for attempted burg lary of a ha bitation, and as ref

ormed, aff

irmed. The judg ment in trial court c ase no. 7034083 is vac ated a nd the ca use is dismiss ed.

J ohn F. Onion, Jr., J ustice Be fore Chief J ustice L aw, Justi ces Pury ear and Onion * Va c a te d a nd Di smi sse d in

Ca us e No . 0 3- 03 -0 06 81 -C R Re fo rm e d, and

a s Re fo rm e d, Af

fi rm e d a s to Ca

us e No . 0 3- 03 -0 06 86 -C R Filed: August 17, 2005 Do No t Pu

bli sh

Be fore J ohn F. Onion, Jr., Presiding Judge (re tired), Court of Criminal Appe als, sitting by * assig nment. See Tex. Gov’t Code Ann. § 74.003(b) ( West 1998).