### No. 14-14-00091-CR

In the



### Court of Appeals

for the



### Fourteenth District of Texas

at Houston





### No. 1400039

In the 185 th District Court

Harris County, Texas





### ADRIAN FRANCISCO MIRANDA

Appellant

V.



### THE STATE OF TEXAS

Appellee





### APPELLANT’S MOTION FOR REHEARING



M ANDY M ILLER

Attorney for Adrian Francisco Miranda

State Bar No: 24055561

2910 Commercial Ctr. Blvd., Ste. 103-201

Katy, TX 77494

(832) 900-9884

Fax: (877) 904-6846

mandy@mandymillerlegal.com ACCEPTED

14-14-00091-CR

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

5/7/2015 9:31:35 PM

CHRISTOPHER PRINE

CLERKTABLE OF CONTENTS

INDEX OF AUTHORITIES

................................................................................................. ii

APPELLANT’S GROUND FOR REHEARING

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

PRELIMINARY STATEMENT

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

GROUND FOR REHEARING

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

CONCLUSION

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

CERTIFICATE OF SERVICE

.............................................................................................. 6

iINDEX OF AUTHORITIES

CASES

Miranda v. State,

No. 14-14-00091-CR, 2015 WL 1870329 (Tex. App.--Houston

[14th Dist.] Apr. 23, 2015, no pet. h.) (not designated for publication)

................... 2, 3

Strickland v. Washington,

466 U.S. 668 (1984)

........................................................................................................... 1, 4

United States v. Cronic,

466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984)

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

RULES

T EX

. R. A PP

. P. 49.1

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

T EX

. R. A PP

. P. 49.7

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

iiTO THE HONORABLE COURT OF APPEALS:

COMES NOW, APPELLANT, by and through his undersigned attorney, and

pursuant to Rule 49.1 of the Texas Rules of Appellate Procedure

, and respectfully

requests the panel of this Court reconsider its opinion in this cause delivered on April

23, 2015. In support thereof, the State would show the panel of this Court the

following:

APPELLANT’S GROUND FOR REHEARING

The panel erred in finding that appellant had not he suffered prejudice

under the second prong of Strickland v. Washington 1 when trial counsel

was deficient for eliciting testimony that appellant had previously been

charged with a sexual offense and then having appellant admit he was

untruthful with the jury. Specifically, under these circumstances,

prejudice can be presumed.

1 466 U.S. 668 (1984)PRELIMINARY STATEMENT

Appellant was charged by indictment with aggravated sexual assault of a child.

(CR 7). A jury convicted appellant of the charged offense. (CR 183, 184). Appellant

chose to forgo punishment by jury and the court sentenced him to 25 years

confinement in the Institutional Division of the Texas Department of Criminal

Justice. (CR 183, 184). This appeal followed.

On April 23, 2015, a panel of this Court issued an unpublished opinion

affirming appellant’s conviction. Miranda v. State, No. 14-14-00091-CR, 2015 WL

1870329 (Tex. App.--Houston [14th Dist.] Apr. 23, 2015, no pet. h.) (not designated

for publication)

. Appellant now files this motion for rehearing.

GROUND FOR REHEARING

The panel erred in finding that appellant had not established he suffered

prejudice under the second prong of Strickland v. Washington when trial

counsel was deficient for eliciting testimony that appellant had previously been

charged with a sexual offense and counsel also had appellant admit he was

untruthful with the jury. Under these circumstances, prejudice can be

presumed.

Appellant took the stand and testified on his own behalf and denied all of the

accusations against him. On redirect examination, counsel asked appellant whether he

had ever previously been charged with a sex crime. (RR IV 193). Appellant testified

that he had not. (RR IV 193). However, the State approached the bench and

informed the court that appellant had, as a juvenile, been charged with indecency with

a child. (RR IV 195). Counsel knew of this offense because the State gave notice and

2it was in the clerk’s file. (CR 76, 78-80; RR IV 196). Yet, counsel’s only response to

the State’s assertion that counsel had “opened the door” was that the charge was

dismissed. (RR IV 195). But counsel asked appellant whether he had ever been

charged with a sex crime, not whether he had been convicted.

Counsel then followed up by asking appellant, in front of the jury, whether his

testimony that he had never been charged with a sex crime was truthful. (RR IV 196).

