NO

. PD -1259- 15

_________________________________

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

_________________________________ EX PARTE CHIDIEBELE GABRIEL OKONKWO

_________________________________ ON DISCRETIONARY REVIEW FROM THE COURT OF APPEALS FOR THE FOURTEENTH JUDICIAL DISTRICT OF TEXAS

AT HOUSTON CAUSE N O. 14

- 14 -00835- CR

_________________________________ Appealed from the 434th District Court of Fort Bend County, Texas Cause N o. 09

- DCR -052539

_________________________________ PETITION FOR DISCRETIONARY REVIEW

_________________________________

Josh Schaffer State Bar No. 24037439
1021 Main St., Suite 1 44 0 Houston, Texas 77002 (713) 951-9555 (713) 951-9854 (facsimile) josh@joshschafferlaw.com Attorney for Appellant CHIDIEBELE GABRIEL OKONKWO
ORAL ARGUMENT NOT REQUESTED PD-1259-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 10/28/2015 5:51:35 PM Accepted 11/2/2015 11:25:44 AM

ABEL ACOSTA CLERKi IDENTITY OF THE PARTIES Appellant: Chidiebele Gabriel Okonkwo 3323 Thistlegrove Lane Sugar Land, Texas 77498

Trial Counsel: Sean Buckley 770 South Post Oak Lane, Suite 620 Houston, T exas 77056
Appellate Counsel: Brian Wice 440 Louisiana, Ste. 900 H ouston, Texas 77002

Habeas Counsel: Josh Schaffer 1021 Main , Ste. 1 44 0 Houston, Texas 7700 2

Trial Prosecutor : Rodolfo Ramirez 301 Jackson St. , Room 101 Richmond, Texas 77469
Appellate & Habeas Prosecutor: Gail Kikawa McConnell 301 Jackson St. , R oom 101 Richmond, Texas 77469

Trial & Habeas Judge: James Shoemake 434th District Court Judge 301 Jackson St., R oo m 125 Richmond, TX 77469ii SUBJECT INDEX
Page

STATEMENT OF PROCEDURAL HISTORY

................................ .................. 1

STATEMENT REGARDING ORAL ARGUMENT

................................ .......... 2

GROUNDS FOR REVIEW

................................ ................................ .................. 2

- 3

STATEMENT OF THE CASE

................................ ................................ ............. 3

ARGUMENT

................................ ................................ ................................ ......... 4

FIRST GROUND FOR REVIEW

................................ .............................. 4

WHERE THE JURY HAD TO RESOLVE WHETHER APPELLANT REASONABLY BELIEVED THAT THE COUNTERFEIT MONEY WAS AUTHENTIC , THE FOURTEENTH COURT OF APPEALS ERRED IN HOLDING THAT COUNSEL DI D NOT PERFORM DEFICIENTLY WHEN HE CONCEDED DURING SUMMATION THAT APPELLANT ACTED “IN A TOTALLY UNREASONABLE WAY THAT LACKS COMMON SENSE EVEN AT A BASIC LEVEL” ( 5 R.R. 177 )

.
A. Statement Of Facts

................................ ................................ ............ 4

B. Arguments And Authorities

................................ ............................. 5

1. The standard of revi ew on an ineffective assistance of counsel claim

................................ ................................ .......... 5

2. Counsel performed deficiently when he conceded during summation that appellant acted “in a totally unreasonable way that lacks common sense even at a basic level.”

........ 6iii Page

3. The Court of Appea ls’ decision conflicts with applicable decisions of the Supreme Court and another court of appeals, calls for an exercise of the Court’s power of supervision, and fails to address the issue raised by appellant’s arguments

................................ ........................ 9

SECOND GROUND FOR REVIEW

................................ ......................... 13

THE FOURTEENTH COURT OF APPEALS ERRED IN APPLYING THE WRONG STANDARD OF REVIEW WHEN IT ANALYZED THE PREJUDICIAL EFFECT OF APPELLANT’S REMAINING ALLEGATONS OF DEFICIENT PERFORMANCE INDIVIDUALLY INSTEAD OF CUMULATIVELY, CONTRARY TO S TRICKLAND V . W ASHINGTON , 466 U.S. 668 (1984), AND E X PARTE A GUILAR , No. AP

- 75,526, 2007 WL 3208751 (T EX . C RIM

. A PP . 2007)

.
A. Statement Of Facts

................................ ................................ ............ 1 3

B. Arguments And Authorities

................................ ............................. 14

CONCLUSION

................................ ................................ ................................ ...... 1 6

CERTIFICATE OF SERVICE

................................ ................................ .............. 1 7

CERTIFICATE OF COMPLIANCE

................................ ................................ .... 1 7

APPENDIX

................................ ................................ ................................ ............ 1 8iv INDEX OF AUTHORITIES

Cases Page

Brown v. State , 978 S.W.2d 708 (Tex. App.

— Amarillo 1998 , pet. ref’d )

...... 12
Craig v. State , 847 S.W.2d 434 (Tex. App.

— El Paso 1984, no pet.)

............... 6,8,10
Ex parte Aguilar, No. AP

- 75,526, 2007 WL 3208751 (Tex. Crim. App. 2007)

................................ ................................ ................................ 3 ,4,6,13,15
Ex parte Menchaca , 854 S.W.2d 128 (Tex. Crim. App. 1993)

........................ 14
Ex parte Okonkwo, No. 14

- 14

- 00835

- CR (Tex. App.

— Houston [14th Dist.] 2015)

................................ ................................ ................................ ............ 2
Gagnon v. Scarpelli , 411 U.S. 778 (1973)

................................ ........................ 11
Herring v. New York , 422 U.S. 853 (1975)

................................ ..................... 10

- 11

Kimmelman v. Morrison , 477 U.S. 365 (1986)

................................ ................ 16
Kyles v. Whitley , 514 U.S. 419 (1995)

................................ ................................ . 6,16

McMann v. Richardson , 397 U.S. 759 (1970)

................................ ................... 5

Okonkwo v. State , 357 S.W.3d 815 (Tex. App.

— Houston [14th Dist] 2011)

..... 1

Okonkwo v. State , 398 S.W.3d 689 (Tex. Cri m. App. 2013)

............................... 1 ,8,10

Powell v. Alabama , 287 U.S. 45 (1932)

................................ ................................ 5
Strickland v. Washington , 466 U.S. 668 (1984)

................................ ........ 3

- 6,11,13,15
Wiley v. Sowders , 647 F.2d 642 (6th Cir. 1981)

................................ .............. 7v C onstitution al Provision s Page

U.S. C ONST . amend. VI

................................ ................................ .......................... 5

U.S. C ONST . ame nd. XIV

................................ ................................ ................... 5
Statutory Provision

T EX . C RIM . P ROC . C ODE art. 11.072 (West 2014)

................................ ............ 1

Rules

T EX . R. A PP . P. 47.1

................................ ................................ .......................... 12

T EX . R. A PP . P. 66.3(a)

................................ ................................ ..................... 12

T EX . R. A PP . P. 66.3(c)

................................ ................................ ..................... 12,16

T EX . R. A PP . P. 66.3(f)

................................ ................................ ...................... 121 STATEMENT OF PROCEDURAL HISTORY
Appellant was charged with the third

- degree felony offense of forgery in cause
number 52,539 in the 434th District Court of Fort Bend County. He pled not guilty
before the Honorable James Shoemake. A jury convicted him on July 16, 2010

.
P ursuant to a plea agreement, the court assessed his punishment at three years in
prison, probated for three years, on October 22, 2010. Sean Buckley represented him

at trial.
The Fourteenth Court of Appeals reversed appellant’s conv iction in a
published opinion issued on December 20, 2011. 1 The Court of Criminal Appeals

reversed that judgment and affirmed the conviction in a published opinion issued on
May 15, 2013. 2 Okonkwo v. State , 357 S.W.3d 815 (Tex. App.

