No. 07-14-00340-CR 

______________________________

IN THE COURT OF APPEALS

SEVENTH DISTRICT OF TEXAS, AMARILLO, TEXAS

______________________________

ALLYNE SHANE DOYLE, 

Appellant, 

v. 

 

THE STATE OF TEXAS, 

Appellee. 

______________________________

On Appeal from the 69th Judicial District Court

Of Dallam County Texas

______________________________

STATE’S BRIEF 

______________________________

NANCY NEMER *JOSEPH P. CORCORAN

District Attorney, Pro Tem Assistant District Attorney, Pro Tem

Assistant Attorney General Assistant Attorney General

Supervising Attorney

for Non-Capital Appeals

Criminal Appeals Division

*Lead Appellate Counsel State Bar No. 00793549

Joseph.Corcoran@TexasAttorneyGeneral.gov 

P. O. Box 12548, Capitol Station

Austin, Texas 78711

Telephone: (512) 936-1400

Facsimile: (512) 936-1280

_____________________________

ATTORNEYS FOR THE STATE

ACCEPTED

07-14-00340-CR

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

2/26/2015 10:27:22 AM

Vivian Long, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 2/26/2015 10:27:22 AM VIVIAN LONG CLERK
IDENTITY OF PARTIES AND COUNSEL 

Appellant 

Allyne Shane Doyle 

Represented by

TIMOTHY D. SALLEY

(At both trial and on appeal)

Salley & Lands

102-B E 7th Street

Dumas, TX 79029

(806) 934-3185

tsalley53@gmail.com

Appellee 

The State of Texas

Represented by

JOSEPH P. CORCORAN (on appeal)

NANCY NEMER

District Attorneys Pro Tem

Dallam County, Texas

Assistant Attorneys General

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 – MC067

Austin, Texas 78711-2548

512-936-1400

Joseph.Corcoran@texasattorneygeneral.gov

Nancy.Nemer@texasattorneygeneral.gov

ii
TABLE OF CONTENTS 

 Page 

 

IDENTITY OF PARTIES AND COUNSEL .............................................ii

TABLE OF CONTENTS .........................................................................iii 

 

INDEX OF AUTHORITIES ..................................................................... v

STATEMENT OF THE CASE .................................................................1

STATEMENT REGARDING ORAL ARGUMENT .................................4

STATEMENT OF FACTS ........................................................................4

SUMMARY OF THE ARGUMENTS .....................................................10

ARGUMENTS AND AUTHORITIES ....................................................12

I. Standard of Review .......................................................................12

II. Resolution of Appellant’s Point of Error Is Impossible Because It Is 

Premised Upon Extra Record “Facts” Not Properly before the Court, 

and Which Could Not Have Been Considered by the Trial Court 

When Appellant’s Original Motion Was Overruled by Operation of 

Law .................................................................................................13

 A. The 30-day time limit to file a motion for new trial.............13

B. Appellant’s “supplemental” motion for new trial was in 

reality an untimely amendment...........................................14

C. The trial court could not have considered the Amended 

Motion over the State’s objection; hence, Appellant 

failed to preserve his single point of error for review ..........15

iii
 

III. Even Assuming, Arguendo, that the Amended Motion was Properly 

Before the Trial Court, Appellant Fails to Establish that the Trial 

Court Abused its Discretion When it Denied the 

Amended Motion. ..........................................................................16

A. The trial court has no duty to inform a defendant that 

he has a constitutional right to testify, or to ensure that 

a defendant’s waiver of that right is knowing or 

voluntary, under Texas law this obligation is on defense 

counsel...................................................................................16

 

B. Appellant has failed to meet his burden of establishing 

that the trial court’s decision to deny his motion for new 

trial was an arbitrary or unreasonable application of 

Strickland..............................................................................19

 

C. Appellant fails to meet his burden under either prong of 

Strickland..............................................................................22 

 

PRAYER FOR RELIEF ..........................................................................24

CERTIFICATE OF SERVICE ................................................................25

 

CERTIFICATE OF COMPLIANCE .......................................................26 

iv
INDEX OF AUTHORITIES 

Cases

Adams v. State, 514 S.W.2d 262 (Tex. Crim. App. 1974).......................16

Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004)......................21

Dugard v. State, 688 S.W.2d 524 (Tex. Crim. App. 1985)......................14

Emery v. Johnson, 139 F.3d 191 (5th Cir. 1997)....................................17

Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001) .........................21

Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1993)......................16

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) ..................19

Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) ................20

Holden v. State, 201 S.W.3d 761 (Tex. Crim. App. 2006) ................12, 23

Johnson v. State, 120 S.W.3d 10 (Tex. App.—Amarillo 2003)...............17

Johnson v. State, 169 S.W.3d 223 (Tex. Crim. App. 2005)...............17, 18

Klapesky v. State, 256 S.W.3d 442 (Tex. App.–Austin 2008) ................14

Lewis v. State, 911 S.W.2d 1 (Tex. Crim. App. 1995).............................12

Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001) ..........................20

Marras v. State, 741 S.W.2d 395 (Tex. Crim. App. 1987) ......................16

Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002)........... 19, 20, 21

v
My Thi Tieu v. State, 299 S.W.3d 216 (Tex. App.—Houston [14th Dist.] 

2009) .....................................................................................................22

Rock v. Arkansas, 483 U.S. 44 (1987).....................................................17

Rodriguez v. State, 292 S.W.3d 187 (Tex. App.–Amarillo 2009) 19, 20, 21

Shanklin v. State, 190 S.W.3d 154 (Tex. App.—Houston [1st Dist.] 2005)

..............................................................................................................22

State v. Gill, 967 S.W.2d 540 (Tex. App.—Austin 1998)........................22

State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007)....................22

State v. Zalman, 400 S.W.3d 590 (Tex. Crim. App. 2013)................14, 15

Strickland v. Washington..................................................................12, 20

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) .....................21

Williams v. State, 780 S.W.2d 802 (Tex. Crim. App. 1989)....................14

Statutes

Tex. Code Crim. Proc. art 42.013..............................................................2

Tex. Penal Code § 12.32 ............................................................................1

Tex. Penal Code § 12.42(b)........................................................................1

Rules

Tex. R. App. P. 21.2 .................................................................................16

vi
Tex. R. App. P. 21.4(a).............................................................................13

Tex. R. App. P. 21.4(b).............................................................................13

Tex. R. App. P. 21.8(c)...............................................................................3

Tex. R. App. P. 26.2(a)(2) ..........................................................................3

vii
STATEMENT OF THE CASE 

The Grand Jury of the 69th Judicial District Court of Dallam 

County Texas, indicted Appellant, Allyne Shane Doyle, with the seconddegree felony offense of aggravated assault with a deadly weapon. CR 5.1

The indictment included a single, final-felony enhancement allegation, 

which if proven, increased the potential punishment range to that of a 

first-degree felony (i.e., to a term of not less than five years, and not more 

than ninety-nine years, or life). CR 5; see Tex. Penal Code § 12.42(b)

(West 2013); see also Tex. Penal Code § 12.32 (West 2013) (defining the 

punishment range for a first-degree felony offense). Appellant pleaded

not guilty and proceeded to a bench trial. CR 35–36; 2 RR 5. The trial 

court found Appellant guilty of the offense as alleged in the indictment. 

CR 35–36; 3 RR 121. On the same day—July 8, 2014—after conducting a 

hearing on punishment, and after finding the enhancement paragraph to 

1 “CR” refers to the Clerk’s Record—the transcript of pleadings and documents 

filed with the clerk during trial and is followed by page number. “RR” refers to the 

Reporter’s Record of the transcribed trial proceedings, and is preceded by volume 

number and followed by page number. 

1

 
be true, the trial court sentenced Appellant to twenty-five years’ 

imprisonment.2 3 RR 187–88; CR 35. Although he was present when his 

sentence was pronounced in open court, Appellant did not testify at the 

punishment proceeding. 3 RR 133–86. As relevant to this appeal, 

immediately prior to the start of the punishment portion of the trial, 

Appellant voluntarily waived his right to be present during the 

questioning of witnesses, and left the courtroom. 3 RR 126–29.

On July 15, 2014—seven days after his sentence was imposed in 

open court—Appellant filed a motion for new trial, alleging only that “the 

verdict in this cause is contrary to the law and the evidence.” CR 38 (the 

State will refer to Appellant’s July 15, 2014 motion for new trial as the 

“Original Motion”). Appellant’s Original Motion did not advance an 

allegation that he wished to testify at the punishment hearing, or a claim 

that his constitutional right to testify was violated. See id. Next, on 

August 19, 2014—42 days after his sentence was imposed in open court—

2 The trial court also entered two additional findings: first that the offense for 

which Appellant had been convicted involved family violence under Tex. Code Crim. 

