### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00238- CR NO. 03-11-00473- CR NO. 03-11-00474- CR NO. 03-11-00525- CR

Elridge Vand erhorstHills , Jr., Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 426 TH JUDICI AL DISTRICT NOS . 670 20 & 670 21, H ONO RAB LE F ANCY H. JEZEK, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Elridg e Vande rhorst Hills, Jr., w as char g ed with ha rassing J immy Evans and Alex ander Cruz-Nazario, officers at the Bell County J ai l (t h e j ail) where Hills was an inmate
at the time. See Tex. Penal Code Ann. § 22.01 (West 2011). Following a bench trial in which Hills

re p resented himself but was appointed standby counsel, the district court convicted Hills of the char g ed offe nses and sentenc ed hi m t o fourtee n y ear s’ imprisonment. I n three issues on appea l, 1 Hills, who is proce eding pro se, asser ts that the State withheld exculpatory evidenc e in violation of Brady v. Maryland , 373 U.S. 83 (1963); that the district court “fur there d” the alleg ed Brady violation

Punishm ent was enhanc ed by Hills’s prior conviction in South Carolina for the offe nse of 1 distribution of cra ck coca ine. The rec ord also ref lects that Hills had a prior conviction in Texas for the offe nse of assault on a public serva nt and a prior fede ral conviction for the offe nse of possession of a f irea rm by a convic ted fe lon.by quashing what Hills char acte rizes as a subpoena duces tecum; and that standby counsel provided

ineffe ctive assistance by “par taking ” in the alleg ed Brady violation. We will aff irm the judgme nts 2 of convic tion. 3

BACK GR OUND

The district court hear d evidenc e that on September 5, 2010, Evans, a shift supervisor in the j ail, was escorting Hills to the j ail ’s “m ultipurpose room,” which, in addition to being used for g ener al rec rea

tional and assembly purposes, also contains a law library

. Evans testified that when

The arg uments in Hills’s b ri ef ar e prese nted in such a manner as to be near ly 2 incomprehe nsible. I n identify ing his issues on appea l, we have construed the briefing rules liberally as we are required t o d o , an d l o o ked to the s ubstance of hi s contentions as best as we can discern them. See Tex. R. App. P. 38.9. Howeve r, to the extent that Hills purports to r aise any additional issues in his brief, we find that they are inadequa tely briefe d and are there fore waived. See Tex. R. App. P. 38.1(i) (appe llant’s brief must contain clea r and co n ci s e ar gument for contentions made, with appropr iate citations to authorities and rec ord); see also Faretta v. California , 422 U.S. 806, 834 n.46 (1975) (“The rig ht of self-repr esenta tion is not

. . . a li cense not to comply with rel evant rules of proce dural and s u b s t anti ve law.”) ; Alvarado v. State , 912 S.W .2d 199, 210 (Tex. Crim. App. 1995) (“ [T] he right t o appellate revie w ex tends only to complaints made in ac corda nce w ith our rules of appellate proce dure.” ); Perez v. State , 261 S.W .3d 760, 764 n.2 (Tex. App.—Houston [14t h Dist.] 2008, pet. ref ’d) (“[W] e hold a pro s e ap p el l an t to the same standards as a licensed attorney , and re quire [him] to comply with applicable la

ws and rule s of proc edure .”). We have previously consol i d ated the cause s on appea l for recor d and briefing purposes. 3 See Hills v. State , Nos. 03-11-00238- CR, 03-11 -0 0 4 7 3-CR, 03-11-00474- CR, 03-11-00525- CR, 2012 Tex. App. L EXI S 2125 (Tex. A pp.—Austin Ma

r. 15, 2012) (pe r cur iam order ). I n appellate cause number 03-11-00238- CR, Hills has filed a notice of appea l from an order rela ting to a pretria l motion that he had filed see king to r ecuse the di strict court judg e, which w as denie d. I n appellate cause number 03-11-00525- CR, Hills has filed a notice of appeal from the district court’s denial of his motion for new trial. I n appellate cause number 03-11-00473- CR, Hills has filed a notice of appea l from the final judgme nt of conviction in trial court cause number 67020. I n appellate cause number 03-11-00474-CR, Hills has filed a noti ce of appea l from the final j udg ment of conviction in trial court cause number 67021. On appea l, Hills has not briefe d the issues that wer e raised in his rec usal motion or in his motion for new trial. Acc ording ly , any issues involving those order s have been w aived. See Tex. R. App. P . 38.1.