— Houston [14th
Dist] 2 011), rev’d , 398 S.W.3d 689 (Tex. Crim. App. 2013). Brian Wice represented
him on appeal.
Appellant filed a habeas corpus application pursuant to article 11.072 of the
Code of Criminal Procedure on May 23, 2014 (C.R. 173

- 202). The Honorable James

Shoema ke entered a nunc pro tunc ord er deleting the fine on June 10 (C.R. 221);
conducted a hearing on September 5 ; and denied habeas corpus relief on September

1 The Court of Appeals held that trial counsel was ineffective in failing to request an instruction in the jury charge on t he defense of mistake of fa ct.

2 This Court held that counsel was not ineffective because the State already had to prove that appellant knew that the money was forged as an element of the offense.2

23, 2014 (C.R. 323 )

. 3 Present counsel represented him in the habeas proceeding

.
The Fourteenth Cour

t of Appeals affirmed the denial of habeas corpus relief in
an unpublished opinion issued on August 27, 2015. Appellant did not move for
rehearing. Ex parte Okonkwo , No. 14

- 14

- 00835

- CR (Tex. App.

— Houston [14th
Dist.] 2015) (not designated for publication ) (Appendix). Present counsel
represented him.
This Court previously granted an extension of time to file the petition for
discretionary review. It must be filed by October 28 , 2015.

STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral arg ument because the issues, though
important, involve well

- settled legal pri n ciples and can be resolved on the briefs

. However, should the Court want to hear argument, counsel eagerly w ill present it.

GROUNDS FOR REVIEW

1. Where the jury had to resolve whether appellant reasonably believed that the counterfeit money was authentic , t he F ourteenth Court of Appeals erred in holding that c ounsel did not perform deficiently when he conceded during summation that appellant acted “in a totally unreasonable way that lacks com mon sense even at a basic level ” ( 5 R.R. 177 ).

3 The trial court created confusion when it signed conflicting orders that grant ed and den ied relief and adopted both appellant’s and the State’s proposed findings of fact and conclusions of law on September 23, 2014 ( C.R. 323, 341, 404). The State sought clarification of the ruling (C.R. 343

- 86). The court asserted on October 9 that it signed the order granting relief inadvertently and intended to sign the State’s findings and deny relief (C.R. 404).3

2. The Fourteenth Co urt of Appeals erred in applying the wrong standard of review when it analyzed the prejudicial effect of appellant’s remaining allegations of deficient performance individually instead of cumulatively, contrary to Strickland v. Washington , 466 U.S. 668 (1984), and Ex parte Aguilar , No. AP

- 75,526, 2007 WL 3 208751 (Tex. Crim. App. 2007)

.

STATEMENT OF THE CASE
Appellant attempted to use counterfeit money to obtain a money order from
an HEB grocery store. The State alleged that he committed forgery by possess ing
and presenting counterfeit money, knowing that it was f orged , with the intent to

defraud the store

. Appellant’s defense at trial was that he did not know the money was forged

and reasonably believed it was authentic. A native of Nigeria, he testified that he

received a large amount of cash in the mail from a man in Nigeria who wanted h im

to purchas e a car in the United States and ship it to Nigeria. Appellant tested some

of the bills with a counterfeit

- detection pen and concluded that they were authentic.

T he man asked him to obtain money orders to pay some invoices. He purchase d
money orders using th e money at two grocery stores, but HEB rejected the money
and called the police. The verdict depended on h is credibility.
The Court of Appeals erred in two respects. First, where the jury had to
resolve whether appellant reasonably believed that the counterfeit money was
authentic, it erroneously concluded that counsel did not perform deficiently when4

he conceded d uring summation that appellant acted “in a totally unreasonable way

that lacks common sense even at a basic level. ” Second, i t applied the wrong
standard of review when it analyzed the prejudicial effect of appellant’s remaining
allegations of deficient performance individually instead of cumulatively, contrary

to Strickland v. Washington , 466 U.S. 668 (1984), and Ex parte Aguilar , No. AP

75,526, 2007 WL 3 208751 (Tex. Crim. App. 2007)

.
ARGUMENT

FIRST GROUND FOR REVIEW

WHERE THE JURY HAD TO RESOLVE WHETHER APPELLANT REASONABLY BELIEVED THAT THE COUNTERFEIT MONEY WAS AUTHENTIC , THE FOURTEENTH COURT OF APPEALS ERRED IN HOLDING THAT COUNSEL DID NOT PERFORM DEFICIENTLY WHEN HE CONCEDED DURING SUMMATION THAT APPELLANT ACTED “IN A TOTALLY UNREASONABLE WAY THAT LACKS COMMON SENSE EVEN AT A BASIC LEVEL” ( 5 R.R. 177 )

.
A. Stat ement Of Facts
The indictment alleged that appellant, with intent to defraud, possessed
forged money with intent to pass the money and “with knowledge that the [money]
was forged” (C.R. 4). The court instructed the jury in the application paragraph of

th e charge to convict appellant if it found, beyond a reasonable doubt, inter alia , that he acted “with knowledge that the [money] was forged” (C.R. 40). Appellant

testified that he did not know the money was counterfeit and believed it was5

au thentic (4 R.R. 205, 212, 215

- 17, 228, 23 3 ; 5 R.R. 11

- 12, 19, 67, 74 , 139

- 40).
Counsel began his summation by conceding that the State proved beyond a
reasonable doubt that appellant acted “in a totally unreasonable way that lacks

common sense even at a basic level” (5 R.R. 177).

B

. Argument And Authorities

1. The standard o f r eview o n a n i neffective a ssistance of c ounsel c laim

. Appellant had a right to the effective assistance of counsel at trial. U.S.

C ONST . amends. VI and XIV; Powell v. A labama , 287 U.S. 45 , 68

- 72 (1932).
Counsel must act within the range of competence demanded of counsel in criminal

cases. McMann v. Richardson , 397 U.S. 759 , 771 (1970).

In Strickland v. Washington , 466 U.S. 668 (1984), the Supreme Court

addressed the federal constitutional standard to determine whether counsel rendered
reasonably effective assistance. The defendant first must show that counsel’s
performance was deficient

— that counsel made errors so serious that he was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient perf ormance prejudiced the

defense

— that counsel’s errors were so serious as to deprive the defendant of a fair

trial with a reliable result.

The defendant must identify specific acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment. The6

reviewing court must then determine whether, in light of all the circumstances, the

identified acts or omissions were outside the range of professionally competent
assistance. Ultimately, the defendant must show “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. ” Strickland , 466 U.S. at 694

. Counsel’s errors are
considered cumulatively to determine whether applicant was prejudiced. Ex parte
Aguilar , No. AP

- 75,526, 2007 WL 3208751, *3 (Tex. Crim. App . 2007) (not
designated for publication).
Appellant need not show a reasonable probability that, but for counsel’s errors,
he would have been acquitted. Rather, the issue is whether he received a fair trial
that produced a verdict worthy of confidence. Cf

. Kyles v. Whitley , 514 U.S. 419,
434 (1995).

