Shawn Lane Pope v. the State of Texas

NO. 12-22-00225-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

SHAWN LANE POPE, § APPEAL FROM THE 349TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
Shawn Lane Pope appeals his conviction for assault/family violence by impeding breath
or circulation. Appellant presents four issues on appeal. We affirm.

BACKGROUND
Appellant was charged by indictment with assault/family violence by impeding breath or
circulation. Appellant pleaded “not guilty,” and the matter proceeded to a jury trial. The jury
found Appellant “guilty” and sentenced him to three years confinement. Appellant filed a
motion for new trial, which was overruled by operation of law. This appeal followed.

SUFFICIENCY OF THE EVIDENCE
In his fourth issue, Appellant urges the evidence is insufficient to support his conviction.
Specifically, he argues the evidence fails to support that he impeded the victim’s breath.
Standard of Review
The Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010); see Jackson v. Virginia, 443 U.S. 307, 315-16, 99
S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979). The standard for reviewing a legal sufficiency
challenge is whether any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
We examine the evidence in the light most favorable to the verdict. See Jackson, 443
U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. The jury is the sole judge of the
witnesses’ credibility and the weight to be given to their testimony. Brooks, 323 S.W.3d at 899;
see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Penagraph v. State, 623 S.W.2d 341, 343
(Tex. Crim. App. [Panel Op.] 1981). We give full deference to the factfinder’s responsibility to
fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). If the record contains conflicting inferences, we must presume that the factfinder
resolved such facts in favor of the verdict and defer to that resolution. Brooks, 323 S.W.3d at
899 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Circumstantial evidence is as probative as direct evidence in establishing the accused’s
guilt. Hooper, 214 S.W.3d at 13. Each fact need not point directly and independently to the guilt
of the appellant, as long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction. See id. Juries are permitted to draw multiple reasonable
inferences as long as each inference is supported by the evidence presented at trial. Id. at 15.
Juries are not permitted to come to conclusions based on mere speculation or factually
unsupported inferences or presumptions. Id. An inference is a conclusion reached by
considering other facts and deducing a logical consequence from them, while speculation is mere
theorizing or guessing about the possible meaning of facts and evidence presented. Id. at 16.
The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant is tried.” Id.

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Applicable Law
To prove Appellant guilty of assault involving family violence by impeding breath or
circulation as charged in this case, the State was required to prove that Appellant (1) was or had
been in a dating relationship with the victim, and (2) intentionally, knowingly, or recklessly
impeded the victim’s normal breathing or blood circulation by applying pressure to her throat or
neck. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(B) (West Supp. 2022).
A person acts intentionally “when it is his conscious objective or desire to engage in the
conduct or cause the result[;]” a person acts knowingly “when he is aware of the nature of his
conduct or that the circumstances exist[;]” and a person acts recklessly “when he is aware of but
consciously disregards a substantial and unjustifiable risk that the circumstances exist or the
result will occur.” Id. § 6.03(a), (b), (c) (West 2021). Bodily injury is defined as “physical pain,
illness, or any impairment of physical condition.” Id. § 1.07(a)(8) (West 2021). The jury may
infer intent from circumstantial evidence, such as the defendant’s acts, words, and conduct.
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
A victim’s testimony alone can provide sufficient evidence to support a conviction of
felony assault of a family member by strangulation, and the evidence need not show that the
victim lost consciousness or was completely unable to breathe. See Marshall v. State, 479
S.W.3d 840, 845 (Tex. Crim. App. 2016). Thus, “any hindrance, obstruction, or impediment for
any amount of time to one’s breathing or blood flow is per se a bodily injury and therefore
sufficient to satisfy family-violence assault.” Philmon v. State, 609 S.W.3d 532, 537 (Tex.
Crim. App. 2020) (discussing the holding in Marshall and noting that “[t]his is an exceptionally
low bar”).
Analysis
On appeal, Appellant urges the evidence is insufficient to support the jury’s finding that
he choked the victim, Heather Pope. He maintains that his arm was around her chest, not her
neck or throat, and that the victim’s ability to scream negates a finding that her breath was
impeded.
Officer John Dougharty of the Palestine Police Department 1 testified that he responded to
a call of a potential assault on March 3, 2019. When he arrived, Appellant had his arms around

1
Officer Dougharty was employed by Humble Police Department at the time of trial; however, he was with
the Palestine Police Department at the time of the incident.

