NO. 05-15-00453-CR

IN THE COURT OF APPEALS 

FOR THE FIFTH DISTRICT OF TEXAS 

AT DALLAS

 

TILWEN JOSEPH GREEN, 

 APPELLANT 

v.

THE STATE OF TEXAS, 

 APPELLEE 

 

On appeal from the Criminal District Court No. 5 of Dallas County 

In Cause Number F09-30331-L 

 

STATE’S BRIEF

 

 Counsel of Record:

Susan Hawk Johanna H. Kubalak 

Criminal District Attorney Assistant District Attorney

Dallas County, Texas State Bar No. 24014297 

 Frank Crowley Courts Bldg. 

 133 N. Riverfront Blvd., LB-19 

 Dallas, Texas 75207-4399 

 (214) 653-3639

 (214) 653-3643 fax 

 Anna.Kubalak@dallascounty.org 

ATTORNEYS FOR THE STATE OF TEXAS

ACCEPTED

05-15-00453-CR

FIFTH COURT OF APPEALS

DALLAS, TEXAS

8/14/2015 2:21:35 PM

LISA MATZ

CLERK

 RECEIVED IN 5th COURT OF APPEALS DALLAS, TEXAS 8/14/2015 2:21:35 PM LISA MATZ Clerk

5th Court of Appeals

FILED: 08/17/2015

 10:18:57

Lisa Matz, Clerk
i

TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................ii

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

STATEMENT OF FACTS .......................................................................... 1

SUMMARY OF ARGUMENT................................................................... 3

ARGUMENT ............................................................................................. 4

RESPONSE TO APPELLANT’S SOLE ISSUE:

The record does not support appellant’s claim that trial counsel was 

ineffective for failing to request that a court reporter transcribe the 

adjudication hearing. .............................................................................. 4

A. To establish ineffective assistance of counsel, appellant must 

show both deficient performance and prejudice. ............................ 4

B. Appellant has failed to defeat the presumption that counsel 

provided reasonable professional assistance................................... 6

C. Appellant has failed to establish that counsel’s performance, 

assuming it was deficient, prejudiced his defense. .......................... 8

PRAYER .................................................................................................. 10

CERTIFICATE OF COMPLIANCE......................................................... 10

CERTIFICATE OF SERVICE .................................................................. 11
ii

INDEX OF AUTHORITIES

Cases

Bone v. State, 

77 S.W.3d 828 (Tex. Crim. App. 2002) ..................................................... 5

Goodspeed v. State, 

187 S.W.3d 390 (Tex. Crim. App. 2005).................................................... 6

Kelley v. State, 

Nos. 05-11-00842-CR, 05-11-00843-CR, 2013 Tex. App. LEXIS 985 (Tex. 

App.—Dallas Jan. 31, 2013, pet. ref’d) (not designated for publication) ...... 7

Lopez v. State, 

343 S.W.3d 137 (Tex. Crim. App. 2011).........................................4, 5, 6, 7

Mata v. State, 

226 S.W.3d 425 (Tex. Crim. App. 2007)................................................ 5, 7

Rivera v. State, 

981 S.W.2d 336 (Tex. App.—Houston [14th Dist.] 1998, no pet.)............... 8

Rylander v. State, 

101 S.W.3d 107 (Tex. Crim. App. 2003).................................................... 7

Satterfield v. State, 

367 S.W.3d 868 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)........ 8, 9

Strickland v. Washington, 

466 U.S. 668 (1984)..................................................................... 4, 5, 7, 10

Tapia v. State, 

462 S.W.3d 29 (Tex. Crim. App. 2015) ..................................................... 9

Thompson v. State, 

9 S.W.3d 808 (Tex. Crim. App. 1999) ................................................5, 6, 7

Young v. State, 

425 S.W.3d 469 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).............. 8
iii

Statutes

Tex. Penal Code Ann. § 12.33 (West 2011) ................................................... 9

Tex. Penal Code Ann. § 22.02 (West 2011) ................................................... 1

Rule

Tex. R. App. P. 13.1 .................................................................................... 6
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TO THE HONORABLE COURT OF APPEALS:

The State of Texas submits this brief in response to the brief of appellant, 

Tilwen Joseph Green.