2they arr ived at the entra nce to the room, Hills reque sted to make copies of cer tain docu m en t s b ut Evans ref used the reque st. As a result, Hills beca me “ag itated” and ref

used to enter the room despite Evans order ing him to do so. Acc ording to Evans, during the ensuing confr ontation, Hills told him, “I oug ht to just spit in y our fac e.” Evans explained that Hills then “hocke d up” his saliva and spit in Evans’s fac e and nose. Shortly there afte r, other office rs arr ived and restra ined Hills. Evans further testified that as he and other office rs wer e taking Hills back to his cell, Hills stated, “I ’ll do it ag ain. They never did any thing to me a

bout y our ca se. Watch, I ’ll do it ag ain.” Hills then proc eede d to 4 spit in Evans’s fac e a second time. This time, Hills’s saliva also contac ted Cruz-Nazario, who had assis ted with restra ining Hills and transporting him back to his cell. Cruz-Nazario testified that when Hills spit in E vans’s fac e, the saliva also contac ted the left side of his f orehe ad. When the office rs finally secur ed Hills in his cell, Evans rec alled, Hills “ca me to the door and said, ‘I ’m just g oing to have to murde r one of

y ou.’” The incident was observe d in part by corr ectional office rs R i chard Tay lor, I smael C o lon, and Madeline Adkins, eac h of whom testified for the State and corr oborate d the

acc ounts of Evans and Cruz-Nazario. Also admitted into ev i d en ce was a video rec ording taken from one of t he security came ras in the j ail which captured Hills’s first occur renc e o f s p i t t i n g but not the second. Hills testified in his defe nse. Hills denied the cha rg es ag ainst him but claimed that if he did spit in Evans’s face, h e had been “provoke d” into doing so by Evans, who, acc ording to

The rec ord does not specify the “ca se” to which Hills was ref err ing. Howeve r, the rec ord 4 ref lects that Hills and Evans had a histo ry o f i n tera ction at the jail which included Hills filing a g rieva nce a g ainst Evans for

interfe ring with Hills’s “business” and “ leg al disputes.”

3Hills, had antag onized him prior to the first instance of spitti ng and had ch o k ed h i m prior to the

second instance of spitti ng . Throug hout trial, Hills asser ted that the sec urity

came ra should have 5

rec orded Evans’s actions, and he claimed that be cause it did not, j ail officia ls must have withheld

or tampere d with the “missing” portions of the rec ording

. Howeve r, the jail officia ls who testified
at trial explained that the came ra simply failed to r ecor d the entirety of the incident, due to either a

came ra malfunction or a lack of came ra cover ag e in cer tain are as of the jail. I t is the availability of this recor ding a

nd rela ted evidenc e which f orms the basis for H ills’s iss ues on appe al.

ANALYSIS Alleged Brady violation

I n his first issue, Hi l l s asserts that the State violated Brady v. Maryland by wit h h olding cer

tain portions of the video rec ording

. See 373 U.S. at 87. The State responds that there was no Brady violation because the prosec utors provided Hills with the only rec ording that exis ted. The State also arg ues that Hills has failed to show how the alleg edly withheld evidenc e was materia l to his case.

A defe ndant in a criminal case has no g ener al rig ht to pretria l discovery of evidenc e in the State’s possession. See W eatherford v. Bursey , 429 U.S. 545, 5 5 9 (1977); Pena v. State , 353 S.W .3d 797, 809 n.10 (Te x . Crim. App. 2011); Hall v. State , 283 S.W .3d 137, 163 (Tex. App.—Austin 2009, pet. ref ’d). Howeve r, under Brady and its prog eny , there exis ts a fede ral constitutional rig ht to cer

tain minimal discovery

. See United States v. Bagley , 473 U.S. 667 (1985);

Evans testi fied that what Hill s char acte rized as “c hoking” was inst ead Evans put ting his 5 hands to Hills’s fac e in an a ttempt to restrain him and pre vent furthe r spitting. 4United States v. Agurs , 427 U.S. 97 (1 9 7 6 ); P en a , 353 S.W .3d at 809; Hall , 283 S.W .3d at 163.

