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Fulton v. State

Court of Appeals of Texas, Twelfth District, Tyler

June 19, 2019

JAMES FULTON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

          Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 241-1612-16)

          Panel consisted of Worthen, C.J. and Hoyle, J.

          OPINION

          BRIAN HOYLE JUSTICE

         James Fulton appeals his conviction for criminally negligent homicide. He raises three issues on appeal. We reverse and remand.

         Background

         On May 14, 2016, Appellant was driving his pickup truck in the inside westbound lane of Grande Boulevard, a four lane roadway in Tyler, Texas. Appellant failed to navigate a curve in the road, crossed a double yellow line, and drove into oncoming traffic. He collided head on with a small car in the eastbound outside lane, killing the driver, Haile Beasley, almost instantly. Appellant admitted to officers at the scene that he drank beer at dinner prior to the accident. Appellant stated that he was distracted by a deer in the wooded area off the roadway, which caused him to drive into oncoming traffic instead of negotiating the curve in the roadway. Approximately an hour after the accident, an officer administered standardized field sobriety tests. The officer noted two clues on the horizontal gaze nystagmus (HGN) test but did not detect any clues on the other tests. The officer ultimately determined that Appellant was not intoxicated. Officers asked Appellant to provide a blood or breath sample, but he refused. Officers released Appellant from the scene and later issued him a citation for failure to maintain a single lane.

         The State indicted Appellant for criminally negligent homicide. Specifically, the indictment alleged that Appellant drove (1) at a speed greater than the posted speed limit, (2) after consuming alcohol, (3) into an oncoming lane of traffic. At trial, the State established that Appellant consumed between four and five beers earlier in the day while playing golf at The Cascades Country Club. Appellant left the golf course and went to dinner around 6:30 or 7:00 p.m. Appellant was seated at the restaurant around 8:00 p.m. and consumed two and one quarter 19.5 ounce beers and a plate of enchiladas. Appellant left the restaurant between 8:55 and 9:18 p.m. The collision occurred at approximately 9:30 p.m. Data retrieved from Appellant's vehicle indicated he was traveling approximately fifty miles per hour at impact and that he only applied his brakes at the moment of impact, if at all.[1] Kirsten Woodard, who was driving in the inside eastbound lane of Grande Boulevard at the time of the accident, testified that Appellant traveled into her lane immediately prior to the crash, causing her to honk her horn and swerve to avoid him.

         The State conceded that Appellant was not legally intoxicated at the time of the accident but argued that Appellant was impaired by alcohol. The State called expert witnesses to explain the effects of alcohol, such as difficulty with divided attention tasks, even at levels below legal intoxication.

         The jury found Appellant "guilty" of criminally negligent homicide and found the allegation that he used or exhibited a deadly weapon during the commission of the offense to be "true." At punishment, the State again called Woodard, who worked as a bartender at The Cascades. Woodard testified that Appellant came into the bar at The Cascades approximately a month after the accident. She testified that he and his friends ordered alcohol, and Appellant paid with his credit card. The State offered no evidence of prior convictions or other bad acts, but called members of Beasley's family to testify about the impact her death had on them. Appellant called several friends and family members to testify about his character and his remorse about the accident. The State emphasized Appellant's actions in returning to The Cascades and drinking alcohol after the accident both in cross examination of Appellant's witnesses and closing argument. The State asked the jury to sentence Appellant to seven years of imprisonment, but the jury returned a verdict of ten years imprisonment, the maximum sentence.

         Appellant's trial counsel filed a motion for a new trial alleging the State failed to provide him with a letter from Cynthia Davis, an employee of The Cascades, written in response to a subpoena from the State for records of Appellant's credit card transactions. The letter indicated that no records of Appellant using his credit card at The Cascades existed. In his motion, Appellant's trial counsel argued that this evidence was exculpatory, because Woodard testified specifically to seeing Appellant's name on the credit card used to pay for the drinks.