Proc. art 42.013; and second, that Appellant used a deadly weapon in commission of 

the offense. CR 5.

2

 
Appellant filed a “supplement” to his Original Motion in which he 

attached two affidavits, each suggesting two additional claims. CR 40–43

(the State will refer to this August 19, 2014 pleading as the “Amended 

Motion”). The first affidavit seemed to suggest that the State mistreated 

the complaining witness at trial. CR 42. The second affidavit was from 

Appellant himself, in which he stated that he had desired to testify 

during the punishment hearing, but that due to some kind of 

misunderstanding with trial counsel, he did not. CR 43.3

The State timely objected to the trial court’s consideration of the 

Amended Motion, contending that it constituted an untimely amendment

of the Original Motion. CR 47–48. No hearings occurred on either motion 

for new trial, and the lack of a written ruling in the record suggests that 

they were overruled by operation of law. See Tex. R. App. P. 21.8(c). 

Appellant filed his notice of appeal on September 9, 2014. CR 44; 

see Tex. R. App. P. 26.2(a)(2). The State understands Appellant to raise 

a single point of error: That the trial court erred in denying his Amended 

3 The second affidavit appears to be the basis for the single point of error 

pending before the Court.

3

 
Motion, in which he first sought a new punishment hearing, because 

Appellant was unable to testify at that punishment hearing as a result of 

a misunderstanding between he and trial counsel. See Appellant’s Br. at 

8–11.

STATEMENT REGARDING ORAL ARGUMENT 

Pursuant to Texas Rule of Appellate Procedure 39.1, the State does 

not believe that oral argument is necessary because the dispositive issue 

or issues have been authoritatively decided; the facts and legal 

arguments are adequately presented in the briefs and record; and the 

decisional process would not be significantly aided thereby.

STATEMENT OF FACTS 

Larry Wilkerson testified that on August 1, 2013, he was walking

back from a local bank, along Fourth Street, when he heard two men 

arguing. 3 RR 10–11, 13. As he approached, he saw the two men standing 

in the open, continuing to argue. 3 RR 15–16. Eventually, Wilkerson saw 

one of the men jump into a pickup truck and forcefully drive the truck in 

reverse toward the other man, violently striking him. 3 RR 16. The driver 

was moving in reverse with sufficient force to cause the tires to “spin.” 3 

4
RR 16, 19. The man who was struck by the pickup was later identified as 

Quincy Allyn Doyle, Appellant’s father. 3 RR 41. The truck’s tailgate was 

down, and Quincy was struck with sufficient force that he “fell” onto the

back of the truck. 3 RR 16, 19–20. The driver continued moving 

backwards, eventually striking the back of the truck—and Quincy—into 

a pile of “junk.” 3 RR 16. If the driver had driven Quincy into anything 

other than a “junk pile,” it would have “[s]quashed him dead.” 3 RR 16.

The driver then proceeded to move the truck forward with Quincy still 

hanging on, “spinning the gravel and everything, and . . . [Quincy] finally 

fell off the truck about the middle of the street.”4 3 RR 16. Wilkerson then 

approached Quincy concerned that he was injured and might not be alive. 

3 RR 16. Wilkerson then waited for police to arrive, and gave them his

statement. 3 RR 16.

Quincy Allyn Doyle testified that Appellant is his son. 3 RR 32. 

Quincy has had a “rocky relationship” with Appellant for five to ten years. 

3 RR 33–35. Appellant has a “really bad temper.” 3 RR 38. Appellant 

tends to get angry when he “doesn’t get his way.” 3 RR 40. On August 1, 

4 The driver left the scene. 3 RR 79.

5

 
2013, Quincy had a “very loud argument” with Appellant over Appellant’s 

attempt to take a tow bar from Quincy without a deposit, and also over 

Appellant’s failure to pay money owed to Quincy. 3 RR 37–38. Appellant 

became extremely angry, got into his pickup truck, and “took off in his 

truck coming at me, you know, backwards and rammed me up in a pile 

of junk.” 3 RR 40. In order to avoid being crushed between the truck and 

pile of junk, Quincy had to jump into the bed of the truck. 3 RR 40. 