That rig ht is violated only if: (1) the State failed to disclose evidenc e, reg ardle ss of the prosec ution’s g ood or bad faith; (2) the withheld ev i d en ce is favor able to the acc used; and (3) the evidenc e is materia l, that i s , t here is a rea sonable probability that had the evidenc e been disclosed, the
outcome of the trial would have been differ ent. Hampton v. State , 86 S.W .3d 603, 612 (Tex. Crim. App. 2002); Hall , 283 S.W .3d at 163. 6

I t does not appea

r that Hi l l s h as prese rved a Brady complaint for our revie w. To prese rve err or, a complaint must be “made to the trial court by a timely reque st, objection, or motion
t h at

. . . state[s] the g rounds for the ruling that the complaining party soug ht from the trial court with sufficie nt specific ity to make the trial court awa re o f t h e compl aint, unless the specific g rounds wer e appar ent from the context.” Tex

. R. App. P. 33.1(a) (1)( A). The rec ord must also show that the trial court “ ruled on the reque st, obje ction, or motion, either expressly or implicitl y ” or “refuse d to rule o n the request, objection, or motion, and the complaining party objected to the ref usal.” Te x . R. App. P. 33.1(a)(2)

.

Hills made no specific claim prior to trial, during trial, or in his motion for new trial that the State had withheld exculpatory evidenc e in violation of Brady

. I nstead, afte r revie wing the

rec ording immediately prior to trial, Hills complained to the district cou rt t hat the rec ording was incomplete and that, as a result, “ther e’s no way to sa y ” what had happene d during the unrec orded

Additionally , the evi dence centr al to the Brady claim must be admissible in court. See 6 Ex parte Kimes , 872 S.W .2d 700, 703 (Tex. Crim. App. 1993).

5portion of the incident. I n response , the district court stated, “Well, that’s what this trial is

about, sir.” Hills then questioned “why in this circ umstance that [camera ] ang le was not g iven.” The district court replied, “I ’ll let y ou addre ss that in the course of this trial.” Hills proc eede d to do so, extensively questioning sever al witnesses during trial reg arding the opera tion of the secur ity came ra and the rec ording that it had produce d. Then, during his own testimony , Hills specula ted, “And there

are [camera ] ang les that haven’ t been prese nted. And I fee l as though that’s been delibera tely done in an act of bad faith to hide further provoking s [si c] on behalf of Corporea l J immy Evans beca use he did choke me.” Finally , i n h i s closing arg ument, Hills asser

ted, “The exhibi ts contribute to highlig hting or elucidating , or what provoked me into doing what I did, along with w hat I call [an]
act of bad faith for the other ang le of the whole incident to be excluded. That’s

. . . another showing that my case . . . was damag ed today , beca use t h at cover ag e would have clea rly shown

. . . the man choking me.”

Even if we wer e to liberally construe Hills’s trial arg uments as a compl aint that the State had withheld exculpatory evidenc e in vi o l at i o n of Brady , the district court made no express ruling on any such complaint. There fore , for err or to have been prese rved, the district court must have impli citly overr uled Hil ls’s p u rported Brady complaint. On t his rec ord, t here does not appea r to be any such ruling , either d u ri n g t ri al or at the hear ing on the motion for new trial. Cf

. Pena , 353 S.W .3d at 807-08 (explaining prese rvation of err or in context of Brady violation and holding that “the rec ord of t h e m o t i o n for a new trial hear ing ref lects that the Brady issue was prese rved for appea l”); Clarke v. State , 270 S.W .3d 573, 579 (Tex. Crim. App. 2008) (holding that appellant pr eser

ved er ror by arg uing Brady claim at hea ring on motion for new tria l).

6Howeve r, even if we wer e to find that Hills proper ly raised a Brady complaint and

that the district court implicitl y overr uled that complaint, the rec ord would support implied finding s by the district court that Hills had fa iled to establish a Brady violation. The recor d ref lects t hat at

a pretria l hear ing approximately three months prior to trial, the prosec utors provided the video rec ording of the incident to Hills’s standby counsel. T h e re cord supports a finding by the district court that no rec ording exis ted other than the one that the S tate provided. At trial, sever al witnesses attempted to explain to Hills why the came ra did not rec ord the enti re i ncident. When Hills asked Evans why the came ra did not rec ord the second instance of spitti ng , Evans tes tified, “B eca use not ever

y inch of the jail is cover ed by a came ra.” L ater , Offic er Tay lor testified, “The re is a came ra in front in the corne r of the multipurpose door, but I don’t believe the came ra shows the hall wher e y ou spat the second time on him.” Additionally , there was testimony prese nted that the

came ra might not have been functioning proper ly at the time of the incident. Offic er Cruz-Nazario testified that the ca

mera “could wor

k, but it had a ver

y sensitive touch. I t c an automatically g o on its o wn o r automatically g o down.” When asked if there wer e “any problems with the came ra,” Officer Adkins testified, “Oh, y es, m a’a m. We had a work order put in on that came ra for at l ea s t two months.” She added, “I t was ve ry s ensitive. At cer tain times it would just g o straig ht up into the ceiling and just fix ate on the ceiling