         At a hearing on the motion, Appellant's new counsel questioned his trial counsel about the letter. Appellant's trial counsel testified that he was unaware that the letter existed, and that had he been aware of its existence, he would have impeached Woodard's testimony. State's counsel testified that he verbally made Appellant's counsel aware of the letter prior to trial, but did not provide Appellant's counsel with a written copy. The trial court found that the State verbally notified Appellant's counsel of the contents of the letter and the State's failure to give Appellant's counsel a written copy of the letter did not affect Appellant's substantial rights. Thus, the trial court denied Appellant's motion for a new trial. This appeal followed.

         Sufficiency of the Evidence

         In Appellant's first issue, he complains that the evidence is insufficient to support the jury's verdict. Specifically, he argues that his actions on the night of the collision were not a gross deviation from an ordinary person's standard of care, which is required to sustain a conviction for criminally negligent homicide.

         Standard of Review and Applicable Law

         When reviewing the sufficiency of the evidence, we must view the evidence "in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)). The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony, and an appellate court must not usurp this role by substituting its own judgment for that of the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Our duty simply is to ensure that the evidence presented supports the jury's verdict and that the State presented a legally sufficient case for the offense charged. Id. When an appellate court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record. Id. "Under this standard, evidence may be legally insufficient when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt." Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 320, 99 S.Ct. at 2790).

         To support a conviction for criminally negligent homicide the State must prove that (1) the defendant's conduct caused the death of an individual; (2) the defendant ought to have been aware that there was a substantial and unjustifiable risk of death from his conduct; and (3) his failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. Montgomery, 369 S.W.3d at 192-93; see also Tex. Penal Code Ann. §§ 6.03(d), 19.05(a) (West 2011 and 2019). The circumstances are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred. Montgomery, 369 S.W.3d at 193. Criminal negligence does not require proof of a defendant's subjective awareness of the risk of harm, but rather his awareness of the attendant circumstances leading to such a risk. Id. Criminal negligence occurs not when the actor is aware of a substantial risk and disregards it, but rather, when he fails to perceive the risk at all. See id.

         There exists a legal distinction between criminal negligence and ordinary civil negligence. Id. "Civil or 'simple' negligence 'means the failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.'" Tello v. State, 180 S.W.3d 150, 158 (Tex Crim App 2005) (Cochran, J, concurring). Conversely, "[c]onduct that constitutes criminal negligence involves a greater risk of harm to others, without any compensating social utility, than does simple negligence." Montgomery, 369 S.W.3d at 193. "The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community's sense of right and wrong." Id. The risk must be "substantial and unjustifiable," and the failure to perceive it must be a "gross deviation" from reasonable care as judged by general societal standards by ordinary people. Id. "In finding a defendant criminally negligent, a jury is determining that the defendant's failure to perceive the associated risk is so great as to be worthy of a criminal punishment." Id. "The degree of deviation from reasonable care 'is measured solely by the degree of negligence, not any element of actual awareness.'" Id. (quoting Tello, 180 S.W.3d at 158 (Cochran, J., concurring)). "Whether a defendant's conduct involves 'an extreme degree of risk' must be determined by the conduct itself and not by the resultant harm." Williams v. State, 235 S.W.3d 742, 753 (Tex. Crim. App. 2007) (discussing "substantial and unjustifiable risk" in recklessness and criminal negligence). "Nor can criminal liability be predicated on every careless act merely because its carelessness results in death or injury to another." Id.

         Queeman, Montgomery, and Tello

         Appellant argues that the State failed to prove he acted with criminal negligence on the night of the accident. In support of his argument, he directs our attention to Queeman v. State, a recent court of criminal appeals decision analyzing the sufficiency of the evidence for criminally negligent homicide in the context of a traffic accident. 520 S.W.3d 616 (Tex. Crim. App. 2017).

         In Queeman, the appellant rear ended another vehicle, killing one of its passengers. See id. at 619. The State alleged that the appellant's failure to control his speed and failure to maintain a proper distance between his vehicle and other traffic constituted criminal negligence. Id. at 624. The court held that the appellant's actions did not constitute a gross deviation from the usual standard of care while driving. Id. at 630. In so doing, the court compared the appellant's conduct to the conduct of the appellants in Montgomery and Tello, two cases wherein the court held the evidence to be sufficient to support a conviction for criminally negligent homicide.