Appellant then “took off” and Quincy eventually rolled off the truck and 

out into the street. 3 RR 40. In the street, Quincy encountered Wilkerson. 

3 RR 41. Quincy acknowledged that he told police that Appellant had 

tried to kill him, and that in retrospect “you could say that.” 3 RR 42. 

Quincy also testified that Appellant sent him several letters from jail, in 

which he repeatedly asked Quincy to file an affidavit of non-prosecution, 

in an effort to get the charged offense dismissed. 3 RR 54–63. Quincy also 

testified that in one of the letters, Appellant suggested that Quincy 

contact Wilkerson in an effort to obtain an affidavit of non-prosecution 

from Wilkerson. 3 RR 61–62.

6
Officer Rodrigo Jackson testified that he is a police officer for City 

of Dalhart Police Department. 3 RR 74. He testified that he was on duty 

on August 1, 2013, when he received a call to go to 320 Scott Street. 3 RR 

74. Upon arrival Officer Jackson observed Quincy sitting on the ground, 

3 RR 76, and asked Quincy what had happened, to which Quincy replied 

“Shane just tried to kill me.” 3 RR 75; accord 3 RR 104 (“[Quincy] told me, 

my son, Shane, just tried to run me over.”). Officer Jackson observed tire 

tracks that appeared to confirm that someone tried to hit Quincy with a 

vehicle. 3 RR 79. Officer Jackson testified that backing a truck up into a 

person could be a deadly weapon. 3 RR 101. Officer Jackson confirmed 

that Wilkerson was a witness to the “entire incident,” and that Wilkerson 

provided a witness statement to that effect. 3 RR 105. Officer Jackson 

also testified that Appellant’s reputation in the community was “not 

good.” 3 RR 84.

Michelle Griffin testified that she was the chief dispatcher for the 

Dalhart County Jail. 3 RR 111. She testified regarding a letter that 

Appellant sent to Quincy from the jail. 3 RR 111–16; State Ex. 5. In the 

letter, Appellant attempted to have Quincy execute and file a non7
prosecution affidavit. 3 RR 114. Appellant also asked Quincy to contact 

Wilkerson and ask “him if he would tell that chick in Austin – and chick 

is spelled c-h-i-c just so you know – in Austin he wants no part in the 

situation, then she has no pull at all anyway look – any way you look at 

it.”5 3 RR 115. 

After he was found guilty, and during sentencing, Angela Reynolds 

testified that she had previously dated Appellant from May or June of 

2008, until October of 2011. 3 RR 133–34. Reynolds testified that during 

the five-year period she dated Appellant, he was “very” violent, and that 

he repeatedly made her fear for her life. 3 RR 135. Reynolds testified that 

she was convicted of a drug offense that Appellant had actually 

committed, for the benefit of Appellant. 3 RR 136. She testified that 

Appellant repeatedly violated protective orders against him, and 

threatened to kill Reynolds and her family. 3 RR 140. Despite such 

violations, Appellant was not prosecuted. 3 RR 142. On one occasion, 

Reynolds attempted to leave Appellant, but he followed her with his 

5 This reference appears to be to Nancy Nemer, the assistant attorney general 

who prosecuted Appellant. See 3 RR 115.

8

 
truck, grabbed her by her hair and put in the passenger seat. 3 RR 143. 

After Reynolds exited the truck, Appellant repeatedly tried to ram her 

with the truck, forcing her to get behind trees to prevent him from hitting 

her. 3 RR 144. This was not the first time that Appellant grabbed 

Reynolds by her hair and forced her into his truck, against her will. 3 RR 

146–47. Reynolds testified that over a five-year period, Appellant beat, 

choked, hit, slapped, kicked, threw down, and pulled her hair “a hundred 

times.” 3 RR 148. And that she thought she was going to die “quite a few” 

times. 3 RR 148.

Brandy Blanco testified during sentencing that she had previously 

dated Appellant “on and off the last two . . . years.” 3 RR 157. Blanco 

testified that during the two-year period she dated Appellant, he was 

violent, and he continually beat her up. 3 RR 157. Blanco testified that 

Appellant’s threats caused her to be concerned for the safety of her entire 

family, and particularly her daughter. 3 RR 157–58. Blanco testified that 

she once tried to leave Appellant, and that after he found her, he forced 

her into his truck by threatening to kill her grandmother and daughter. 