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Heather’s throat. According to Dougharty, Heather’s eyes appeared “glazed over, and she
wasn’t really focusing, where she may have been blacked out or may not have been aware of
what was going on.” Officers were able to remove Appellant’s arm from Heather’s neck, and
she then began screaming. The interaction was recorded on Dougharty’s body camera, and the
recording was admitted into evidence and published to the jury. Dougharty further testified that
Heather’s neck showed markings consistent with choking. Photographs of Heather’s injuries,
which included bruising on her neck, were also admitted into evidence. Dougharty opined that
based on his experience with assault cases, Heather’s injuries appeared consistent with being
choked. When interviewed, Appellant claimed he was not choking Heather but was “holding
her.”
Officer Aston Rodriguez also responded to the call with Dougharty. He testified that
when he arrived, Appellant had his arm around Heather’s throat. As soon as the officers
removed Appellant’s arm, Heather started to scream and “kind of freak out a little bit. Which it
appeared she wasn’t able to do that when he had his arm around her throat.” He testified that it
was as if “she couldn’t breathe or couldn’t get a sound out with her – with his arm around her
neck.” He estimated the amount of time that he observed Heather to be nonresponsive as twenty
to thirty seconds. Rodriguez further stated that because Heather did not scream until they were
able to pry away Appellant’s arm lead him to believe that “she had some kind of restricted
airway or something like that, or she might have been screaming from, you know, from the time
that he had his arm around her.”
Magan Melson, who has known Appellant and Heather for years, lived at the house
where the incident occurred. Magan testified that she called the police because she was “trying
to get [Appellant] off of Heather.” When she called 911, she told the dispatcher that the police
needed to arrive quickly or she was going to shoot Appellant. When asked about the specifics of
the incident, Magan testified that Appellant came to the house and spoke with Heather. Later,
the two went outside. Magan eventually went outside and saw Appellant with his arm around
Heather’s neck. However, she opined at trial that Appellant was not actually choking Heather.
Magan testified that Heather’s son thought Appellant was choking her and started hitting
Appellant in the face.
Heather testified that she was married to Appellant for twelve years and that while the
two are divorced, they remain “best friends.” They divorced in July 2019, approximately four

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months after the incident in question. In March 2019, Heather was staying with Magan and her
mother at their residence. On the evening in question, Appellant came over to help Heather pay
her portion of an electric bill that she owed the Melsons. While there, Appellant accused her of
using methamphetamine, which she admitted to using at the time. He also accused her of having
affairs. The two began arguing, and eventually went outside because Heather told Appellant it
was time for him to leave. She was “coming down” off methamphetamine and wanted to sleep.
According to Heather, Appellant hugged her and would not let go. When she attempted to scoot
down and turn around to extract herself, his arm ended up around her chest.
Dolan Robertson, Heather’s son, heard her asking Appellant to let her go and came
outside. Robertson asked Appellant to release Heather. After Appellant repeatedly refused,
Robertson “took a flying leap off the stairs onto the sidewalk and landed to his face with a flying
punch and commenced to beat him until the police got there.” Appellant continued to hold onto
Heather even during the beating.
At trial, Heather testified that she did not recall telling the police that Appellant’s “hug”
was “holding onto [her] really tight.” She claimed to not remember telling the officers that
Appellant told her, “You are going to have to stop lying to me you stupid fucking bitch.”
Heather did not seem to remember anything she told officers about the events of the evening or
being examined by medical personnel. Heather admitted that when she was trying to get away
from Appellant, “it felt like he was choking [her].” However, she claimed that after she “sobered
up” and had time to reflect, she concluded he was not actually choking her. Heather testified she
screamed while Appellant held her, as she “was scared because he would not listen to [her].”
She claimed that she was able to breathe throughout the entire ordeal. She further testified that
the neck bruising in the photographs was not from the evening in question or Appellant’s actions.
The EMS records of Heather’s injuries were also admitted into evidence. According to
those records, Heather told EMS personnel that “she was choked.” She also had pain and
tenderness to her neck, head, and face.
Robertson testified that Appellant is his stepfather, and he has known him for more than
ten years. Robertson did not remember what happened on the night of the incident because he
was so aggravated that he “may have blacked out” and only remembered “flashes of the scene.”
Robertson testified that prior to his testimony, he received a text message from Appellant’s sister
stating, “If you fuck [Appellant] over in court, then don’t ever speak to me again, ever.” He