STATEMENT OF THE CASE

Appellant waived his right to a jury trial and entered a non-negotiated 

plea of guilty to the second-degree-felony offense of aggravated assault with a 

deadly weapon. (C.R.: 9, 23; R.R.: 5). See Tex. Penal Code Ann. § 22.02(a)(2), 

(b) (West 2011). The trial court accepted appellant’s plea but deferred further 

proceedings without entering an adjudication of guilt and placed appellant on 

six years’ community supervision. (C.R.: 30; R.R.: 6, 18).

The State later moved to proceed with an adjudication of guilt, alleging 

that appellant had violated certain conditions of his community supervision. 

(C.R.: 44-45). Appellant entered non-negotiated pleas of true to the alleged 

violations. (C.R.: 56-57). The trial court found the violations to be true, found 

appellant guilty of the charged offense, and assessed his punishment at six 

years’ imprisonment. (C.R.: 51).

STATEMENT OF FACTS

The indictment alleged that appellant caused bodily injury to the 

complainant, Alfred Royal, by cutting and stabbing him with a knife. (C.R.: 9). 

Appellant pleaded guilty to the indictment at a hearing on May 17, 2010. 
2

(R.R.: 5). The State offered into evidence appellant’s signed judicial 

confession, which tracked the language of the indictment, and it was admitted 

without objection. (C.R.: 26; R.R.: 5-6). The trial court accepted appellant’s 

plea and then passed the case for sentencing at a later date. (R.R.: 6).

The proceedings resumed on September 21, 2010. (R.R.: 7). The State 

called Royal, who testified to the physical and financial hardships he had 

suffered as a result of the assault and to his desire that appellant receive prison 

time. (R.R.: 7-11). Testifying on his own behalf, appellant spoke about his own 

recent medical problems and expressed regret for what he had done to Royal. 

(R.R.: 13-14). He asked the trial court to grant him deferred-adjudication 

probation. (R.R.: 15). After hearing closing arguments, the trial court ruled

that it was not going to find appellant guilty at that time but would place him 

on six years’ deferred-adjudication probation. (R.R.: 18).

The State filed its motion to proceed with an adjudication of guilt on 

May 6, 2014, alleging that appellant had violated four conditions of his 

community supervision. (C.R.: 44-45). On March 13, 2015, appellant signed 

an open plea agreement, in which he pleaded true and judicially confessed to 

all four violations. (C.R.: 56-57). The docket sheet reflects that a hearing on the 

motion to adjudicate was held on that same date. (C.R.: 8). Also on that same 
3

date, the trial court entered its judgment adjudicating appellant’s guilt and 

sentencing him to six years’ imprisonment. (C.R.: 51).

The reporter’s record filed in this case does not include a transcription of 

the March 13, 2015 adjudication hearing. It does, however, include the 

following note: “The Motion to Proceed held March 13, 2015, the reporter’s 

appearance was waived by Counsel for Defendant . . . . Therefore, no 

reporter’s record is available for filing with the Court in that matter.” (R.R.: 

19).

SUMMARY OF ARGUMENT

The record does not support appellant’s claim that his trial counsel was 

ineffective for failing to ensure that a record was made of the adjudication 

hearing. The record before this Court is silent as to the reasoning behind 

counsel’s decision not to have a court reporter transcribe the hearing. 

Accordingly, this Court must presume that counsel’s performance fell within 

the wide range of reasonable professional assistance. Additionally, appellant 

does not point to any specific error that a transcript of the adjudication hearing 

would have revealed. Thus, he has failed to show that the lack of a record has 

prejudiced his defense.
4

ARGUMENT

RESPONSE TO APPELLANT’S SOLE ISSUE

The record does not support appellant’s claim that trial 

counsel was ineffective for failing to request that a court 

reporter transcribe the adjudication hearing.

In his sole issue, appellant contends that his trial counsel rendered 

ineffective assistance by failing to have a court reporter transcribe the hearing 

on the State’s motion to proceed with an adjudication of guilt. He argues that 

the lack of a record makes it impossible to determine whether any error 

occurred at the adjudication hearing.

A. To establish ineffective assistance of counsel, appellant must 

show both deficient performance and prejudice.

To prevail on his ineffective-assistance claim, appellant must first show 

that counsel’s performance was deficient. See Strickland v. Washington, 466 U.S. 