3 RR 159. At one point Appellant burned Blanco with a “torch,” telling 

9
her that “love hurts.” 3 RR 160. Blanco testified that she believed 

Appellant injected her with narcotics without her consent. 3 RR 161–62. 

Indeed, Blanco testified that Appellant repeatedly punished her for 

calling the police. 3 RR 163. Although she repeatedly tried to leave 

Appellant, Blanco would return because he would threatened to hurt her 

daughter. 3 RR 164. Moreover, when Blanco stood up to Appellant’s 

violent abuse, he often instituted the “three-second rule” in which he 

would choke her to unconsciousness in three seconds. 3 RR 166. On one 

occasion Appellant became particularly violent and forced Blanco’s face 

and head into hot water, burning her. 3 RR 172–73. Appellant did this in 

front of Blanco’s daughter, who yelled at Appellant to stop. 3 RR 173. 

Blanco’s daughter then called Blanco’s grandmother on a cellphone who 

came over to pick them up and Appellant threatened to kill them. 3 RR 

173–74. Despite the presence of Blanco’s grandmother—and her threat 

to call police—Appellant refused to let Blanco leave. 3 RR 174. Blanco 

also testified that Appellant contacted her from jail (after his arrest for 

the present offense), and asked her to lie. 3 RR 174–75.

SUMMARY OF THE ARGUMENTS

10
The Court should overrule Appellant’s single point of error. First, 

the Amended Motion for new trial in which Appellant first suggested his 

desire to testify, and in which he first requested a new punishment 

hearing, constituted an untimely amendment to the Original Motion. 

This is because the Amended Motion was filed more than 30 days after 

the trial court imposed Appellant’s sentence in open court. The State 

objected on this basis in the trial court, which meant the Amended 

Motion was not properly before the trial court. Since the trial court could 

not have abused its discretion in denying Appellant’s motion for new trial 

on that basis, the single point of error presents nothing for this Court to 

review.

Second, even assuming that the Amended Motion was properly 

before the trial court—and hence, that the trial court made a 

discretionary decision thereto, reviewable by this Court—Appellant’s 

point of error is without merit. Under Texas law there is no free-standing 

obligation on the part of the trial court to either inform a defendant of his

right to testify, or to ensure that the right is properly waived. Rather, the 

Texas courts place the duty to so inform on trial counsel, and analyze the 

11
question of whether a defendant was denied his right to testify under the 

auspices of Strickland v. Washington.6 And because the record does not 

contain any information upon which to reverse the trial court with 

reference to Strickland, Appellant fails his burden and the Court should 

overrule his point of error. 

ARGUMENTS AND AUTHORITIES 

I. Standard of Review 

This Court reviews a trial court’s denial of a motion for new trial 

under an abuse of discretion standard. Lewis v. State, 911 S.W.2d 1, 7 

(Tex. Crim. App. 1995). “We do not substitute our judgment for that of 

the trial court; rather, we decide whether the trial court’s decision was 

arbitrary or unreasonable.” Holden v. State, 201 S.W.3d 761, 763 (Tex.

Crim. App. 2006). A trial court abuses its discretion denying a motion for 

new trial only when no reasonable view of the record would support the 

trial court’s ruling. Id.

6 466 U.S. 668 (1984).

12

 
II. Resolution of Appellant’s Point of Error Is Impossible Because It Is 

Premised Upon Extra Record “Facts” Not Properly before the Court, 

and Which Could Not Have Been Considered by the Trial Court 

When Appellant’s Original Motion Was Overruled by Operation of 

Law.

A. The 30-day time limit to file a motion for new trial 

To be timely, a motion for new trial must be filed within 30 days of 

“the date when the trial court imposes or suspends sentence in open 

court.” Tex. R. App. P. 21.4(a). The same 30 day rule applies to 

amendments: 

To Amend. Within 30 days after the date when the trial court 

imposes or suspends sentence in open court but before the 

court overrules any preceding motion for new trial, a 

defendant may, without leave of court, file one or more 

amended motions for new trial.

Tex. R. App. P. 21.4(b). Here, Appellant’s request for a new punishment 

hearing—which included the affidavit suggesting his desire to testify—

was advanced as part of the Amended Motion, filed more than 30 days 

after sentencing. Hence, to the extent that the Amended Motion 

constituted an “amendment” under Rule 21.4(b), it was untimely.