         In Montgomery, the appellant drove in the center lane of a three-lane service road adjacent to the interstate while talking on her cell phone. Montgomery, 369 S.W.3d at 191. After hanging up the phone, she realized that she missed the entrance ramp to the interstate that diverged from the left lane, and abruptly swerved into the left lane to try to exit the service road onto the interstate. Id. Her lane change occurred after she had already passed the "safety barrier"-the beginning of the solid-white-lined area on the pavement between the ramp and the service road. Id. This sudden, late lane change caused a three-vehicle accident in which a passenger in one of the vehicles was killed. Id. The appellant was convicted of criminally negligent homicide based on the State's evidence of her use of a cell phone, her unsafe lane change, and her failure to maintain a proper lookout. Id. In upholding the appellant's conviction, the court observed that she was driving slower than surrounding traffic, was past the "safety barrier" when she suddenly changed lanes, did not signal her lane change or look for surrounding traffic, and attempted to enter an on-ramp past its entrance. Id. at 194. The court held that a rational jury could have concluded that, under the circumstances proved at trial, the appellant was criminally negligent because she should have been aware of the substantial and unjustifiable risk created by her actions. Id. The court further held that her failure to appreciate such a risk, given the circumstances known to her at the time, was a gross deviation from the standard of care that an ordinary person would exercise under the same circumstances. Id.

         In Tello, the appellant was convicted of criminally negligent homicide for failing to adequately secure a homemade trailer to his truck. Tello, 180 S.W.3d at 150. The appellant was towing a load of dirt on the trailer when it detached from the hitch on his truck and killed a pedestrian. Id. The court of criminal appeals determined that the evidence was sufficient because the appellant did not connect the trailer with safety chains as required by law and, moreover, failed to properly attach the trailer hitch, which did not lock properly because it had been hammered repeatedly in attempt to get it to latch. Id. at 151-153. The court held that the cumulative circumstances in the record presented a dangerous situation because an ordinary person would know that the trailer could detach in transit. Id. at 156. Moreover, the evidence supported the conclusion that the appellant was aware of the problems with the trailer, yet failed to perceive a substantial and unjustifiable risk of death from his conduct of knowingly using a faulty trailer hitch without safety chains on a public roadway. Id. at 156. The court held that the jury rationally found the appellant criminally negligent because his failure to perceive the substantial and unjustifiable risk of death was a gross deviation from the standard of care that an ordinary person would exercise under the circumstances. Id.

         In Queeman, the court distinguished the appellant's conduct in Montgomery because no evidence suggested that the appellant in Queeman was engaging in any activity while driving that a reasonable person would know might distract him, nor did he make an unsafe driving maneuver that a reasonable driver would recognize was inherently risky. Queeman, 520 S.W.3d at 628. The court distinguished the appellant's conduct in Queeman from that of the appellant in Tello because nothing in the record demonstrated that he was on notice of any particular circumstance that an ordinary person would perceive as creating a substantial and unjustifiable risk and for which it would be a gross deviation from the ordinary standard of care to ignore. Id. at 629-30. In Queeman, the evidence at trial established that (1) the appellant rear ended the victim's vehicle causing it to overturn, (2) the victim's vehicle was stopped at the time of impact with its brake lights and turn signal illuminated, (3) the appellant was traveling faster than he claimed, and (4) the appellant did not apply his brakes until the point of impact. Id. at 625. However, the evidence did not quantify the appellant's pre impact speed. Id. The record merely established that he traveled faster than the thirty-six or thirty-seven miles per hour he claimed to have traveled. Id. The court concluded a rational jury could not find that the appellant was speeding excessively beyond the posted speed limit, because to do so would require speculation beyond what was shown by the evidence or what could be rationally inferred therefrom. Id. The court further noted that the jury rationally could have found that the appellant did not swerve to miss the victim, but it noted that nothing in the record established where the appellant was looking when the crash occurred, the reason for his inattentiveness, or the length of time he was inattentive. Id. at 626. Although the record supported a rational conclusion that the appellant was inattentive long enough for him to collide with the back corner of the victim's vehicle, nothing in the record demonstrated whether this was ordinary or gross inattentiveness that contributed to the collision. Id. This conduct, the court held, was a deviation from the ordinary standard of care required to satisfy civil negligence, but absent evidence of more egregious conduct, did not constitute a gross deviation from the standard of care required for criminal negligence. Id. at 630.