2

. C ounsel perform ed deficiently when he c onceded during summation that appellant acted “in a totally unreasonable way that lacks common sense even at a basic level

. ”
Defense counsel performs deficiently wher e his summation is affirmatively
prejudicial. See Craig v. State , 847 S.W.2d 434, 435

- 36 (Tex. App.

— El Paso
1984, no pet.) (counsel summarized evidence in manner favorable to State,
misquoted testimony in manner unfavorable to defendant, and argued that
punishment verdict would not deter lifestyle of defendant or his “ bandito friends ” ).7

Counsel cannot concede the defendant’s guilt during summation where he pleads
not guilty. Wiley v. Sowders , 647 F. 2d 642, 649

- 50 (6th Cir. 1981). It is
prejudicial for counsel to concede during summation that the defendant acted
unreasonably where that concession relates to the only contested element of the
alleged offense and undermines the entire defensive theory

. By the time of summation, counsel thought that the jury believed that
appellant was either a criminal or an idiot (C.R. 213; AX 1 at 8). Counsel decided

to embrace the notion that he was an idiot and conceded that he acted without

reason and common sense . Counsel admits that he did not give adequate thought
to the argument before making it; that he should have said that appellant was
gullible or naive without conceding that appellant acted unreasonably; and that his

concession conflicted with the defens i v e theory that appellant reasonably believed
that the money was authentic because a sampling of bil ls were tested by a

counterfeit

- detection pen and several stores previously accepted the bills

. Counsel regrets making this particular argument and, as a result of this case,
will never do so in the future (C.R. 213; AX 1 at 8). He admits that it was not a
sound strategy to concede that appellant acted unreasonably and without common

sense where the defens iv e theory was that appellant reasonably believed that the
money was authentic. H e recognized the harm of this argument when th is Court

observed on discretionary review that he presented inconsistent defensive theories.8

See Okonkwo , 398 S.W.3d at 696

. In a footnote, this Court cited this particular
argument as an example of that inconsistency. Id. at n. 7. Counsel admits that he
should have argued that appellant lacked the intent to commit forgery because he
honestly and reasonably believed that the money was authentic ( C.R. 213; AX 1 at
8). Counsel performed deficiently in this regard. Craig , 847 S.W.2d at 435

- 36
(counsel ineffective in making prejudicial argument summarizing evidence in
manner favorable to State).

I n th e habeas proceeding , t he trial court a dopted the State ’ s proposed

conclusion th at counsel executed a reasonable strategy to acknowledge appellant’s
“odd behavior and shortcomings up front, and focus the jury’s attention on the
critical issue in the case” (C.R. 335, 340; Finding 60; Conclusion 17). This
conclusion ignores the allegat ion because it fails to address counsel’s conduct in
conceding that appellant acted unreasonably and without common sense.
Appellant does not complain about counsel’s strategic decision to acknowledge
appellant’s “odd behavior and shortcomings,” or to foc us the jury on whether
appellant knew that the money was counterfeit. The issue is that counsel should
have employed this strategy without conceding such an important part of the

defense

—

that appellant reasonably believed the money was authentic. Th e trial
court totally ignored counsel’s affidavit on this issue.9

3. The Court of Appeals’ decision conflicts with applicable decision s of the Supreme Court and another court of appeals, calls for an exercise of the Court’s power of supervision, and fails t o address the issue raised by appellant’s arguments

. The Court of Appeals concluded that the habeas record “supports the trial
court’s finding that counsel’s acknowledgment of appellant’s odd behavior up front
was a sound trial strategy.” Appendix at 8. It asserted that there was evidence
suggesting that appellant knew the money was counterfeit; that counsel “sought to
gain credibility with the jury by admitting that [this] behavior seemed odd”; and that
counsel attempted to “explain away the oddit y.” Appendix at 8

- 9. It held that this
was a “calculated risk.” Appendix at 9.
The Court of Appeals acknowledged that appellant specifically complained
about counsel’s description of his behavior as “unreasonable” but held that this did

not constitute deficient performance. Appendix at 9. It concluded that the jury did
not have to determine whether appellant acted reasonably, but only whether he
intended to pass counterfeit money. This analysis was dead wrong . The only

contested issue at trial was whether appellant reasonably believed that the money he
presented to the store was authentic . Stated otherwise, appellant contended that he

did not know that the money was counterfeit. The jury had to resolve whether this

belief was reasonable. 4 Th is Court recognized on discretionary review that the State

4 Indeed, the State contended on direct appeal that the jury could not have convicted appellant without rejecting his testimony tha t he believed the money to be authentic.10

had to prove that appellant knew the money was forged as an element of the offense.

Okonkwo , 398 S.W.3d at 691, 695

. Counsel destroyed the defense when he
conceded during summation that appellant did not act reasonably. His argument was
contrary to appellant’s not guilty plea, undermined appellant’s testimony, and was
objectively deficient. The Court of Appea ls totally ignored that appellant’s
“knowledge” was an essential element of the offense, and it neither discussed nor
distinguished Craig

. Additionally, the Court of Appeals failed to address appellant’s argument that
counsel’s concession was especially harmful in light of this Court’s decision on
discretionary review. Specifically, this Co urt cited the complained

- of argument as
an example of counsel’s failure to present consistent defensive theories. Okonkwo , 398 S.W.3d at 696, n. 7. The Court of Appeals ignored this footnote despite
appellant’s reliance on it.
The importance of closing argument in a criminal case cannot be
underestimated. The Supreme Court has recognized that there can be “no doubt
that closing argument for the defense is a basic element of the adversary fact

finding process in a criminal trial.” Herring v. New York , 422 U.S. 853, 8 58
(1975). T hat Court observed, id

. at 862:

It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position11 to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And, for the defense , closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt.
Defense counsel has a duty to present arguments that support, rather than
undermine, the defendant’s position. If the defendant contests guilt, counsel has a
duty to argue that the State did not prove beyond a reasonable doubt one or more
of the elements of the offense. Lawyers “are advocates, and bound by professional
duty to present all available evidence and arguments in support of their clients’
positions and to contest with vigor all adverse evidence and views.” Gagnon v.
Scarpelli , 411 U.S. 778, 787 (1973). Indeed, “no aspect of such advocacy could be
more important than the opportunity finally to marshal the evid ence for each side
before submission of the case to judgment.” Herring , 422 U.S. at 862.

Counsel owed appellant a duty of loyalty that the Supreme Court has

described as “the most basic of counsel’s duties.” Strickland , 466 U.S. at 692. He

breached t hat duty when he conceded during summation that appellant acted
unreasonably , where the defens iv e theory was that appellant reasonably believed
that the money w as authentic. No sound strategy could justify counsel’s conduct

. Indeed, he admits that this argument was unsound

. Finally, it is telling that the Court of Appeals severed this allegation of12

deficient performance from the other seven, choosing to presume that the others
constituted deficient performance but did not cause prejudice. That decision
demonstrates loudly that the Court of Appeals could not avoid the prejudicial

effect of counsel’ s concession, which was especially harmful where it occurred
immediately before the jury began deliberat ions

. See Brow n v. State , 978 S.W.2d
708, 715 (Tex. App.