. Then it would g o straig ht to the floor. And it was all over the place .” I n response to a question as to why the entire incident wa s n o t “p re s erve d” on video, Major Robert Patterson, the jail administrator, testified, “I think when y ou say it’s not prese rved, it’s misleading

. I f the sy stem was malfunction[ing], if one of the came ra ang les was not opera ting, it’s
not g oing to rec ord. And it won’t be able to be retrie ved, and there fore , we can’ t arc hive it.” Ba sed

7on this and other testimony , the di strict court could have rea sonably dete rmined t hat t here was no

other rec ording for the State to disclose. See Hafdahl v. State , 805 S.W .2d 396, 399 n.3 (Tex. Crim. App. 1990) (“

Brady and its prog eny do not r equire prosec uting a uthorities to disclose exculpatory information to defen d an t s t h at t he State does not have in its possession and that is not known to exis t.”); Harwood v. State , 961 S.W .2d 531, 545 (Tex. App.—San Antonio 1997, no pet.) (“The State is not obliga ted to produce evidenc e of which it has no knowledg e, and [appellant] has not demonstrated tha t the State knew a bout or eve r possessed the tapes.” ). Moreove r, even if another rec ording of the incident exis ted and the State had failed
to disclose it, the rec ord further supports an implied finding that Hills failed to demonstrate how the

u n d i s cl osed evidenc e would have been materia l to his case . Undisclosed evidenc e is “mater i al ”
t o g uilt or punishment “only if there is a rea sonable probability that, had the eviden ce b ee n disclosed to the defe nse, the result of the proce eding would have been differ ent.” Hall , 283 S.W .3d
at 171 (quoting Bagley , 473 U.S. at 682). A “re asonable probabi l i t y ” is “a probability sufficie nt to undermine confide nce in the outcome.” Id

. I n o t h er wo rd s , “[t] he question is not whether the defe nd an t wo u l d m o re likely than not have rec eived a differ ent verdic t with the evidenc e, but whether in its absenc e he rec eived a fair trial, understood as a trial resulting in a v er dict worthy of confide nce.” Id

. (quoting Kyles v. W hitley , 514 U.S. 419, 434 (1995))

. Although the standard “is
not a sufficie ncy of the evidenc e test,” the defe ndant must “show[] that the favor able evidenc e could

rea sonably be taken to put the whole case in such a differ ent light as to undermine confide nce in the verdic t.” Id

. (quoting Kyles , 514 U.S. at 434-35). “The mere possibili ty that an item of undisclosed information might have h el ped the defe nse, or might have aff ecte d the outcome of the trial, does

8not establish ‘mater iality ’ in the constitutional sense.” Hampton , 86 S.W .3d at 612 (quoting Agurs ,

427 U.S. at 109). “Usua lly , a deter mination conce rning the materia l i ty prong of Brady involves balanc ing the streng th of t he [ favorab l e] evidence aga inst the evidence supporting [ the verdict].” Id . at 613. We must accor dingly consider “ the entire body of evide nce” prese nted at trial. Id

. This w as a ca se in which multiple ey ewitnesses obse rved the offe nses and testified

as to what they saw. Both of the alleg ed victims also testified, as did the defe ndant. Thus, there was considera ble testimony in this case that supported the verdic t, in addition to the video rec ording that

was admitted. The distri ct co urt could have rea sonably conclude d that additional video evidenc e of the i ncident might have shown, at most, Evans “provoking ” Hills in the manner that Hills had claimed. The rec ord would support an implied finding that there was not a rea sonable proba bility that such evidenc e would have chan ged t h e outcome of the proce eding

. No claim was made that Hills’s spitting was an act of self-de fense as that term is de fined in the penal code. See Tex. Pena l Code Ann. § 9.31 (West 2011). There fore , the district court could have rea sonably found that Evans’s alleg ed conduct, even if true, would not have justified Hills’s spitti ng in the fac es of Evans and Cruz-Nazario. We over rule Hills’s first issue.

