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Click here for the full text of this decision FACTS:On Dec. 2, 2004, the state indicted Gary Wayne Hale Jr. for two counts of aggravated sexual assault of a child. On Dec. 8, 2004, authorities arrested Hale for the offenses. On Dec. 9, 2004, authorities took Hale before a magistrate, who administered a warning to Hale prescribed by Texas Code of Criminal Procedure Art. 15.17. Hale requested a court-appointed attorney in writing on the magistrate’s warning form. Scott Martin, an investigator with the Brown County Sheriff’s Department, was the sole witness at the hearing on Hale’s later motion to suppress certain DNA evidence. Martin testified that on Dec. 10, 2004, he spoke with Hale at the Brown County Jail. Martin said that he requested Hale’s consent to take a saliva sample for DNA testing and that Hale consented to the taking of the sample. Martin said that he obtained a saliva sample from Hale after receiving Hale’s consent. Martin also testified that, on Dec. 10, 2004, he was unaware of Hale’s earlier request for a court-appointed attorney. The trial court denied the motion to suppress. The jury convicted Hale of two counts of aggravated sexual assault of a child and assessed punishment at 60 years of confinement for each count. The trial court sentenced Hale accordingly and ordered that the sentences run concurrently. On appeal, Hale argued that the trial court erred in denying his motion to suppress, because the state obtained his DNA sample in violation of his right to counsel under the Sixth Amendment of the U.S. Constitution. Hale also argued that his trial counsel rendered ineffective assistance of counsel by failing to present a DNA expert witness. HOLDING:Affirmed. The Sixth Amendment, the court stated, guarantees a criminal defendant the assistance of counsel at the initiation of adversary proceedings against him and at any subsequent “critical stage” of the proceedings. A particular pretrial stage is critical, the court stated, only if the accused requires aid in coping with legal problems or assistance in meeting his adversary. The court noted 1967′s United States v. Wade, which held that preparatory steps in the gathering of the prosecution’s evidence, such as analyzing an accused’s fingerprints, blood samples, clothing, hair and the like, are not “critical stages” at which an accused has the right to presence of counsel. The taking of Hale’s saliva sample for DNA testing was not a critical stage of the proceedings, the court stated; therefore, the state did not deny Hale his right to counsel when it obtained the saliva sample. Thus, the trial court did not err in denying Hale’s motion to suppress. Next, in determining whether Hale’s trial counsel rendered ineffective assistance at trial, the court examined whether Hale demonstrated that his attorney’s representation fell below an objective standard of reasonableness and that the result “would have been different but for counsel’s errors.” The record, the court stated, was silent as to why Hale’s trial attorney chose not to present a DNA expert witness. Hale did not raise his ineffective-assistance-of-counsel claim in a motion for new trial nor did he present any evidence in support of his claim to the trial court. When a record is silent as to trial counsel’s strategy, the court stated that it would not conclude the challenged conduct constituted deficient performance “unless the conduct was so outrageous that no competent attorney would have engaged in it.” Hale’s case did not satisfy this threshold, the court stated. Thus, the court held that the record did not demonstrate that Hale’s trial counsel’s representation fell below an objective standard of reasonableness. OPINION:McCall, J.; Wright, C.J., McCall and Strange, J.J.

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