—

Amarillo 1998 , pet. ref’d ) (“. . . t he harm arose immediately
before the jury was to retire and deliberate. Thus, its potential effect was not as

attenuated as it would have been had the mi sconduct occurred elsewh ere.”). T he

court ’ s decision not to presume that counsel ’ s concession was deficient and
consider its prejudicial effect along with the other allegations o f deficient
performance begs th e question: “ Is this one of those cases where counsel ’ s conduct was so prejudicial, it could n ot have been the result of a sound strategy? ”

The Court s hould grant review because the C ourt of A ppeals decided an
important question of law in conflict with the applicable decisions of the Supreme

Court and a

nother court of appeals ; so far departed from the accepted and usual
course of judicial proceedings as to call for an exercise of the Court’s p ower of
supervision; and failed to address the issue raised by appellant’s arguments. T EX

.
R. A PP . P. 47.1, 66.3(a), 66.3(c), & 66.3(f).13 SECOND GROUND FOR REVIEW

THE FOURTEENTH COURT OF APPEALS ERRED IN APPLYING THE WRONG STANDARD OF REVIEW WHEN IT ANALYZ ED THE PREJUDICIAL EFFECT OF APPELLANT’S REMAINING ALLEGATONS OF DEFICIENT PERFORMANCE INDIVIDUALLY INSTEAD OF CUMULATIVELY, CONTRARY TO S TRICKLAND V . W ASHINGTON , 466 U.S. 668 (1984), AND E X PA RTE A GUILAR , N o . AP

- 75,526, 2007 WL 3208751 (T EX . C RIM . A PP . 2007)

.
A. Statement Of Facts
In addition to appella nt’s allegation that counsel performed deficiently in
making a prejudicial c oncession during summation, appellant raised seven other
allegations of deficient performance in the Court of Appeals :

1. Counsel failed to object to inadmissible testimony that most suspects cooperate during investigations and that, in other cases, cooperative suspects consented to se arches that revealed contraband;

2. c ounsel elicited improper opinion testimony that one of the lead police investigators believed that appellant knew the money was counterfeit ;

3. c ounsel elicited inadmissible testimony that guilty people in counterfeit cases profess their innocence ;

4. c ounsel opened the door to inadmissible testimony that the State’s expert on counterfeit money had never seen N igerians victimize other Nigerians in a scheme to defraud ;

5. c ounsel failed to object to improper cross

- examination regarding what the defense witnesses would have done had they received a package containing a large amount of cash ;

6. c ounsel failed to object to the prosecutor’s comment that appellant had engaged in plea negotiations and, when responding to the prosecutor,14 acknowledged that appellant made admissions during plea negotiations ; and

7. c ounsel failed to object to the prosecutor improperly a sking appellant if the l ead case agent was lying about the money being counterfeit

. Counsel provided an affidavit in the habeas proceeding in which he admi tted that

none of these acts or omissions w as based on sound trial strategy ( C.R. 206

- 12 ;

AX 1 )

. The trial court ignored counsel’s affidavit and concluded that he did not
perform deficiently in any of these seven instances.
The Court of Appeals presumed that counsel performed deficiently in all

seven instances and determined whether they caused p rejudice. Appendix at 10.
In conducting the prejudice analysis, it s tated that “counsel’s alleged errors are
examined not as isolated instances, but in the context of the overall record.”
Appendix at 11 (citing Ex parte Menchaca , 854 S.W.2d 128, 132 (Tex. Crim. App.
1993)). It then did the exact opposite by analyzing the prejudicial effect of each of
the seven allegations of deficient performance individually, instead of considering
their cumulative effect on the entire trial. Appendix at 11

- 19.

B

. Argument And Authorities
The Court of Appeals applied the wrong standard of review when it

concluded that each allegation of deficient performance, standing alone, did not
adversely affected the outcome of the trial. This is an erroneous application of the
standard for determining prejudice. Rather, a court reviewing an ineffective

-15

assistance

- of

- counsel claim is required to consider the cumulative effect of each act
or omission that constitutes deficient performance and determine whether there is a

reas onable probability that, but for these errors, considered collectively, the
outcome of the proceeding would have been different. See Strickland , 466 U.S. at

693

- 96. This Court reiterated that standard of review in 2007 in Ex parte Aguilar ,
2007 WL 32087 51 at *3

. 5 The Court of A ppeals’ legal conclusions constitute an
unreasonable application of Strickland and Aguilar in light of the evidence
presented at the trial and in the habeas proceeding

. This case was defensible and turned on whether the jury believed appellant’s
testimony that he did not know the money was counterfeit. His credibility was the
most important issue. As a result of c ounsel’s errors, the jury heard inadmissible,
prejudicial testimony that the police believed that appellant was guilty; that
cooperative s uspects in other cases were guilty; that guilty people protest their
innocence; and that Nigerians do not victimize other Nigerians. The prosecutor
improperly asked appellant if the lead case agent was lying. The harmful, cumulative

effect of this testim ony was compounded when counsel allowed the jury to hear that
appellant had engaged in plea negotiations during which he made admissions.
Further damaging appellant’s credibility, counsel allowed the State to elicit
improperly from defense witnesses that they would not have acted the same as

5 This case demonstrates why Aguilar should have been published. This Court denied motions to publish it in 2007 and 2013.16

appellant had they received a package with a large amount of cash. Collectively,

these errors p lace the State’s case in a much more favorable light and appellant ’s
case in a much less favorable light. But for these err ors, there is a reasonable
probability that the outcome of the proceeding would have been different.

Post

- Stric k land , the Supreme Court has recognized that the essence of an
ineffective assistance of counsel claim is that “counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was
rendered unfair and the verdict rendered suspect.” Kimmelman v. Morrison , 477
U.S. 365, 374 (1986). When examining prejudice, the question is not whether
appellant more l ikely than not would have received a different verdict but for
counsel’s errors, but wh ether, in light of the errors, he received a trial resulting in a
verdict worthy of confidence. Cf

. Kyles , 514 U.S. at 434. Appellant’s verdict is
not worthy of confid ence.

The Court s hould grant review because the C ourt of A ppeals decided an
important question of law in conflict with the applicable decisions of this Court
and the Supreme Court . T EX . R. A PP . P. 66.3(c)

.
CONCLUSION
The Court should grant review and or der full briefing to resolve these
important issues.17 Respectfully submitted,

/S/ Josh Schaffer Josh Schaffer State Bar No. 24037439 1021 Main St. , Suite 1 44 0 Housto n, Texas 770 0 2 (713) 951

- 9555 (7 13) 951

- 9854 (facsimile) josh @ joshschafferlaw.com
Attorney for Appellant CHIDIEBELE GABRIEL O KONKWO

CERTIFICATE OF SERVICE
I served a copy of this document on Gail Kikawa McConnell, assistant
district attorney for Fort Bend County ; and on Lisa McMinn, State Prosecuting
Attorney, by electronic mail on October 28 , 2015.

/S/ Josh Schaffer Josh Schaffer

CERTIFICATE OF COMPLIANCE
The word count of the countable portions of this computer

- generated
document specified by Rule of Appellate Procedure 9.4(i), as shown by the word

processing program that was used to create the document, is 2 ,9 4 0 words. This
document complies with the typeface requirements of Rule 9.4(e), as it is printed in

a c onventional 14

- point typeface with footnotes in 12

- point typeface.