         Analysis of Appellant's Conduct

         Appellant argues that his conduct, like the appellant in Queeman, does not rise to the standard of criminal negligence. He points out that he was not excessively speeding, and the State was unable to prove that he was distracted for an overly long period of time. Appellant also argues that the State failed to prove "what society would regard as an acceptable amount to drink before driving." Further, he states that "the State's assumption was that any impairment [while driving] (which arguably led to an accident) would constitute a deviation from ordinary standards of care so great that the criminal law should step in and impose a penalty."

         The State presented evidence that Appellant consumed between four and five beers on the golf course earlier in the day, and consumed approximately forty four ounces of beer over the course of less than an hour and half at dinner. Approximately, ten to fifteen minutes after leaving the restaurant, Appellant caused the collision with Beasley. At trial, the State offered evidence that Appellant was impaired by the alcohol he consumed prior to the wreck. Dr. Michael Arambula testified that Appellant exhibited difficulty with the divided attention tasks necessary to safely operate a vehicle at the time of the crash. Arambula reviewed deposition testimony Appellant gave in a separate civil suit, in which Appellant testified that he was cautious about driving that day because of his alcohol consumption. Appellant further testified in the deposition that he was familiar with the roadway, and had driven after drinking too much at that particular restaurant in the past. Arambula opined that Appellant's failure to navigate the curve after becoming distracted, on a roadway he was familiar with, after drinking beer all day and at dinner, caused him to form the opinion that Appellant was under the influence and impaired on alcohol at the time of the accident. Arambula also considered that Appellant displayed two clues on the HGN test an hour after the accident, and that Appellant failed to react to Woodard's lights or horn prior to impact.

         Scott Brown, a forensic scientist employed by the Texas Department of Public Safety (DPS), testified about the effects of alcohol on the human body. Brown opined that any amount of alcohol will make driving more difficult because driving requires divided attention tasking. Brown also testified to the typical rates of alcohol absorption and elimination. He testified that an average person who consumed three beers would reach a peak alcohol concentration of .06. He testified that an average person eliminates alcohol at a rate of .02 per hour.

         Jimmy Jackson, a lieutenant with DPS, opined that Appellant was impaired based on the amount of alcohol he was known to have consumed on the evening in question. He testified that Appellant's inability to divert his attention back to roadway after becoming distracted by a deer, causing him to cross two lanes of traffic, indicated that he was having difficulty with the divided attention tasks attendant to operating a vehicle. Jackson testified that if he had been investigating the accident, he would have applied for a warrant for Appellant's blood, and that Appellant's refusal to consent to a blood draw indicated to him that Appellant was concerned he was intoxicated or "borderline."

         In addition to the testimony of Arambula, Brown, and Jackson, the State established that Appellant was familiar with the roadway, and did not react to Woodard's lights and horn. Taken together, the evidence allowed the jury to reasonably conclude that Appellant was impaired by alcohol at the time of the collision. This evidence distinguishes Appellant's case from the facts in Queeman. In Queeman, the court reasoned that

…the State need not prove the reasons why a driver was inattentive in order to establish criminal negligence, we note here that there is nothing in this record to show that appellant was engaged in acts that might be characterized as grossly negligent in the context of his failure to control speed and failure to maintain a safe distance, such as talking on a cell phone, texting, or intoxication. Tragic consequences, as here, do not elevate ordinary negligence to criminal negligence. We conclude that appellant's failure to maintain a safe speed and proper distance are acts showing a deviation from the ordinary standard of care expected of drivers on our roads, but, without more, they do not rise to the level of a gross deviation from that standard of care and thus do not constitute criminally negligent homicide.

