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Click here for the full text of this decision FACTS:The applicant seeks habeas corpus relief from his convictions for murder and aggravated assault. The convictions stem from the applicant’s actions after an altercation in a bar in Harris County. In fleeing from the bar, the applicant ran over Latasha Vasquez and Tracey Johnson with his pickup truck. The main issue during the single trial was whether the applicant ran over the women intentionally. In his challenge to the conviction, the applicant claims that his trial counsel were ineffective for opening the door to the prosecutor’s cross-examination about the applicant’s post-arrest silence. The applicant also raised six other claims of ineffective assistance of counsel. To obtain habeas corpus relief for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1994), the applicant must show that counsels’ performance was deficient and that a probability exists, sufficient to undermine the court’s confidence in the result, that the outcome would have been different but for counsels’ deficient performance. The convicting court agreed with the applicant and found that trial counsels’ performance had been deficient for opening the door to the prosecutor’s questions. The convicting court also found four other instances of deficient performance. In addition, the convicting court found that there was a reasonable probability that the outcome of the case would have been different if counsel had not opened the door to testimony regarding the applicant’s post-arrest silence. The other errors committed by counsel further undermined the convicting court’s confidence in the result of the trial. The convicting court recommended that this court grant relief. HOLDING:Denied. The applicant claims that trial counsels’ performance was deficient for failing to file a motion in limine or to object to testimony and argument that applicant failed to tell his exculpatory version of the events to the police after his arrest The applicant also alleges that counsel were deficient in opening the door to this testimony. The court concludes that the record does not support the conclusion that there was a probability of a different outcome had trial counsel not opened the door to testimony about the applicant’s post-arrest silence. The applicant complains that trial counsel failed to conduct an adequate investigation and failed to discover valuable impeachment evidence. Specifically, the applicant alleges that trial counsel failed to investigate and interview Jerry Thompson, the manager of the bar where the crimes occurred. To obtain relief on an ineffective assistance of counsel claim based on an uncalled witness, the applicant must show that Thompson had been available to testify and that his testimony would have been of some benefit to the defense. The court concludes that counsel conducted an adequate investigation and that Thompson’s testimony would not have been of benefit to the applicant in his case. The applicant complains that trial counsel were ineffective because they failed to file a motion in limine or to object to lay opinion testimony that the applicant intentionally ran over the victims. To show ineffective assistance of counsel for the failure to object during trial, the applicant must show that the trial judge would have committed error in overruling the objection. The lay testimony about which the applicant complains was admissible. Because the testimony was admissible under Rule of Evidence 701, trial counsel were not ineffective for failing to object. The applicant alleges that trial counsel were ineffective for failing to file a motion in limine or to object to the opinion testimony of two police officers that the applicant had committed murder. Specifically, the applicant alleges that counsel failed to object to accident investigator Nita Corman’s testimony that she determined from witness interviews that the applicant “had deliberately run over the young ladies” and to homicide detective Bob King’s testimony that he had been to a “murder scene” and that the applicant had “intentionally committed murder.” The court concludes that the applicant has not met the prejudice prong of the Strickland test. The applicant alleges that counsel were ineffective for failing to request jury instructions on the lesser-included offense of manslaughter and criminally negligent homicide. In his affidavit, trial counsel asserted that he discussed instructions on the lesser-included offenses with the applicant and deferred to the applicant’s decision not to request them. The court concludes that counsel were not ineffective for failing to request an instruction that the applicant did not want. The applicant alleges that trial counsel were ineffective by failing to object to the prosecutor’s argument that the applicant did not show remorse when the families of the victim testified. The statement about which the applicant complains was one comment in the middle of an argument that predominantly focused on the applicant’s actions on the night of the offense and the applicant’s prior convictions. The court concludes that the applicant has not satisfied the second prong of the Strickland test. OPINION:Price, J., delivered the opinion of the court, in which Keller, P.J., and Womack, Keasler, Hervey, Holcomb, and Cochran, JJ., joined. Meyers and Johnson, JJ., concurred in the result. Keller, P.J., filed a concurring opinion. Meyers, J., filed a concurring opinion. CONCURRENCE:Keller, P.J., filed a concurring opinion in which Cochran, J., joined. “The habeas court found that trial counsel’s most significant error was the invitation to comment on applicant’s post-arrest silence. The Court assumes without deciding that this conduct was deficient, but holds that applicant fails to show harm. I would, instead, hold that the conduct was not deficient.” CONCURRENCE:Meyers, J.; “I agree with the majority’s holding that the applicant was not denied effective assistance of counsel. I write separately to note that this claim could have been raised on direct appeal and thus the decision to consider the merits in this case conflicts with the recent holding in Ex Parte Townsend,137 S.W.3d 79, 81-2 (Tex. Crim. App. 2004), in which this Court stated, “when a defendant has an adequate remedy at law for his claim, he may not raise the claim in an application for a writ of habeas corpus.”

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