Appellant responded that it was not and counsel passed the witness. (RR IV 196).

The State did not ask any further questions and both sides rested. (RR IV 197). The

very last evidence the jury received was that appellant had previously been charged

with a “sexually-based offense.” (RR IV 196). Counsel did not elicit testimony that

the charge occurred when he was a juvenile, and did not inform the jury that it was

dismissed. They only knew that appellant was involved in some sort of sexual crime

and that he had lied to them initially when he said he had never been charged.

This Court agreed that counsel’s performance “very well could amount to

deficient performance under Strickland because appellant’s defense rested almost

entirely on his credibility versus the complainant’s credibility.” Miranda

, 2015 WL

1870329, at *5. This Court also noted that the record revealed no valid trial strategy

for counsel’s opening the door to the extraneous offense. Id

. at n.3. Despite

counsel’s deficient performance, this Court found that appellant did not demonstrate

that he was prejudiced because “the evidence of the extraneous offense was extremely

brief.” Id

. at *6.

3Certain types of errors by counsel are considered so serious that prejudice is

presumed. Strickland

, 466 U.S. at 692, 104 S.Ct. at 2067; United States v. Cronic, 466

U.S. 648, 659 n. 25, 104 S.Ct. 2039, 2047 n. 25, 80 L.Ed.2d 657 (1984). In cases

involving those errors, a defendant is not required to affirmatively prove prejudice

under the second prong of the Strickland test. For example, in a denial of counsel

case, and in certain types of government interference cases, prejudice is presumed

because “prejudice in these circumstances is so likely that case-by-case inquiry into

prejudice is not worth the cost.” Strickland, 466 U.S. at 692. The Supreme Court also

recognized that a “more limited” presumption of prejudice will apply when a

defendant alleges actual ineffectiveness based on counsel’s conflict of interest. Id.

However, the Court hesitated to presume prejudice in all actual ineffectiveness cases.

Id. at 693.

Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement

that the defendant affirmatively prove prejudice.... Attorney errors come

in an infinite variety and are as likely to be utterly harmless in a particular

case as they are to be prejudicial. They cannot be classified according to

likelihood of causing prejudice. Nor can they be defined with sufficient

precision to inform defense attorneys correctly just what conduct to

avoid. Id.

While concern over the uncertainty of prejudice and the inability to define deficient

conduct is valid in many situations, such concern is unjustified in this case.

Appellant was charged with aggravated sexual assault of a child. Appellant

testified on his own behalf and denied the allegations against him. Thus, appellant’s

4defense hinged on the jury’s evaluation of his credibility. Through trial counsel’s

direct examination, the jury was allowed to hear that appellant was previously charged

with another sexually-based offense. Additionally, the jury learned that appellant lied

about never being charged, thus continuing to injure his credibility. This was the last

evidence presented to the jury before closing arguments. By finding that appellant did

not establish prejudice from his counsel’s deficient conduct, this Court ignored the

enormous impact counsel’s actions would have had on the jury and how it would have

affected its decision on appellant’s guilt or innocence. Under these circumstances,

prejudice can, and should, be presumed.

CONCLUSION

It is respectfully submitted that appellant’s motion for rehearing should be

granted, and that his conviction should be reversed and the cause remanded for a new

trial.

/s/ Mandy Miller

M ANDY M ILLER

Attorney for Adrian Francisco Miranda

State Bar No: 24055561

2910 Commercial Ctr. Blvd., Ste. 103-201

Katy, TX 77494

(832) 900-9884

Fax: (877) 904-6846

mandy@mandymillerlegal.com

5CERTIFICATE OF COMPLIANCE

In accordance with the Texas Rules of Appellate Procedure, I hereby certify

that appellant’s supplemental brief, filed on May 7, 2015, has 1,348 words based upon

a word count under MS Word.

/ S /Mandy Miller

M ANDY M ILLER

Attorney for Adrian Francisco Miranda

2910 Commercial Center Blvd., Ste. 103-201

Katy, TX 77494

SBN 24055561

(832) 900-9884

FAX (877) 904-6846

mandy@mandymillerlegal.com

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been delivered via

electronic mail to the following:

Alan Curry

curry_alan@dao.hctx.net

/s/ Mandy Miller

M ANDY M ILLER

6