Affirmed and Majority and Concurring Opinions filed July 12, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00112-CR

JAMIE GREEN, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 184th District Court 

Harris County, Texas 

Trial Court Cause No. 1444798 

C O N C U R R I N G O P I N I O N 

Though I agree with the court’s decision to overrule appellant’s ineffectiveassistance-of-counsel issue, I write separately to provide a different analysis of this 

issue and to address text in this court’s Milburn v. State opinion that suggests an 

incorrect legal standard.1

 

1

See Milburn v. State, 15 S.W.3d 267, 271 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).
2

Under his first issue, appellant Jamie Green argues that the trial court abused 

its discretion in rejecting several ineffective-assistance-of-counsel claims appellant 

asserted in his motion for new trial. We review the trial court’s ruling on a motion 

for new trial for an abuse of discretion.2 A trial court abuses its discretion if it acts 

in an arbitrary or unreasonable manner or without reference to any guiding rules or 

principles.3

 When deciding whether the trial court abused its discretion, we view 

the evidence in the light most favorable to the trial court’s ruling and defer to its 

credibility determinations.4 Because we presume that the trial court implicitly made 

all reasonable factual findings that could have been made in support of its ruling, the 

trial court abused its discretion only if no reasonable view of the record could support 

the ruling.5

To prevail on one of his ineffective-assistance claims, appellant had to show 

by a preponderance of the evidence that his trial lawyers’6 allegedly deficient 

performance was “‘so serious as to deprive appellant of a fair trial, a trial whose 

result is reliable.’”

7

 Appellant also had to establish a reasonable probability that, but 

for his attorneys’ deficient performance, the result of the proceeding would have 

been different.8

 A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.9 To determine whether appellant suffered prejudice due 

 

2

See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other 

grounds by Tex. R. App. P. 21.8(b).

3

See id.

4

Id.

5

Id.

6 Two lawyers represented appellant at the time the alleged ineffective assistance occurred. 

7 Ex parte Martinez, 195 S.W.3d 713, 730 (Tex. Crim. App. 2006) (quoting Strickland v. 

Washington, 466 U.S. 668, 687 (1984)). 

8

See Strickland, 466 U.S. at 694; Ex parte Martinez, 195 S.W.3d at 730.

9

See Strickland, 466 U.S. at 694; Ex parte Martinez, 195 S.W.3d at 730.
3

to his trial lawyers’ alleged deficient performance, the trial court reweighed the 

evidence in aggravation against the totality of available mitigating evidence.10

 To 

prove prejudice, appellant had to show a reasonable probability that the jury’s 

assessment of punishment would have been different if the jury had heard evidence 

that appellant’s attorneys failed to offer during the punishment phase.11

 “The 

likelihood of a different result must be substantial, not just conceivable.”12

Appellant argues that the performance of Cline and Moran—appellant’s 

lawyers during the punishment phase of trial—was deficient because, due to their 

inadequate investigation, they did not present any mitigating evidence during the 

punishment phase. Appellant focuses his argument on three separate claims: (1) his 

lawyers should have asked his mother, father, and pastor to testify; (2) his lawyers 

should have requested funds for the appointment of an expert witness; and (3) his 

lawyers should have offered into evidence his medical records, which showed, 

among other things, that he struggled with depression and suicidal thoughts. For the 

sake of argument, this court presumes, without deciding, that the performance of 

appellant’s lawyers was deficient and then proceeds to an analysis of prejudice. 

As to the failure to present evidence from appellant’s mother, father, and 

pastor, appellant cannot show prejudice because evidence before the trial court on 

the motion for new trial showed that appellant instructed his counsel “not to prepare 

witnesses for mitigation” and that, after the guilt/innocence phase of trial, appellant 

refused Cline’s offer to move for a continuance so that she might try to obtain 

witnesses in mitigation.13 This court must credit this testimony because it supports 

 