13
B. Appellant’s “supplemental” motion for new trial was in reality 

an untimely amendment.

The law in Texas is plain: Filing affidavits in support of a motion 

for new trial more than 30 days after sentencing, is considered an 

untimely attempt to amend the initial motion for new trial. Dugard v. 

State, 688 S.W.2d 524, 529–30 (Tex. Crim. App. 1985), overruled on other 

grounds by Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App.

1989); see also Klapesky v. State, 256 S.W.3d 442, 455 (Tex. App.–Austin

2008, pet. ref’d). Since the Amended Motion—which was filed some 42 

days after sentencing—contained the new legal claim described in the 

affidavit (regarding Appellant’s purported desire to testify at sentencing), 

it constituted an untimely amendment to the Original Motion. See

Dugard, 688 S.W.2d at 529–30; Klapesky, 256 S.W.3d at 455.

And to the extent that Appellant might argue that the Amended 

Motion was merely a more detailed argument in support of the Original 

Motion, his argument again fails. See State v. Zalman, 400 S.W.3d 590, 

594–95 (Tex. Crim. App. 2013) (noting that counsel cannot supplement a 

form motion for new trial that advances a generic claim, with an untimely 

and more detailed amendment that advances a specific claim). Here, 

14
there was nothing in the Original Motion that even hinted at Appellant’s 

purported desire to testify; and hence, Appellant’s Amended Motion, 

upon which this appeal is premised, was untimely.

C. The trial court could not have considered the Amended 

Motion over the State’s objection; hence, Appellant failed to 

preserve his single point of error for review.

“[I]t is error for the trial court to rule on an untimely amendment 

[to a motion for new trial] over a proper objection.” Zalman, 400 S.W.3d 

at 595. Here, the State objected to the Amended Motion as being 

untimely. CR 47–48. As a result, the trial court was not permitted to 

“rule” on the untimely amendment contained within the Amended 

Motion. Zalman, 400 S.W.3d at 595. And since the order denying 

Appellant’s motions for new trial (by operation law) could not have 

extended to discretionary consideration of the Amended Motion, the point 

of error presents nothing for this Court to review.

The same holds for the factual assertions in the affidavit itself:

A motion for new trial is a prerequisite to presenting a 

point of error on appeal only when necessary to adduce facts 

not in the record.

15
Tex. R. App. P. 21.2 (emphasis added). Because review of Appellant’s 

point of error would require reference to a factual assertion existing 

outside of the record of the trial proper, Appellant’s failure to advance the 

affidavit as part of a timely motion for new trial means that his evidence 

of error is not before the Court, and any error is “waived.” See Adams v. 

State, 514 S.W.2d 262, 264 (Tex. Crim. App. 1974); see also Marras v. 

State, 741 S.W.2d 395, 407 (Tex. Crim. App. 1987), overruled on other 

grounds by Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1993) (“The 

appellant failed to make this complaint at trial or in his motion for new 

trial. The appellant has failed, therefore, to show this Court any violation 

of Article 36.27 and has failed to overcome the presumption of regularity 

in the proceedings.”). Appellant’s point of error should be overruled.

III. Even Assuming, Arguendo, that the Amended Motion was Properly 

Before the Trial Court, Appellant Fails to Establish that the Trial 

Court Abused its Discretion When it Denied the Amended Motion.

 

A. The trial court has no duty to inform a defendant that he has 

a constitutional right to testify, or to ensure that a defendant’s 

waiver of that right is knowing or voluntary, under Texas law 

this obligation is on defense counsel. 

 

In the interests of justice, the State alternatively addresses 

Appellant’s unpreserved point of error on its merits. A criminal 

16
defendant undoubtedly has a constitutional right to testify in his own 

defense. See Rock v. Arkansas, 483 U.S. 44, 49–52 (1987). This right 

arises from the Fifth and Sixth Amendments of the Constitution, is 

personal to the defendant, and cannot be waived by counsel. Id. at 46–47. 

To be effective, any waiver of the right to testify must be made knowingly 

and voluntarily. Johnson v. State, 120 S.W.3d 10, 15 (Tex. App.—

Amarillo 2003), aff’d 169 S.W.3d 223 (Tex. Crim. App. 2005) (citing 

Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997)).