/S/ Josh Schaffer Josh Schaffer18 APPENDIX
Opinion of the Fourteenth Court of AppealsAffirmed and Memorandum Opinion filed August 27 , 2015

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 14

- 00835

- CR

EX PARTE CHIDIEBELE GABRIEL OKONKWO

On Appeal from the 434th Judicial District Court

Fort Bend County, Texas Trial Court Cause No. 09

- DCR

- 052539



## M E M O R A N D U M O P I N I O N
In this appeal from the trial court’s denial of habeas

- corpus relief, the applicant asserts the trial court abused its discretion in denying relief based upon the alleged ineffective assistance of applicant’s trial counsel. We a ffirm.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND Appellant/applicant Chidiebele Gabriel Okonkwo appeals the trial court’s order denying him habeas

- corpus relief as to his forgery conviction. The evidence at applicant’s trial for this offense showed applicant atte mpted to obtain a money2

order from a grocery store using counterfeit currency. 1 Applicant testified that he received the cash in the mail from a man in Nigeria named Bada Tunde, who sent him $60,000 in $100 bills in exchange for applicant’s help in purcha sing a car from the United States and shipping it to Nigeria. Applicant testified that he hid this money in a tin can in his bathroom and suspected the money might be counterfeit. The bills had a “real strong gassy smell,” glitter that rubbed off the bill s, and several bills had the same serial number. According to applicant, he tested the bills
with a counterfeit

- detection pen and determined they were not counterfeit. Applicant testified that he intended to obtain $5000 in money orders, but he purchase d the money orders in odd amounts. Applicant purchased $832 from one grocery store and $568 from a second store before attempting to use the money to purchase a money order from a third grocery store. By making money

- order purchases in these amounts, app licant was able to avoid identifying himself, as he would have been required to do if he had made just one money

- order purchase for the entire amount he sought to obtain from the separate money orders. The clerks at the third grocery store suspected the m oney was counterfeit and refused to give applicant a money order. According to applicant, as he drove out of the store parking lot, he spotted a police car, and then drove back into the parking lot, where police detained him. When a police officer asked applicant what he was doing at

1 Because no party offered into evidence in the habeas proceeding the reporter’s record from the trial t hat resulted in a

ppl icant’s forgery conviction (“Reporter’s Record”), o ur appellate record does not contain the Reporter’s Record

. Though the better course would have been to submit the Reporter’s Record as evidence, the trial court considered the Reporter’s Record in the habeas proceeding and cited it in the court’s findings of fact and conclusions of law. The parties cited the Reporter’s Record, and the trial court relied extensively on the Reporter’s Record in making the court’s habeas ruling. On this record, we concl ude that the trial court took judicial notice of the Reporter’s Record. The Reporter’s Record is contained in this court’s files in Cause No. 14

- 11

- 00037

- CR, applicant’s direct appeal of his conviction, which is a related proceeding involving the same or nearly the same parties as applicant’s appeal today. Under these particular circumstances, on our own motion, we take judicial notice of the Reporter’s Record.3

the store , applicant responded that he was buying groceries and did not mention anything about the money order. At trial, the State presented expert testimony from Agent Audrey Gibson, a United States Secret Service Agent, w ho concluded
the bills were counterfeit. The jury found applicant guilty of forgery. The trial court assessed punishment at three years’ confinement, suspended the imposition of the sentence, and placed applicant on community supervision for a term of t hree years. Applicant appealed his conviction, and this court reversed the conviction, holding that applicant was denied effective assistance of counsel because his trial counsel failed to request a jury instruction on applicant’s mistake

- of

- fact defense

. See
Okonkwo v. State , 357 S.W.3d 815, 818, 821 (Tex. App.

— Houston [14th Dist.] 2011), rev’d , 398 S.W.3d 689 (Tex. Crim. App. 2013). The Court of Criminal Appeals reversed this court’s judgment and rendered judgment affirming the trial court’s judgment. See Okonkwo v. State , 398 S.W.3d at 695

– 97. In his application
for habeas

- corpus relief, applicant asserted he received ineffective assistance of counsel in various respects other than his trial counsel’s failure to request a jury instruction on applican t’s mistake

- of

- fact defense. The trial court denied relief. Applicant now challenges that ruling on appeal.

II. A NALYSIS In one issue, applicant challenges the trial court’s denial of relief, arguing that applicant was denied effective assistance of counsel at the guilt/innocence phase of trial on the forgery offense.

A. State’s Mootness Argument As an initial matter, the State argues that this appeal is moot because applicant has been released early from community supervision. The record reflects4

that shortl y after applicant perfected appeal from the trial court’s habeas

- corpus order, the trial court signed an order in which the court terminated applicant’s community supervision after applicant had completed fifteen months of community supervision.

Texas Code of Criminal Procedure article 11.072 establishes the procedures for an application for a writ of habeas corpus in felony or misdemeanor cases in which the applicant seeks relief from a judgment of conviction ordering community supervision. Tex. Code Crim . Proc. Ann. art. 11.072 § 1 (West 2015). Article 11.072, entitled “Procedure in Community Supervision Case,” provides as
follows:
At the time the application is filed, the applicant must be, or have been, on community supervision, and the application mus t challenge the legal validity of (1) the conviction for which or order in which community supervision was imposed; or (2) the conditions of community supervision. When applicant filed his habeas

- corpus application, he was or had been on community supervision, an d he challenged the legal validity of the conviction for which community supervision was imposed. The trial court denied his application, and applicant timely appealed. 2 See Tex. Code Crim. Proc. Ann. art. 11.072 § 8. Nonetheless, the Texas Legislature has indicated that an applicant must be
confined or under restraint for habeas

- corpus relief to be appropriate. See Tex. Code Crim. Proc. Ann. art. 11.23 (West 2015) (stating that “[t] he writ of habeas corpus is intended to be applicable to all such case s of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though

2 In his application, a

pplicant challenged both his conviction and the conditions of c ommunity supervision, but this appeal deals only with a pplicant’ s challenge to his conviction.5

the power in fact exists, it is exercised in a manner or degree not sanctioned by
law ”); Ex parte Schmidt , 109 S.W.3d 480, 481

– 84 (Tex. Crim . App. 2003). The State argues that this appeal is moot because appellant is not confined or under restraint and his community supervision has been terminated. The Legislature has broadly defined the terms “confined” and “restraint.”
See Tex. Code Crim . Proc. Ann. art. 11.21 (West 2015) (stating that “confined” refers not only to the actual corporeal and forcible detention of a person, but likewise to any coercive measures by threats, menaces or the fear or injury, whereby one person exercises a control over the person of another, and detains him within certain limits”); id . art. 11.22 (West 2015) (stating that “restraint” means “the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to t he general authority and power of the person claiming such right”). This court has held that an individual is confined or under restraint, as necessary to seek habeas

- corpus relief, if the individual faces collateral consequences resulting from the convic tion in question. See Le v. State , 300 S.W.3d 324, 326

– 27 (Tex. App.

— Houston [14th Dist.] 2009, no pet.); Ex parte Wolf

, 296 S.W.3d 160, 166

– 67 (Tex. App.

— Houston [14th Dist.] 2009, pet. ref’d). An individual faces collateral consequences if the convicti on may have detrimental collateral consequences in some future proceeding. Tatum v. State , 846 S.W.2d 324, 327 (Tex. Crim. App. 1993). Potential deportation as a result of the conviction constitutes sufficient collateral consequences to support habeas

co rpus jurisdiction and to prevent a habeas

- corpus case from being moot. See Le , 300 S.W.3d at 326. See also Fiswick v. United States , 329 U.S. 211, 221

– 23, 67 S.Ct. 224, 91 L.Ed. 196 (1946) (concluding that court had jurisdiction to review
lawfulness of c onviction even though that sentence already had been served because of potential immigration consequences of conviction, including being6

subject to deportation and possible difficulty in establishing good character for naturalization purposes).