668, 687 (1984). Specifically, appellant must prove by a preponderance of the 

evidence that counsel’s performance fell below an objective standard of 

reasonableness under prevailing professional norms. See Lopez v. State, 343 

S.W.3d 137, 142 (Tex. Crim. App. 2011). Next, appellant must show that 

counsel’s deficient performance prejudiced his defense. See Strickland, 466 U.S. 

at 687. To prove prejudice, appellant must show that there is a reasonable 

probability — meaning a probability sufficient to undermine confidence in the 
5

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

proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 

812 (Tex. Crim. App. 1999).

Judicial scrutiny of counsel’s performance is highly deferential, and an 

appellate court must indulge a strong presumption that counsel’s conduct fell 

within the wide range of reasonable professional assistance. See Strickland, 466 

U.S. at 689; Lopez, 343 S.W.3d at 142. To defeat this presumption, a defendant 

alleging ineffective assistance of counsel must prove, by a preponderance of the 

evidence, that there was, in fact, no plausible professional reason for the 

challenged act or omission. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. 

App. 2002).

The Court of Criminal Appeals has repeatedly stated that ineffectiveassistance claims are generally not successful on direct appeal and are more 

appropriately urged in a hearing on an application for a writ of habeas corpus. 

Lopez, 343 S.W.3d at 143. The record on direct appeal is usually undeveloped 

and inadequately reflective of the reasons for defense counsel’s actions or 

inactions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). 

For an ineffective-assistance claim to prevail on direct appeal, the record must 

demonstrate that counsel’s performance fell below an objective standard of 

reasonableness as a matter of law, and that no reasonable trial strategy could 
6

have justified counsel’s acts or omissions, regardless of his or her subjective 

reasoning. Lopez, 343 S.W.3d at 143.

B. Appellant has failed to defeat the presumption that counsel 

provided reasonable professional assistance.

A court reporter is generally required to attend and record all court 

proceedings unless excused by agreement of the parties. See Tex. R. App. P. 

13.1(a). The reporter’s record in this case contains a note indicating that trial

counsel waived the appearance of the court reporter at the adjudication 

hearing. (R.R.: 19). Appellant, however, argues that nothing in the plea papers 

or the docket sheet reflects that he knowingly and voluntarily agreed to waive

his right to a court reporter. He also contends that “[w]ithout a record, it 

cannot be determined whether counsel objected to the lack of a reporter at the 

sentencing hearing.” (Appellant’s Brief, p. 7).

This uncertainty regarding exactly what counsel did or did not do at trial

and the reasoning behind counsel’s apparent decision not to have a record 

made of the adjudication hearing illustrates why direct appeal is usually an 

inadequate vehicle for raising an ineffective-assistance claim. See Goodspeed v. 

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). An allegation of 

ineffectiveness must be “firmly founded in the record,” and “the record must 

affirmatively demonstrate” the meritorious nature of the claim. Id. (quoting 

Thompson, 9 S.W.3d at 814). It is not appropriate for an appellate court to 
7

simply infer ineffective assistance based upon unclear portions of the record. 

Mata, 226 S.W.3d at 432. Moreover, trial counsel “should ordinarily be 

afforded an opportunity to explain his actions before being denounced as 

ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). 

Here, the record is silent as to counsel’s reasons for either waiving the 

court reporter’s attendance or otherwise failing to ensure that a transcription 

was made of the adjudication hearing. Appellant did not file a motion for new 

trial or attempt in some other way to develop a record explaining counsel’s 

reasons for not insisting upon a court reporter’s presence. Under these 

circumstances, appellant has failed to rebut the strong presumption that 

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

assistance. See Lopez, 343 S.W.3d at 143-44; Thompson, 9 S.W.3d at 814; see 

also, e.g., Kelley v. State, Nos. 05-11-00842-CR, 05-11-00843-CR, 2013 Tex. 