Queeman, 520 S.W.3d at 630. Here, the State proved an act "characterized as grossly negligent" - drinking between four and five beers during the day, followed by drinking approximately forty four more ounces of beer at dinner, prior to driving. Our sister courts have held that driving after consuming alcohol or controlled substances without establishing intoxication can establish recklessness, a higher culpable mental state than criminal negligence. See Turner v. State, 435 S.W.3d 280, 286 (Tex. App.-Waco 2014, pet. ref'd); see also Rubio v. State, 203 S.W.3d 448, 452 (Tex. App.-El Paso 2006, pet. ref'd) ("[T]he fact that one may legally drive after consuming alcohol does not prevent the State from alleging the driver was reckless in doing so."); Buie v. State, No. 03-02-00280-CR, 2003 WL 21189757, at *2 (Tex. App.-Austin May 22, 2003, no pet.) (mem. op.).

         We must view the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Anderson, 416 S.W.3d at 888. In finding that Appellant was impaired at the time of the accident, the jury could have considered Appellant's (1) consumption of between four and five beers during the afternoon prior to the accident; (2) consumption of an additional forty four ounces of beer at dinner just prior to driving; (3) familiarity with the roadway; (4) failure to react to Woodard's horn and lights prior to the accident; (5) refusal to submit a blood or breath sample; and (6) exhibition of two clues on the HGN test an hour after the accident.

         We hold that a rational jury could have found that Appellant was criminally negligent because he should have been aware that drinking such a substantial amount of alcohol prior to driving could cause him to be impaired. See Montgomery, 369 S.W.3d at 194; Tello, 180 S.W.3d at 156. Further, the jury could reasonably have found that Appellant's failure to perceive the risk that consuming the alcohol would impair his driving, was a gross deviation from the standard of care that an ordinary person would exercise under the same circumstances. See Montgomery, 369 S.W.3d at 194; Tello, 180 S.W.3d at 156. Contrary to the dissent's assertion, our holding does not stand for the proposition that an individual who drinks any amount of alcohol and becomes involved in a fatal car accident acts with criminal negligence. Rather, our holding is limited to the specific facts and circumstances proved at the trial of this case. Appellant's first issue is overruled.

         Ineffective Assistance of Counsel

         In his second issue, Appellant argues that he received ineffective assistance of counsel during the punishment phase of trial because his trial counsel failed to impeach Woodard regarding Appellant's use of a credit card at The Cascades after the collision.

         Standard of Review and Applicable Law

         To establish ineffective assistance of counsel, an appellant must show that trial counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Under the first prong, the appellant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Under the second prong, an appellant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

         Deficient performance requires a showing that trial counsel's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reviewing court must presume that trial counsel acted within the proper range of reasonable and professional assistance and that his decisions at trial were based on sound trial strategy. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. It is not our role to speculate as to the basis for trial counsel's actions; thus, a record that is silent on the reasoning behind counsel's actions is sufficient to deny relief. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.- Houston [14th Dist.] 2000, pet. ref'd); see Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). We will not conclude that challenged conduct is deficient unless it 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). It is the appellant's burden to establish ineffective assistance by a preponderance of the evidence. Ex Parte Chandler, 182 S.W.3d 350, 354 (Tex. Crim. App. 2005); Bone, 77 S.W.3d at 833.

         Deficient Performance

         At the hearing on Appellant's motion for a new trial, State's counsel testified that he had a telephone conversation with Appellant's trial counsel wherein they discussed that Woodard would testify that Appellant returned to The Cascades after the collision. Specifically, State's counsel recalled telling trial counsel that he was sure Woodard's testimony would preclude the jury from electing to probate Appellant's sentence. State's counsel further recalled that trial counsel seemed more concerned with whether the State intended to offer Woodard's testimony about Appellant's return to The Cascades during the guilt or punishment phase. State's counsel conceded that he failed to give trial counsel physical copies of the emails the State exchanged with Ginny Montoya, the custodian of records from The Cascades, and the letter from Davis stating that The Cascades had no record of Appellant ever using his credit card (The Cascades letter).