The recor d reveals that applicant holds a “green card.” Applicant argues that he will be subject to deportation if his conviction is not set aside. Because potential deportation is a collateral consequence, applicant is confined or under
restraint for habeas

- corp us purposes and may seek habeas

- corpus relief even though he is no longer subject to community supervision. See Le , 300 S.W.3d at 326. We conclude that this appeal is not moot.

B. Ineffective

- Assistance

- of

- Counsel Claims In his application for habeas

- corpus relief, appellant asserted various acts or
omissions of his trial counsel that he claims constituted ineffective assistance of
counsel. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. ame nd. VI; Tex

. C ONST

. art. I, §10. This right necessarily includes the right to reasonably effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Gonzales , 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel’s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel’s deficient performance. Strickland, 466 U.S. at 688

B 92. The reviewing court indulges a strong presumption that (1) counsel’s actions and decisions were reasonably profess ional and were motivated by sound trial strategy, and (2) that counsel’s conduct fell within the wide range of reasonable professional assistance. See Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To overcome the presumption of reasonable p rofessional assistance, any allegation of7

ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the ineffectiveness. See id . at 814.

The applicant for a writ of habeas corpus has the burden of proving the appl icant’s allegations by a preponderance of the evidence. Ex parte Wolf , 296
S.W.3d at 166. We review a trial court’s ruling on an application for writ of habeas corpus for an abuse of discretion. Ex parte Fassi , 388 S.W.3d 881, 886 (Tex. App.

— Houston [14 th Dist.] 2012, no pet.). We decide whether a trial court abused its discretion by determining whether the court acted without reference to any guiding rules or principles, or in other words, whether the court acted arbitrarily or unreasonably. Ex parte Wolf , 296 S.W.3d at 166. A trial court
abuses its discretion when its decision lies outside of the zone of reasonable disagreement. Id

. In reviewing the trial court ’ s ruling on a habeas

- corpus application, we must review the record evidence in the ligh t most favorable to the trial court ’ s ruling, regardless of whether the court’s findings are implied or explicit. Ex parte Fassi , 388 S.W.3d at 886. We review de novo the ultimate question of whether there is a reasonable probability that the result of t he proceeding would have been different
but for trial counsel’s allegedly deficient performance

. See Johnson v. State , 169 S.W.3d 223, 239 (Tex. Crim. App. 2005); Ex parte Fassi , 388 S.W.3d at 887. We must uphold th e trial court’s judgment as long as it is correct on any theory of law applicable to the case. See Ex parte Taylor , 36 S.W.3d 883, 886 (Tex. Crim. App. 2001) (per curiam).
On appeal, applicant asserts that the trial court erred by not finding ineffective assistance of counsel as to eight a cts or omissions of appellant’s trial8

counsel. 3

1. Counsel’s Closing Argument
In the eighth ground of ineffective assistance, applicant asserts that his trial counsel conceded during closing argument that applicant acted in a “totally unreasonable way that lacks common sense even at a basic level.” According to applicant, this concession amounted to ineffective assistance because the argument was affirmatively prejudicial. In an affidavit, applicant’s trial counsel stated that he was convinced by the
end of the trial that the jury believed applicant was either stupid or guilty, so he argued that applicant was stupid. Counsel stated that he should have crafted the argument in a different way so as to make the same point without conceding that applicant’s b ehavior was unreasonable. The trial court concluded that it was a reasonable trial strategy to acknowledge applicant’s odd behavior and shortcomings upfront. Applicant argues that this finding does not directly address counsel’s conduct in conceding that applicant acted unreasonably. Applicant was indicted for forgery. The jury charge explained that “[a] person commits forgery if he forges a writing with intent to defraud or harm another.” The jury was charged that “[a] person acts intentionally, or w ith intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire in the conduct [to] cause the result.” The record supports the trial court’s finding that counsel’s acknowledgment
of applica nt’s odd behavior upfront was a sound trial strategy. See Ex Parte Rogers , 369 S.W.3d 858, 862 (Tex. Crim. App. 2012). The record reveals that the jury received evidence that suggested applicant knew the money was counterfeit.

3 Applicant complained of ten acts or omissions of his trial counsel in his application in the trial court, but he has not argued two of these acts or omissions on appeal.9

To convince the jury that applicant did not know the money was counterfeit, counsel sought to gain credibility with the jury by admitting that applicant’s behavior seemed odd. Trial counsel then attempted to explain away the oddity. This decision was a calculated risk by trial co unsel. See Alexander v. State , 282 S.W.3d 701, 706 (Tex. App.

— Houston [14th Dist.] 2009, pet. ref’d) (noting that appellate courts cannot find deficiency from a calculated risk by trial counsel that simply did not work). Applicant objects to counsel’s u se of the term “unreasonable” as a descriptor for applicant’s actions. But, the jury was not required to determine whether or not applicant’s actions were reasonable; the inquiry put to the jury was whether or not applicant intended to pass counterfeit mo ney. In light of the charge and question before the jury, the fact that counsel used the term “unreasonable” in describing applicant’s actions does not make counsel’s strategy deficient. Applicant’s trial counsel took a calculated risk in arguing to the jury that applicant was naïve. That risk was reasonable given the evidence presented. See id . The record contains sufficient evidence to support the trial court’s finding that counsel’s legal representation of applicant did not fall below an objective st andard of reasonableness. Under the applicable standard of review, the trial court did not abuse its discretion in concluding that applicant did not prove by a preponderance of evidence the first prong of the test for ineffective assistance of counsel. S ee Ex parte Rogers , 369 S.W.3d at 862; Alexander , 282 S.W.3d at 706; Taylor v. State , 947 S.W.2d 698, 704 (Tex. App.

— Fort Worth 1997, pet. ref’d)

. Applicant’s argument is without merit.

2. Other Alleged Deficiencies
Applicant asserts that trial counsel was d eficient for seven additional reasons. The trial court found trial counsel was not deficient in any respect. There10

is no requirement that an appellate court address the prongs of the test for ineffective assistance of counsel in any particular order. St rickland , 104 S.Ct. at 2069; Hagens v. State , 979 S.W.2d 788, 793 (Tex. App.

— Houston [14th Dist.] 1998, pet. ref’d). Nor is there a requirement that appellate courts address both prongs of the test if one prong is not satisfied. Strickland , 466 U.S. at 6 97, 104 S.Ct. at 2069; Hagens , 979 S.W.2d at 793. The trial court made specific findings that the first, second, fourth , and sixth presumed deficiencies either did not affect applicant’s defense or were not prejudicial under the second prong of Strickland

. Although the trial court did not make findings regarding parts of applicant’s third, fifth, and seventh presumed deficiencies, and the trial court did not make an express conclusion of law as to whether applicant suffered prejudice based on the
other s even alleged deficiencies, the trial court made fact findings supporting a failure to prove the second prong of Strickland . Because we review the second prong of Strickland de novo and the trial court made findings that address prejudice, we conclude the trial court made sufficient fact

- findings in this regard to enable appellate review. We are to uphold the trial court’s judgment on any ground supported by the record. See Ex parte Fassi , 388 S.W.3d at 887. We presume for the sake of argument that couns el was deficient for these seven

reasons , and we determine whether the alleged deficiencies caused applicant to suffer prejudice.
Presuming, for the sake of argument, that counsel was deficient for the reasons expressed in applicant’s first seven groun ds, applicant still had the burden of proving in the trial court a reasonable probability that the result of the proceeding would have been different but for trial counsel’s allegedly deficient performance