App. LEXIS 985, at *5 (Tex. App.—Dallas Jan. 31, 2013, pet. ref’d) (not 

designated for publication) (holding that the defendant failed to satisfy the 

deficient-performance prong of Strickland where the record was silent as to 

counsel’s reasoning or rationale for not requesting a court reporter at the openplea hearing). Because he has failed to meet his burden of showing deficient 

performance, appellant’s ineffective-assistance claim should be overruled. See 

Strickland, 466 U.S. at 700; Lopez, 343 S.W.3d at 144.
8

C. Appellant has failed to establish that counsel’s performance, 

assuming it was deficient, prejudiced his defense.

The failure to request that a court reporter transcribe a plea hearing does 

not per se constitute ineffective assistance of counsel. See Young v. State, 425 

S.W.3d 469, 473 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). When 

counsel did not request a transcription, an appellate court will not speculate as 

to what actually occurred at the hearing. Id. The defendant must point to some 

specific injury resulting from the failure to request a recording of the 

proceeding. Rivera v. State, 981 S.W.2d 336, 339 (Tex. App.—Houston [14th 

Dist.] 1998, no pet.).

Appellant does not allege that any specific error occurred at the 

adjudication hearing. Instead, he argues that the lack of a record prevents him 

from searching for potential error. This is not a sufficient showing of prejudice.

See Young, 425 S.W.3d at 473; Satterfield v. State, 367 S.W.3d 868, 871 (Tex. 

App.—Houston [14th Dist.] 2012, pet. ref’d). Appellant does not elaborate on 

what type of error might have occurred; he merely points out that “[t]his was 

an open plea of true which required the trial court to determine whether to 

adjudicate guilt.” (Appellant’s Brief, p. 6). But the likelihood of a successful 

appeal of the trial court’s decision to adjudicate guilt in this case is small, at 

best. See Rivera, 981 S.W.2d at 339 (“Where the prospect of a successful appeal 

is slight, the value of a court reporter is diminished.”). Appellant does not 
9

dispute that he pleaded true to the allegations in the State’s motion to 

adjudicate. A plea of true, standing alone, is sufficient to support a trial court’s 

decision to revoke community supervision and adjudicate guilt. Tapia v. State, 

462 S.W.3d 29, 29 n.2 (Tex. Crim. App. 2015). When, as in this case, a 

defendant enters a plea of true at an adjudication hearing, the proceeding 

becomes a unitary one to determine the remaining issue of punishment. Id.

Appellant does not contend that his punishment in this case was somehow 

unfair. Indeed, the six-year sentence was at the low end of the two-to-twentyyear punishment range for a second-degree felony and corresponded to the 

original term of community supervision. See Tex. Penal Code Ann. § 12.33(a) 

(West 2011).

Without an allegation of a specific error to which a transcription of the 

adjudication hearing would be relevant, appellant cannot show that, but for 

counsel’s failure to request a record, a reasonable probability exists that the 

result of the proceeding would have been different. See, e.g., Satterfield, 367 

S.W.3d at 871-72 (holding that the defendant failed to show he was prejudiced 

by counsel’s failure to request a recording of the punishment hearing that 

followed his entry of a guilty plea before the court where the defendant did not 

allege that any error occurred during the punishment hearing, and the chances 

of a successful appeal were remote). Appellant has therefore failed to establish 
10

the prejudice component of his ineffective-assistance claim, and his sole issue 

should be overruled. See Strickland, 466 U.S. at 687.

PRAYER

The State prays that this Honorable Court affirm the trial court’s 

judgment.

Respectfully submitted,

/s/ Johanna H. Kubalak

Susan Hawk Johanna H. Kubalak

Criminal District Attorney Assistant District Attorney

Dallas County, Texas State Bar No. 24014297

Frank Crowley Courts Bldg.

133 N. Riverfront Blvd., LB-19

Dallas, Texas 75207-4399

(214) 653-3639

(214) 653-3643 fax

Anna.Kubalak@dallascounty.org

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing brief, inclusive of all contents, is 2,557

words in length according to Microsoft Word 2010, which was used to prepare 

the brief, and complies with the word-count limit in the Texas Rules of 

Appellate Procedure. See Tex. R. App. P. 9.4(i).

/s/ Johanna H. Kubalak

Johanna H. Kubalak
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CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing State’s brief was served 

on Dianne Jones McVay, attorney for appellant, via electronic delivery to 

dianne@jonesmcvay.com on August 14, 2015.

/s/ Johanna H. Kubalak

Johanna H. Kubalak