Sub poena du ces t ecum

I n his second issue, Hills asser ts that the trial court “fur there d” t h e all eg ed Brady violation by quashing what he char acte rizes as a subpoena duces tecum. I n this issue, it appea rs that Hills is essentially arg

uing that the district court preve nted him from establishing a Brady violation by excluding cer

tain testimony and rec ords that, in Hills’s view, would have demonstrated that the State had withheld exculpatory evidenc e. 9There is no merit to Hi l l s ’s cl ai m. The document that Hills char acte rizes as a

subpoena duces tecum was, for the most part, merel y a list of witnesses that Hills had wanted to

ca l l in his defe nse. These witnesses wer e Major Robert Patterson, L ieutenant Charles Grogan , 7 District Clerk Sheila Norman, and an unspecifie d “desig nee” of the Texas Boa rd of Pardons and Paroles (the Bo ar d ). T h ree of the four witnesses listed in the document—Patterson, Grog an, and Norman—w ere subpoenae d by the district court per Hills’s reque st and appea red in court to testify

. Norman was called to the stand but did not testify

. Patterson and Grog an, o n the other hand, 8 testified extensively reg arding the matters into which Hill s inquired, althoug h the district court sustained sever al rele vance objections by the State to cer tain questions posed by Hills. To the extent that Hills is arg uing that the district court abused its discretion in sustaining the State’s rele vance objections, we disag ree . The e x cluded testimony rela ted to jail policies and grie vance proce dures that, the district court could have rea sonably conclude d, had nothing to do with the issue of whether Hills had committed the offe nses of which he was char g ed. The district court would not have abused its discretion in finding that such testimony was not relev an t t o t h e case . See Tex. R. Evid. 401; State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006) (“[A] trial court’s ruling admitting

or excluding evide n ce is revie wed on appea l for abuse of discretion.”) ; Montgomery v. State ,

A subpoena duces tecum, in contra st to an ordinary subpoena, is issued when a witness has 7 “in his posse ssion a

ny instrument of writing or other thing desired as evidenc e.” Tex. Code Crim. Proc. Ann. art. 24.02 (West 2 0 0 9 ). T he subpoena duces tecum “may specify such evidenc e and direct that the witness bring the same with him and produce it in court.” Id

. Wit h one exception noted below, Hills’s docume nt did not refer to any such evide nce. The first question that Hills asked Norman rela ted to complaints that Hills had filed ag ainst 8 the jail. After the district court susta i n ed a relevance objection by the State, Hills had no other questions for the witness a nd she wa s excused. 10810 S.W .2d 372, 391 (Tex. Crim. App. 1991) (no abuse of discretion occur s so long as evidentiar y ruling s are “within the zone of re asonable disag ree ment”).

The fourth witness that Hills had wanted t o appea r was an unspecifie d desig nee of the Boa rd of Pardons and Paroles. Unlike the other subpoenae d witnesses, Hills reque sted that this witness provide documentar y evidenc e, specific ally rec ords rel at i n g to the “ac tual date and time” when Hills was alleg edly g rante d “parole i n absentia.” The Boar d filed a motion to quash, which the district court g rante d. During the hear ing on the motion to quash, the Boa rd stated that it was not the custodian of rec ords of the documents that Hills soug ht and thus could not provide copies of the

rec ords as reque sted. The district court would not have abused its discretion in g ranting the motion to quash on that g round. Additionally , “[a] subpoena duces tecum is not to be used as a discove ry

we apon, but as an aid to discovery based upon a showing of materia lity and rele vance . ” R ee ce

v. State , 8 78 S.W .2d 320, 326 (Tex. App.—Houston [1st Dist.] 1994, no pet.). The district court would n o t have abused its discretion in concluding that documents rela ting to whether and wh en Hi l l s was g rante d “par ole in absentia” wer e not materia l to this case . We overr ule Hills’s second issue.

Ineff ect ive assistance of stand by couns el I n his third issue, Hills asser ts that standby counsel provided ineffe ctive assist ance by “par taking ” in the alleg ed Brady violation. I n this issue, Hills appea rs to arg ue t h at s t an dby counsel failed to deliver the video rec ording to him in a timely manner and that, as a result, Hills was unable to ef

fec tively use the re cording in his defense

.