10 See Wiggins v. Smith, 539 U.S. 510, 534 (2003); Ex parte Martinez, 195 S.W.3d at 730.

11 See Ex parte Martinez, 195 S.W.3d at 730–31.

12 Harrington v. Richter, 562 U.S. 86, 112 (2011).

13 See Schriro v. Landrigan, 550 U.S. 465, 475 (2007) (“The Court of Appeals first addressed the 
4

the trial court’s ruling.14 Yet, the record contains no evidence that appellant 

instructed his counsel not to present any mitigation evidence, only that appellant 

instructed counsel not to prepare witnesses to testify to mitigating evidence during 

the punishment phase; therefore, this legal rule does not reach appellant’s 

ineffective-assistance-of-counsel claim as to his lawyers’ failure to offer appellant’s 

medical records into evidence during the punishment phase.15

 

Appellant argues that under this court’s opinion in Milburn v. State, we must 

not speculate as to whether the evidence that his counsel failed to present during the 

punishment phase would have influenced the jury in appellant’s favor, and appellant 

need only show a possibility that any such evidence might have influenced the jury’s 

assessment of punishment.16

 Appellant bases this argument on the following 

paragraph from the Milburn opinion: 

In any event, we find that appellant has demonstrated prejudice in this 

case, even though it is sheer speculation that character witnesses in 

mitigation would have in fact favorably influenced the jury’s 

assessment of punishment. Counsel’s lack of effort at the punishment 

phase of trial deprived appellant of the possibility of bringing out even 

a single mitigating factor. Mitigating evidence clearly would have been 

admissible. The jury would have considered it and possibly been 

influenced by it.17

 

State’s contention that Landrigan instructed his counsel not to offer any mitigating evidence. If 

Landrigan issued such an instruction, counsel’s failure to investigate further could not have been 

prejudicial under Strickland.”). 

14 See Charles, 146 S.W.3d at 208.

15 See id. The majority appears to apply this rule to all of appellant’s ineffective-assistance-ofcounsel claims. See ante at 7.

16 See Milburn, 15 S.W.3d at 270–71.

17 Id. at 271 (citations omitted).
5

 Read in isolation, this paragraph might seem to support appellant’s 

argument.18 Yet, in other parts of the Milburn opinion, this court discussed the 

evidence as to what the twenty available mitigation witnesses’ testimony would have 

been if each had been called to testify during the punishment phase of the trial of the 

defendant convicted of cocaine possession, including testimony that the defendant 

was an excellent father to his special-needs daughter and that the defendant was an 

outstanding employee.19

 The Milburn court concluded that there was a reasonable 

probability that the jury would have assessed a less-severe punishment had the jury 

been able to consider the mitigating evidence shown at the hearing on the motion for 

new trial.20

 Though the Milburn court used language suggesting a different and 

incorrect legal standard, the court did not actually apply a legal standard different 

from that established by binding precedent from the Supreme Court of the United 

States and the Court of Criminal Appeals of Texas.

21

 To show prejudice regarding mitigating evidence, a defendant must show 

what the evidence would have been if it had been offered during the punishment 

phase, and the defendant must show a reasonable probability that the jury’s 

assessment of punishment would have been different if the jury had heard this 

evidence.22 The trial court did not abuse its discretion in concluding that appellant 

did not show a reasonable probability that the jury’s assessment of punishment 

 

18 The majority finds no basis in the Milburn opinion to support appellant’s argument. See ante at 

8.

19 See id. at 269–70.

20 See id. at 271.

21 See Wiggins, 539 U.S. at 534; Ex parte Martinez, 195 S.W.3d at 730; Strickland, 466 U.S. at 

694.

22 See Ex parte Martinez, 195 S.W.3d at 730–31. Appellant has not shown what evidence would 

have been presented during the punishment phase if his counsel had obtained funds for the 

appointment of an expert witness.
6

would have been different if the jury had been able to consider appellant’s medical 

records in assessing punishment.23 

 

 /s/ Kem Thompson Frost

 Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Jamison. 

(Christopher, J., majority).

Publish — Tex. R. App. P. 47.2(b). 

 

23 See Ex parte Martinez, 195 S.W.3d at 730–31; Washington v. State, 417 S.W.3d 713, 728 (Tex. 

App.—Houston [14th Dist.] 2013, pet. ref’d).