         Trial counsel testified that he was aware Woodard would testify, but did not recall State's counsel telling him that Woodard would testify that Appellant used his credit card when he returned to The Cascades. Trial counsel testified that he did not recall being told that the State had The Cascades letter. Trial counsel testified that had he known about The Cascades letter, he would have used it during his cross examination of Woodard to impeach her testimony and would have sought to call Montoya to testify that there was no record of Appellant ever using his credit card at The Cascades.

         The trial court found that the credible evidence established that trial counsel was informed before the trial that The Cascades letter existed. The State and Appellant agree that we must give deference to the trial court's fact finding that trial counsel was informed of The Cascades letter. See Ex parte Ellis, 233 S.W.3d 324, 331 (Tex. Crim. App. 2007) ("almost total deference" should be given to fact findings supported by record, especially when they are based upon credibility and demeanor).

         The State argues that trial counsel's failure to cross examine Woodard regarding The Cascades letter does not constitute deficient performance:

Instead of disputing whether his client continued to drink, [trial counsel] likely chose to sidestep [Appellant's] alcohol consumption altogether and focus on redeeming aspects of [Appellant's] character and personality.

         The record does not support this argument. Trial counsel testified that had he known about The Cascades letter he would have used it to impeach Woodard's testimony. The trial court found that counsel did have knowledge of The Cascades letter, and we must give that finding almost total deference. Thus, our inquiry is whether trial counsel's failure to impeach Woodard with The Cascades letter fell below an objective standard of reasonableness. We hold that it does. Trial counsel indicated that his failure to impeach Woodard or offer evidence regarding The Cascades letter was not based on trial strategy. See Ex parte Saenz, 491 S.W.3d 819, 828 (Tex. Crim. App. 2016). In addition, it was objectively unreasonable for trial counsel to not impeach Woodard or offer extrinsic evidence of the contents of The Cascades letter. During punishment, trial counsel called witnesses to testify that Appellant was remorseful about the collision. Woodard's testimony seriously undermined this strategy, and it was objectively unreasonable to not impeach Woodard with evidence that directly contradicted her testimony. See id. at 828-29.

         Prejudice

         Having concluded that trial counsel's performance was objectively deficient, we now decide whether Appellant suffered prejudice as a result. To satisfy the prejudice prong of Strickland, the appellant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Kober v. State, 988 S.W.2d 230, 232 (Tex. Crim. App. 1999). Reasonable probability means a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694; 104 S.Ct. at 2068.

         At punishment, the State offered no evidence of past criminal history or other bad acts. The State relied heavily on Woodard's testimony that Appellant returned to drink at The Cascades after the accident to show that Appellant lacked remorse for his actions. The following exchange occurred during Woodard's direct examination by the State:

State: When you saw him come in and you - and he's back at The Cascades, you know the
circumstances of the - that surrounded Haile's death, he's in the bar, drinks are being ordered, he's with a bunch of guys back at the The Cascades where he had golfed the day Haile was dead, what went through your mind?
Woodard: I was supposed to take the table. I couldn't manage to take the table. The outside area is my area to serve, and I had to get the server to go to table and speak with everyone. I stepped in the back, and then she came over and told me that they were drinking. I got them ready, and she delivered the drinks.
State: You asked someone else to take your place?
Woodard: Yes, sir.
State: But you actually had to prepare the drinks to go to the table for the man that you knew had killed the girl you'd had that connection with -
Woodard: Yes, sir.
State: -- just moments before her death? Was that difficult?
Woodard: It was. I - that's why I had to step back. I couldn't do it myself. But certainly, making the drinks, I made sure that I did not overpour whatsoever.

         In addition to emphasizing the emotional impact Appellant's return to The Cascades had on Woodard, the State repeatedly emphasized Appellant's return to The Cascades during its cross-examination of Appellant's witnesses. Appellant called two employees of the Smith County Community Supervision and Corrections Department to testify about the terms and conditions Appellant would be required to abide by if ...


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