11I t is well settled that there is no constitutional ri gh t t o hy brid repr esenta tion. See Dunn v. State , 819 S.W .2d 510, 525-26 (Tex. Crim. App. 1991); Scarbrough v. State , 777 S.W .2d 83, 92 (Tex. Crim. App. 1989); Landers v. State , 550 S.W .2d 272, 280 (Tex. Cr i m . Ap p . 1977). Acc ording ly , fede ral courts have repe atedly held that there is no corr esponding constitutional rig ht
to the eff ective assistance of standby counsel. See, e.g. , United States v. Oliver , 630 F.3d 397, 413- 14 (5th Cir. 2011); Un i ted States v. Morrison , 153 F.3d 34, 55 (2nd Cir. 1998); United States

v. W indsor , 981 F.2d 943, 947 (7th Cir. 1992). Thus, absent circ umstances that are not implicated 9 here , Hills cannot obtain relief on such a c laim. Moreove r, even assuming that Hills had a constitutional ri gh t t o the eff ective assistance of st andby counsel, we could not conclude on this recor d that Hills has established that standby counsel was ineffe ctive. To be entitled to relief , Hills must prove by a preponde ranc e of the evidenc e that (1) counsel’s perf ormanc e fell below an objective standard of rea sonablene ss, and (2) there is a reasonable probability that, but for counsel’s deficient performanc e, the result of the proce eding would have been differ ent. See Strickland v. W ashington , 466 U.S. 668, 687-88 (1984). Thus, the “benc hmark for judging any claim of ineffe ctiveness must be whether counsel’s conduct

so undermined the proper functioning of the adver sarial proce ss that the trial cannot be relied on as having produce d a just result.” Id . at 686.

The rec ord ref

lects the following

. At a pretria l hear ing approximately three months prior to trial, the State provided the video re cording of the incide nt to Hills ’s standby counsel. At

I n fac t, Hills was the appellant in one such case . See United States v. Hills , 425 Fe d. Appx. 9 292, 296-97 (5th Cir. 2011) (pe r cur iam). 12that time, standby counsel informed the distr i ct court that he had the ability to play the rec ording

on his laptop computer and tha t he would “make an appointment with Mr. Hills in the next day or two” so that Hills could revie w the rec ording

. Approxim ately two months later, at another pretria l hear ing, Hills reque sted a continuance , informing the district court that he had not y et had an opportunity to revie w the rec ording

. I n response , standby counsel explained that he had experience d difficulty in play ing the rec ording on his computer b u t t h at h e wa s in the process of resolving the issue. The district cour

t directe d standby

counsel to show the r ecor ding to Hills within ten day s. On the day of trial , Hi l l s ag ain complained that he had not had an opportunity to revie w the rec ording

. Howeve r, standby counsel informed the district court that he had visited the jail thr ee times but that Hills had ref used to see him e ach time. Hills c laimed that standby counsel had not visited him until “the last minute,” b u t t h e district court reminded Hills that he was repr esenting himself and that it was “up to [Hil ls] whether or not [he] communicated with [st andby counsel].” After standby counsel ag ain explained that he had attempted to visit with Hills on three

occa sions, including the n i gh t b ef ore trial, but that Hills had ref used to see him, the district court t o o k a rec ess and allowed Hills to revie w the rec ording in court. After Hills had revie wed th e

rec ording , the trial beg an.

We could not conclude on the above rec ord that standby counsel’s perf ormanc e fell below an objective standard of rea sonablene ss. Counsel s t ated that he had visited Hills at t he jail

on three occa sions but that Hills had ref used to see him e ach time. As the district c ourt explained, beca use Hills was repr esenting himself, it was his responsibility to co mmunicate with standby

13counse l i n o rder to arr ang e a time to revie w the rec ording

. That Hills chose not to communicate

with standby

counsel doe s not establish that standby counsel’s pe rfor

mance was de ficient. Moreove r, eve n if standby counsel’s pe rfor mance had bee n defic ient, we c ould not conclude on this rec ord that there is a rea sonable probability that but for counsel’s perf ormanc e, the result of the proce eding would have been differ ent. As we have alre ady explained, this was a case that turned not on the video evidenc e but on the testimony of the ey ewitnesses who had observe d and

wer e involved in the incident. And, as Hills acknow ledg es, the rec ording does not show the entirety of the incident. Thus, we could not conclude that if Hills had viewed the rec ording ear lier, it would have affected his defe nse to such a deg ree as to undermine our confide nce in the outcome of the proce eding . We overrule Hills’s third issue.

CONCLUSION We affir m the judgme nts of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: Jul y

20, 2012 Do Not Publish

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