. Ex parte Lane , 303 S.W.3d 702, 709 (Tex. Crim. A pp. 2009) . When assessing the second prong of the test for ineffective assistance of counsel,11

counsel’s alleged errors are examined not as isolated incidents, but in the context
of the overall record. Ex parte Menchaca , 854 S.W.2d 128, 132 (Tex. Crim. Ap p. 1993). Thus, we examine and clarify each of applicant’s grounds and determine whether the trial court’s specific findings of fact with respect to each ground are supported by the record before analyzing whether the record supports the
conclusion that a

pplicant did not show prejudice under the second prong of
Strickland

. First, applicant asserts that he received ineffective assistance of counsel because counsel failed to object to testimony from three different police officers (Captain Michael Berezin, Sergeant Saul Luera, and Officer Andrew Robb) that they had conducted searches revealing contraband in circumstances where the suspect cooperated with their investigation. According to applicant, counsel was deficient for failing to object to this testimo ny because it is irrelevant and inadmissible under Texas Rules of Evidence 401, 403, 701, or 702.
Applicant contends that this testimony showed that guilty people consent to searches. If the officer’s testimony had shown guilty people consent to searche s, the officers’ testimony may have undermined a possible inference by the jury that applicant’s consent to searches showed he did not believe he had committed a crime. But, the officers’ testimony did not show that guilty people consented to
searches. T he officers’ testimony did not address whether the other suspects were responsible for the contraband found during the searches or whether those suspects had acted with criminal intent. The officers did not state that the other suspects were guilty. Thus , the record supports the trial court’s determination that the testimony did not relate to applicant’s mental state. The record, and the trial court’s finding of fact, support the conclusion that the officers’ testimony did not undermine the jury’s abilit y to infer that applicant consented to the searches12

because he did not realize the money was counterfeit. See id. ; Ex parte Martinez , 330 S.W.3d 891, 904 (Tex. Crim. App. 2011). We conclude this testimony did not undermine applicant’s defensive theory. At trial, applicant argued that he did not intend to commit forgery because he did not know the money was counterfeit. The trial court determined that applicant’s mental state was the only contested issue and that the officers’ testimony did not relate to that issue. The trial court found the evidence of applicant’s guilt strong. According to the trial court, the only contested issue at trial was whether applicant knew the money he passed was counterfeit. The trial court made a finding that the followin g evidence strongly suggests applicant is guilty:

 Applicant discarded the mailing container in which he received the stacks of $100 bills.

 Applicant hid approximately $54,000 of the bills in a tin can in his master bathroom.

 The money applicant hid in the tin can had a “strong gassy” odor, the text was off, “glitter” rubbed off the money, and there were multiple bills with the same serial number.

 Before attempting to use the money to purchase a money order at one store, applicant made purchases for money or ders in the amounts of $568 and $852 at two other stores.

 Applicant kept his money order purchases below the amounts at which he would need to produce identifying information in case the currency was counterfeit.

 When applicant was turned away from the thi rd store, applicant drove out of the parking lot, spotted a police car, and drove back into the parking lot. He was subsequently detained by a police officer and asked what he was doing. Applicant responded that he was buying groceries. The record suppor ts the trial court’s findings that the evidence of applicant’s guilt
is strong. Applicant failed to prove by a preponderance of the evidence that , but13

for counsel’ s allegedly deficient performance, the result of the proceeding would
have been different. See Ex parte Lane , 303 S.W.3d at 712.
Second, applicant asserts that he received ineffective assistance of counsel because counsel elicited testimony in cross

- examining an investigating police officer, Captain Berezin, that Captain Berezin suspected both t hat (1) applicant knew the money was counterfeit and (2) applicant was making counterfeit money. Applicant complained in the trial court about Captain Berezin’s testimony that he suspected early on that applicant knew the money was counterfeit and he beli eved that applicant “possibly” was making counterfeit money. Captain Berezin testified that if those suspicions were not present, police would not have been investigating the matter. Applicant asserts that this testimony was improper expert testimony

un der Texas Rules of Evidence 701 and 702.
Captain Berezin testified three times that he did not form an opinion as to applicant’s guilt. The trial court found that while Captain Berezin testified that he would not have been investigating the matter if he did not suspect applicant knew the money was counterfeit , or that applicant was possibly making counterfeit money, the testimony did not go to the ultimate issue of whether applicant knew that the currency was forged. The jury knew that the police investi gated applicant and that the police ultimately arrested applicant. Based on the grocery
- store clerk’s testimony, the jury almost certainly presumed that the police at least suspected applicant had committed forgery. Captain Berezin explained that,
althou gh police had that suspicion, he did not form any opinion as to whether or not applicant actually knew that the currency was forged. Applicant does not explain how Captain Berezin’s testimony , that the police were investigating applicant because they susp ected he had committed the crime , was any more damaging than the facts the jury already knew. See Thacker v. State , 999 S.W.2d14

56, 68 (Tex. App.

—

Houston [14th Dist.] 1999, pet. ref’d) (holding that failure to object to inadmissible evidence was not ineffe ctive assistance of counsel because other evidence provided jury same information); Ex parte Martinez , 330 S.W.3d at
903. The record, therefore, contains evidence that supports the trial court’s finding that this testimony did not affect the jury’s verdic t. As detailed above, t he record
evidence also supports the trial court’s finding that the evidence of applicant ’s guilt
i s strong. Applicant failed to prove by a preponderance of the evidence that , but
for counsel’ s allegedly deficient performance, the result of the proceeding would
have been different. See Ex parte Lane , 303 S.W.3d at 712. Third, applicant asserts that counsel elicited inadmissible testimony from Secret Service Agent Audrey Gibson that it was common for individuals caught
with counterf

eit money to deny the money is counterfeit. Applicant asserts that the testimony was inadmissible because it was irrelevant under Texas Rules of Evidence 401, 402, 701, and 702. The trial court found that applicant cooperated with the investigation and c onsented to searches of his person, car, and residence. According to the trial court, counsel’s performance was not deficient because counsel contrasted applicant’s behavior with the behavior of individuals who did not cooperate with investigations. On a ppeal, applicant highlights the ways in which he did not cooperate with the investigation and concludes that Agent Gibson’s testimony was prejudicial because it communicated to the jury that guilty people sometimes profess their innocence. But, Agent Gibs on’s testimony does not require that conclusion. Agent Gibson testified that she had experience with individuals who claimed that counterfeit money was real and attempted to get the money back. Agent Gibson did not testify that these people were guilty o r that they knew the money was counterfeit, so her testimony did not address the only contested issue in the case. Given the fact that Agent Gibson’s testimony did not15

address the only contested issue in the case and the support in the record for the
tria l court’s finding that the evidence of applicant’s guilt i s strong, applicant failed to prove by a preponderance of the evidence that but for counsel’ s allegedly deficient performance, the result of the proceeding would have been different. See Ex parte L ane , 303 S.W.3d at 712. Fourth, applicant asserts that counsel was deficient in “opening the door” to the admission of testimony from Agent Gibson that Agent Gibson had never seen Nigerians prey on other Nigerians. During cross

