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Click here for the full text of this decision FACTS:Brodgerick Tredon Ellis was a passenger in a truck driven by Kedrian Davis. A Rockwall County deputy stopped Davis for failure to display a front license plate and failure to maintain a single lane of traffic. The deputy testified that when he pulled the truck over, Ellis became immediately “confrontational” and “aggressive.” The deputy asked Davis to step out of the truck and questioned him about their travel. The deputy then asked Ellis to get out of the truck, asked him the same question and received an answer that was inconsistent with Davis’ statement. The deputy checked the ownership of the truck and discovered that it was not registered to either Davis or Ellis. When the prosecutor asked the deputy if he looked for “specific clues or red flags” during a traffic stop that indicate “that certain criminal activity may be taking place[,]” the deputy stated “ nervousness is a big one [and] [t]hird party owner[ship of] a vehicle.” Explaining why third-party ownership is important to trafficking drugs, the deputy stated that “if they’re caught with narcotics and they own the vehicle outright, we can seize the vehicle from them. So a lot of times they’ll rent a car or be in someone else’s car so we can’t take it from them.” The deputy requested and received consent from Davis to search the truck. The deputy searched the truck and found what he described as two “cookies,” each in a separate plastic bag in the middle of the cab behind the front seats. The deputy testified that neither Davis nor Ellis showed any shock or surprise when he discovered the substance and performed a field test, which indicated that the “cookies” were cocaine. When the deputy asked Davis if he knew anything about the cocaine, Davis replied that “one of his hoes must have put it there.” And when the deputy asked Ellis the same question, Ellis stated that “he didn’t know anything about it.” Donahoe testified that when he searched Ellis and Davis, he discovered a large amount of cash on Davis and $26 on Ellis. When the defense attorney began his cross-examination of the deputy, he immediately referred to the deputy’s report from the traffic stop. He then offered the report into evidence. The prosecutor noted that the report was inadmissible, stating “an offense report is not admissible, but we’ll let it in. We have no objection.” The trial judge admitted the report into evidence. The defense attorney then cross-examined the deputy by referencing specific parts of the report. The attorney referred to the part of the report in which Davis admitted to the deputy that he was on probation for possession of marijuana. Using the report on redirect, the state was able to elicit testimony about Ellis’ criminal history. Just days before Ellis’ trial, Davis entered into a plea agreement with the state. The plea agreement provided that Davis would plead guilty to possessing part of the cocaine seized by the deputy and testify truthfully against Ellis and that the state, in exchange, would recommend three years of imprisonment and a fine of $1,000. The agreement further provided that Davis would be subject to an aggravated perjury charge if he did not testify truthfully. At Ellis’ trial, on direct examination by the prosecutor, Davis admitted that he accepted the plea agreement and testified about its terms. Davis also linked Ellis to one of the cocaine “cookies” found in the truck. Davis testified that it was Ellis’ idea to go to Dallas and purchase cocaine and that Ellis had arranged the purchase. Davis stated that he borrowed the truck and offered to drive, because Ellis “had stitches in his leg.” According to Davis, each of them purchased a “cookie” and then placed them together in the truck between the driver and passenger seats before heading back to Paris, Texas. The jury convicted Ellis of possession of a controlled substance in an amount of 4 grams or more but less than 200 grams, and the trial judge sentenced him to 15 years of confinement. Ellis appealed, arguing that “his conviction was improperly based on uncorroborated accomplice witness testimony” and “the trial court erred in failing to grant a mistrial due to the prosecutor’s comment on [Ellis'] failure to testify.” Finding no merit to either argument, the 5th Court of Appeals affirmed the trial court’s judgment. Ellis filed an application for a writ of habeas corpus alleging, among other things, that his trial counsel rendered ineffective assistance. HOLDING:The court denied the petition for habeas corpus relief. Ellis claimed in his second ground for review that his trial attorney’s decision to introduce the police report alone denied him effective assistance of counsel, because it allowed the jury to hear about his conviction for robbery and a murder charge, both of which otherwise would have been inadmissible. Ellis also pointed to several additional specific instances of alleged deficient conduct by his trial attorney, which he asserted cumulatively prejudiced his defense. On remand, the trial judge held an evidentiary hearing at which Ellis’ trial attorney testified. The attorney explained that he did not have a perfect recollection of Ellis’ case, primarily because he had been undergoing treatment for cancer. But the attorney attempted to answer most of Ellis’ allegations of ineffective assistance. Regarding the introduction of the police report, the attorney explained that he intended to use the report to impeach the testimony of Davis “relative to [Ellis] having possessed drugs, having had anything to do with drugs.” He also testified that he intended to show that Ellis’ “history was one of robbery. He had been convicted of robbery. He had served his time. He had made parole early. And to me, that’s an argument that he has been to a degree an exemplary person[.]“ Moreover, the attorney stated that he wanted to show the jury that “there’s nothing to connect [Ellis] or tie him to these drugs except the testimony of Mr. Davis who had cut a deal” and that Ellis had been honest with the police at the scene by revealing his robbery conviction. He claimed that, short of Ellis testifying which he declined to do the attorney knew of no way to impeach Davis other than by using the police report. After the hearing, the trial judge entered the following relevant findings of fact: “The [police] report, including the prior conviction[,] was offered into evidence by defense counsel and admitted without objection. As such, there is no legal impediment to the admission of Applicant’s prior conviction. “Defense counsel utilized the police report both on cross examination and in closing argument to impeach the credibility of co-actor, Kedrian Davis. Defense counsel further utilized the report to establish that his client (Applicant) had been honest with the arresting officer by admitting that he was on parole for robbery, that he was an exemplary parolee, and to show that although his client had a criminal history, he had no such history for drug offenses. “It appears from the record at trial as well as from defense counsel’s testimony at the . . . hearing that the police report was intentionally offered into evidence as part of a trial strategy to impeach the State’s witness, Kedrian Davis, and to bolster Applicant’s credibility.” The trial judge also entered conclusions of law. Relevant to Ellis’ claim concerning the admission of the police report, the trial court concluded: “Defense counsel’s decision to introduce the police report[,] which resulted in the publication of Applicant’s criminal history to the jury[,] was part of an intentional strategy to impeach the State’s primary witness, accomplice Kedrian Davis[,] and to bolster the credibility of the Defendant. While such strategy is perhaps subject to question and could have conceivably caused some degree of prejudice to [Ellis], there was at least a reasonable basis and explanation for employing the strategy.” The trial judge continued: “Defense counsel’s overall conduct at trial[] was consistent with and did not fall below the standard of reasonable legal representation.” After reviewing the record, the CCA filed and set Ellis’ application for a writ of habeas corpus to determine whether Ellis’ trial counsel rendered ineffective assistance. Under the Strickland framework, the CCA stated that Ellis had to prove by a preponderance of the evidence that his counsel’s performance was deficient and there was a reasonable probability � one sufficient to undermine confidence in the result � that the outcome would have been different but for his counsel’s deficient performance. The CCA concluded that the trial attorney’s decision to offer the deputy’s report was based on a sound trial strategy. The attorney’s strategy, as executed, was designed to persuade the jury that all of the cocaine belonged to Davis. And although the means adopted by counsel were risky, the CCA found that the attorney’s tactics could have achieved the desired result: an acquittal for Ellis. Therefore, the CCA agreed with the trial judge and held that Ellis did not show that the attorney’s performance was deficient as contemplated by the first Strickland prong. Thus, the court agreed with the trial judge’s conclusion and held that Ellis was not denied effective assistance of counsel at trial. OPINION: Keasler, J., delivered the opinion for a unanimous court.

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