While the right to testify occupies an important place in our 

constitutional framework, the Court of Criminal Appeals (the “CCA”) has 

determined that a trial court has no duty to actually inform a defendant

about that right to testify. Johnson v. State, 169 S.W.3d 223, 235 (Tex. 

Crim. App. 2005) (“If the trial court is not required to admonish a 

represented defendant about the right not to testify—arguably the “more 

fragile right”—then the trial court surely has no duty to do so with regard 

to the converse right to testify”) (emphasis in original).

Rather “defense counsel shoulders the primary responsibility to 

inform the defendant of his right to testify, including the fact that the 

17
ultimate decision belongs to the defendant.” Id. Moreover, in Johnson the 

CCA rejected the minority approach which would have required a trial 

court to affirmatively ensure that a defendant who does not testify has 

knowingly waived that right. See id. at 234–35 (rejecting the minority 

view “imposing on the trial court a duty to ensure a knowing waiver of 

the right to testify.”).

And because “imparting that information is defense counsel’s 

responsibility,” the courts are directed to apply the legal framework 

described in Strickland v. Washington to measure whether a defendant’s 

right to testify was effectively “denied by defense counsel.” Johnson, 169 

S.W.3d at 235. In other words, the CCA has grafted Strickland’s two-part 

legal measure to resolve all claims that a defendant was denied his 

constitutional right to testify. Id. 

To this end, the State next analyzes the requirements of Strickland

to determine if Appellant has met his burden of establishing that the trial 

court’s decision not to act and to deny his Amended Motion new trial was 

arbitrary or unreasonable.

18
B. Appellant has failed to meet his burden of establishing that 

the trial court’s decision to deny his motion for new trial was 

an arbitrary or unreasonable application of Strickland.

“Strickland v. Washington is the seminal case setting forth the 

standard for ineffective assistance of counsel claims under the United 

States Constitution.” Rodriguez v. State, 292 S.W.3d 187, 188 (Tex. App.–

Amarillo 2009, no writ). Strickland established a two-pronged legal 

measure—reversal requires Appellant to demonstrate: (1) that counsel’s

representation fell below an objective standard of reasonableness, and (2) 

the deficient performance prejudiced Appellant. Id. at 188–89 (citing

Hernandez v. State, 726 S.W.2d 53, 54–55 (Tex. Crim. App. 1986)).

The first prong of the Strickland test requires an appellant prove 

that counsel made such serious errors that he did not function as the 

“counsel” guaranteed by the Sixth Amendment. Id. at 189. The second 

Strickland prong requires an appellant “show a reasonable probability 

that, but for his counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Id. (citing Mitchell v. State, 68 

S.W.3d 640, 642 (Tex. Crim. App. 2002)). “Reasonable probability” means 

probability of a degree sufficient to undermine confidence in the outcome. 

19
Id. The Strickland test for prejudice applies even in cases like this one, 

in which the purported deficiency relates only to a non-capital sentencing

outcome, and not to the question of a defendant’s guilt. See Hernandez v. 

State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (“Assuming Strickland

left open the question of whether a defendant is required to show 

prejudice from deficient attorney performance at noncapital sentencing 

proceedings, we perceive no valid reason why Strickland cannot apply, or 

why a different rule should apply, to noncapital sentencing 

proceedings.”).

An appellant bears the burden of proving ineffective assistance of 

counsel by a preponderance of the evidence. Rodriguez, 292 S.W.3d at 189

(citing Mitchell, 68 S.W.3d at 642). The Court’s review of counsel’s 

performance is highly deferential, and a strong presumption exists that 

counsel’s conduct fell within a wide range of reasonable professional 

assistance. Id. (citing Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.

2001)); see Strickland, 466 U.S. at 689 (noting there are countless ways 

to provide effective assistance in any given case). 

20
To overcome the presumption of reasonable professional assistance, 

any allegation of ineffectiveness must be firmly rooted in the record. 

Rodriguez, 292 S.W.3d at 189 (citing Thompson v. State, 9 S.W.3d 808,

813–14 (Tex. Crim. App. 1999)). In the majority of cases, the record on 

direct appeal is inadequate to show that counsel’s conduct fell below an 

objectively reasonable standard of performance; thus, the better course 

is to pursue the claim in habeas proceedings. Mitchell, 68 S.W.3d at 642. 