- examination, counsel asked Agent Gibson if it were possible for Nigerians to prey on other Nigerians. Agent Gibson responded that it was possible. On redirect examination, the prosecutor elicited testimony from Agent Gibson that Agent Gibson had never seen a Nigerian target anothe r Nigerian. Applicant asserts that counsel was deficient in “opening the door” to the admission of this testimony because it would have been inadmissible under Texas Rules of Evidence 401, 403, 701, and 702 if counsel had not opened the door.
Agent Gibso n testified she had been working on the counterfeit squad only
six months. The trial court found Agent Gibson ’s testimony did not affect applicant’s ability to present his defensive theory. Applicant argues that he suffered prejudice from this testimony because Agent Gibson testified that Nigerians do not victimize other Nigerians. But, Agent Gibson’s testimony was only that she had not seen such victimization in her experience. Agent Gibson also testified that it was possible for Nigerians to be victim s of schemes by other Nigerians. This testimony bolstered applicant’s defense because Agent Gibson testified that there was a possibility applicant could have been targeted, even if she had not seen a Nigerian target another Nigerian. Particularly in lig ht of the supportive testimony counsel obtained by “opening the door,” and the support in16

the record for the trial court’s finding that the evidence of applicant’s guilt i s strong, we conclude that the record supports the trial court’s finding that this

te stimony did not prejudice applicant’s defensive theory. See Ex parte Lane , 303
S.W.3d at 712. Fifth, applicant asserts that counsel failed to object to improper cross

examination testimony from three defense witnesses regarding what those
witnesses would have done had they received a package containing a large amount of cash. Applicant asserts that the testimony of all three witnesses is inadmissible under Texas Rules of Evidence 401 and 403. According to applicant, the testimony of the second and third witnesses also constitutes improper impeachment of a character witness under Texas Rules of Evidence 405(a) and 608(a). The first witness, Joan Nwuli, testified regarding applicant’s conduct after applicant was arrested. On cross

- examination, Nwuli tes tified over counsel’s objection that she would call police if she received $54,600 in a tin can. But counsel did not object to a question that elicited testimony from Nwuli that, if she received a tin can containing $54,600, she “definitely” would not dep osit that money in the bank. Nwuli then explained that she has more “street smarts” than applicant. The trial court found this testimony provided an explanation for applicant’s unusual behavior. The record supports the trial court’s finding that
testimo ny supported applicant’s defensive theory by offering a potential explanation for applicant’s behavior

— he simply did not realize the money was
counterfeit.
The second witness, Chris Okeke, testified as a character witness on applicant’s behalf. Applica nt asserts that counsel provided ineffective assistance because counsel did not object to Okeke’s testimony that Okeke did not keep large
amounts of cash in a tin can in his bathroom or in tubes of lotion. The third17

witness, Myke Okafor, testified on cros s
- examination that he would call the police if he received a large amount of cash in the mail because he would think the money was counterfeit. Applicant asserts his trial counsel was ineffective for failing to object to this testimony.
The testimony fr om Okeke and Okafor did not contradict applicant’s testimony. Applicant’s defense was that applicant did not know the money was counterfeit and applicant argued that he was naïve. That a character witness
testified that if he received a large amount of money in the mail he would have thought it was counterfeit did not undercut applicant’s theory. We conclude, in light of the strong evidence of applicant’s guilt, applicant failed to prove by a preponderance of the evidence that but for counsel’s allegedl y deficient performance, the result of the proceeding would have been different. Sixth, applicant asserts that counsel was deficient in failing to object to a comment that insinuated applicant had participated in plea negotiations and in making a comment insinuating that applicant made statements or admissions at plea negotiations. Applicant asserts that the jury should not have heard any reference to his participation in plea negotiations or to admissions allegedly made as part of that process. See Tex. R. Evid. 410(4). Mentioning the accused’s participation in plea negotiations can be harmful because the jury could infer that individuals do not enter into plea negotiations if they are innocent. See Canfield v. State , 429 S.W.3d 54, 74 (Tex. App.

— Hous ton [1st Dist.] 2014, pet. ref’d). There is a risk jurors would conclude that an innocent person would not contemplate admitting guilt. Id. But, the potential harm depends
on the context of the trial. See id. ; Neugebauer v. State , 974 S.W.2d 374, 377 ( Tex. App.

—

Amarillo 1998, pet. ref’d).
At trial, counsel elicited testimony from applicant that he met with the18

prosecutor and offered to testify before the g rand j ury but was not allowed to testify. The prosecutor objected on the grounds that this testim ony “goes into some plea negotiations and whole other mounds of stuff in this case.” Counsel responded, “I’m not asking him any statements or admissions or any discussions during the plea negotiations, just the fact that he volunteered to come and discuss it, which relates to his state of mind.” The trial court found any deficiency in these statements did not cause applicant prejudice.
The record shows the testimony before the jury was somewhat ambiguous. The prosecutor objected to the testimony that ap plicant sought to testify before the g rand j ury on the grounds that it referenced plea negotiations and counsel responded to that objection by stating that it did not refer to the plea negotiations. The trial court found “counsel simply wished to show th at applicant had volunteered to come and discuss his case with the prosecutor, a fact ‘relating to his state of mind.’” Counsel did not affirmatively state that plea negotiations occurred. Still, even though counsel’s comment was made in the context of

r efuting the State’s assertion, applicant complains the jury might have concluded that counsel engaged in plea negotiations because counsel referred to “ the plea negotiations.” 4 Yet, the jury also could have concluded that counsel simply was responding to t he State’s objection fully, by explaining that the testimony did not refer to a statement, admission, or discussion during plea negotiations. Accordingly, the record contains evidence that supports the trial court’s finding that the statement “simply” sho wed applicant volunteered to discuss the case with the prosecutor. Although we acknowledge the possibility that applicant’s counsel’s statement caused applicant some harm, we conclude, based on the strength of the

4 Emphasis added.19

evidence of applica nt’s guilt, and the amb iguous nature of the stray reference to plea negotiations, applicant did not prove that but for the statement, the result of the proceeding would have been different. See Canfield , 429 S.W.3d at 74.
Seventh, applicant asserts that counsel was deficient in failing to object to the prosecutor’s query asking applicant whether Agent Gibson was lying when she said the money was counterfeit. Applicant responded to this question by stating that he thought the money might be counterfeit, but h e denied saying Agen t Gibson
lied . Applicant asserts that this question was impermissible because a witness may not give an opinion regarding the truth or falsity of another witness’s testimony.
Applicant does not specifically state how th e question caused him to suffer

pr ejudice. Rather than attack Agent Gibson’s testimony, applicant stated that he thought the money might be counterfeit. Applicant’s defense strategy was to explain how he did not know the money was counterfeit and did not intend to pass counterfeit money. His answer that Agent Gibson might be right about the money being counterfeit did not affect his defense. He denied stating that Agent Gibson was lying. We conclude, in light of the strong evidence of applicant’s guilt, applicant failed to prove by a p reponderance of the evidence that but for counsel’ s allegedly deficient performance, the result of the proceeding would have been
different. See Ex parte Lane , 303 S.W.3d at 712. Based on the evidence presented against applicant and the nature of all seve n of the presumed deficiencies, we conclude that the record supports the conclusion that applicant did not show a reasonable probability that the result of the proceeding would have been different but for any one or more of the alleged
deficiencies. Accor dingly, the record supports a denial of habeas

- corpus relief as to the first through seventh grounds based on the second prong of Strickland. See
id. ; Ex parte Napper , 322 S.W.3d 202, 250 (Tex. Crim. App. 2010); Adekeye v.20

State , 437 S.W.3d 62, 75 (Tex. A pp.

— Houston [14th Dist.] 2014, pet. ref’d)

. For the foregoing reasons, a pplicant’s sole appellate issue is overruled and the trial court’s order denying habeas

- corpus relief is affirmed.

/s/ Kem Thompson Frost Chief Justice

Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do Not Publish

— T EX

. R. A PP

. P. 47.2( b).