Absent evidence of counsel’s reasons for the challenged conduct, the 

Court is not permitted to conclude the challenged conduct constituted 

deficient performance unless the conduct was so outrageous that no 

competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 

436, 440 (Tex. Crim. App. 2001).

And this burden is even higher in the present procedural posture, 

because the Court is to review the two prongs of Strickland v. 

Washington, through this abuse of discretion prism governing motions 

for new trial, reversing only if the trial court’s decision is arbitrary or 

unreasonable. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App.

2004), superseded in part by rule of appellate procedure 21.8(b) on other 

21
grounds, as recognized by State v. Herndon, 215 S.W.3d 901, 905 n.5 

(Tex. Crim. App. 2007); My Thi Tieu v. State, 299 S.W.3d 216, 223 (Tex.

App.—Houston [14th Dist.] 2009, pet. ref’d); Shanklin v. State, 190 

S.W.3d 154, 158–59 (Tex. App.—Houston [1st Dist.] 2005), pet. dism’d, 

211 S.W.3d 315 (Tex. Crim. App. 2007); State v. Gill, 967 S.W.2d 540, 542 

(Tex. App.—Austin 1998, pet. ref’d) (holding that when a trial court 

grants a motion for new trial on the basis of ineffective assistance of 

counsel, an appellate court should review the standards of Strickland

through a prism of the abuse of discretion standard and decide whether 

the trial court’s decision to grant a new trial was so outside the zone of 

reasonable disagreement that it is subject to reversal). Appellant has 

failed to establish a Strickland violation by means of this highly 

discretionary standard.

C. Appellant fails to meet his burden under either prong of 

Strickland.

The record is devoid of any evidence upon which to analyze the 

lower court’s purported decision to overrule the Amended Motion for new 

trial, at least with respect to this point of error. In his Amended Motion, 

Appellant failed even to allege—much less to argue—that counsel was 

22
constitutionally ineffective with respect to Appellant’s right to testify 

during punishment. Moreover, Appellant fails to establish the required 

Strickland prejudice as to his ultimate sentence; and failed even to 

provide the lower court with a description of the testimony he would have 

given. Appellant cannot establish prejudice because of the horrific nature 

of the State’s evidence during the penalty phase of the trial. Because 

Appellant provided no affirmative evidence in support of either prong of 

Strickland, he necessarily fails to establish that the trial court acted 

arbitrarily or unreasonably when it denied his motion for new trial. See

Holden, 201 S.W.3d at 763.

This point of error should be overruled.

 

23
PRAYER FOR RELIEF 

FOR ALL THESE REASONS, the State respectfully requests that 

this Honorable Court overrule Appellant’s single point of error and affirm 

his conviction and sentence.

Respectfully submitted,

NANCY NEMER

District Attorney, Pro Tem

Assistant Attorney General

/s/ Joseph P. Corcoran 

*Lead Appellate Counsel JOSEPH P. CORCORAN*

Assistant District Attorney, Pro Tem

Assistant Attorney General

Supervising Attorney 

 for Non-Capital Appeals

Criminal Appeals Division

State Bar No. 00793549

Joseph.Corcoran@TexasAttorneyGeneral.gov

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Telephone: (512) 936-1400

Facsimile: (512) 936-1280

ATTORNEYS FOR THE STATE

 

24
CERTIFICATE OF SERVICE 

Pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate 

Procedure, I do hereby certify that a true and correct copy of the foregoing 

notice was served electronically through the electronic filing manager, on 

the following attorney via electronic mail:

Timothy D. Salley

State Bar No. 00795633

tsalley53@gmail.com

Moreover, I do hereby certify that a true and correct copy of the foregoing 

pleading has been served directly on counsel of record on the same day of 

this electronic filing, to Mr. Salley, via electronic mail.

/s/ Joseph P. Corcoran 

JOSEPH P. CORCORAN

Assistant District Attorney, Pro Tem

Assistant Attorney General

25
CERTIFICATE OF COMPLIANCE WITH 

TEXAS RULE OF APPELLATE PROCEDURE 9.4 

 

This brief complies with Tex. R. App. Proc. 9.4(i)(2)(C) in that it 

contains 4,109 words (excluding the sections designated in Rule 9.4(i)(1)), 

in Microsoft Word 2010, Century, 14 points..

/s/ Joseph P. Corcoran 

JOSEPH P. CORCORAN

Assistant District Attorney, Pro Tem

Assistant Attorney General 

 

26