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responded, “Actually, I beat his bitch ass up with my hands for touching my mother.” He also
told her, “This is an inappropriate conversation, because we’re not supposed to be talking
anymore.” He admitted that on the night in question, he felt it was necessary to punch Appellant
and to point a gun at him to keep his mother safe.
Keithan Melson, Magan’s son, testified that Appellant and Heather hugged inside the
house, but subsequently began arguing and went outside. While outside, Keithan observed
Appellant switch from a forward hug to a “backwards hug,” in which Appellant’s arms were
around Heather’s neck. He also heard Heather screaming and hollering.
James Pope, Appellant’s father, testified during Appellant’s case-in-chief. On the
evening in question, James drove Appellant to where Heather was staying. Appellant went
inside the house to give Heather some money, and James stayed in the parked truck. After
approximately twenty minutes, Appellant exited the house and Magan was yelling at him. James
testified that Heather appeared upset and Robertson was carrying a gun. He claimed Heather
jumped on Appellant from behind, and Appellant then grabbed her and put her on the ground.
Then Robertson hit Appellant on the head with the butt of the gun. Appellant had his arm
around Heather’s chest telling her to “calm down.” According to James, Heather was crying and
talking, but did not appear to be struggling or fighting.
Appellant also testified on his own behalf. According to Appellant, his father drove him
to Heather’s after work. He claims he spent several hours talking with Heather and Magan’s
mother acted as a mediator. As Appellant left, he gave Heather a hug and said something that
“set her off.” According to Appellant, Heather started throwing a fit, and then Magan said it was
time for him to leave. When they went outside, he “said something that set her off again. And
that’s when [Robertson] came back out and commenced to hitting me.” Appellant claimed his
arm was around Heather’s chest, not her neck. He further testified that he did not attempt to cut
off the circulation of her breath or blood. He acknowledged being able to see why someone may
have thought he was choking her at the time, but that such perception would be a
misunderstanding.
From the evidence presented, the jury reasonably could have determined that Appellant
choked Heather by putting his arm around her neck, and that as a result, Heather was unable to
breathe. In fact, the jury heard evidence that Heather suffered injuries as a result of Appellant’s
actions, including visible bruising. As sole judge of the weight and credibility of the evidence,

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the jury bore the burden of resolving any conflicts in the evidence and deciding the credibility of
the witnesses’ testimony. See Brooks, 323 S.W.3d at 899; see also Hooper, 214 S.W.3d at 13.
In doing so, the jury was entitled to believe the officers’ testimony that Heather appeared unable
to breathe, and suffered injuries to her neck, as a result of being choked by Appellant. See
Losoya v. State, No. 07-17-000061-CR, 2018 WL 5094001, at *3 (Tex. App.—Amarillo Oct. 18,
2018, no pet) (mem. op., not designated for publication); Hennard v. State, No. 10-14-00324-
CR, 2015 WL 5474796, at *3 (Tex. App.—Waco Sept. 17, 2015, no pet.) (mem. op., not
designated for publication); see also Brooks, 323 S.W.3d at 899; see also Hooper, 214 S.W.3d at
13. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational
jury could have found each element of assault-family violence by impeding breath or circulation
beyond a reasonable doubt. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(A)-(B). We
overrule Appellant’s fourth issue.

HEARING ON MOTION FOR NEW TRIAL
In his first issue, Appellant contends that the trial court improperly denied a hearing on
his motion for new trial.
A defendant has a right to move for a new trial. See TEX. R. APP. P. 21; Drew v. State,
743 S.W.2d 207, 223 (Tex. Crim. App. 1987); Cooks v. State, 190 S.W.3d 84, 86–87 (Tex.
App.—Houston [1st Dist.] 2005), aff’d, 240 S.W.3d 906 (Tex. Crim. App. 2007). A criminal
defendant does not, however, have an “absolute right” to a hearing on his motion for new trial.
Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). We review the denial of a hearing
on a motion for new trial for an abuse of discretion and will reverse only if the trial court’s ruling
falls outside the zone of reasonable disagreement. Smith v. State, 286 S.W.3d 333, 339 (Tex.
Crim. App. 2009). The failure to hear the motion constitutes an abuse of discretion only if the
motion and accompanying affidavits (1) raise matters which are not determinable from the
record, and (2) establish reasonable grounds showing that the defendant could potentially be
entitled to relief. Id. at 338–39.
The defendant must support the motion for new trial with one or more affidavits that set
forth the factual basis for the relief sought. Id.; see Wallace v. State, 106 S.W.3d 103, 108 (Tex.
Crim. App. 2003). The defendant need not establish a prima facie case for a new trial; a hearing
on the motion for new trial is warranted if the motion raises fact issues showing that reasonable

7
grounds exist for granting a new trial. Wallace, 106 S.W.3d at 107–08; see TEX. CODE CRIM.
PROC. ANN. art. 40.001 (West 2018); Hobbs, 298 S.W.3d at 201–02. The hearing’s purpose is to
give the defendant an opportunity to fully develop the issues raised in his motion (1) so that the
trial court can decide whether the case should be retried and (2) to prepare a record for
presenting issues on appeal if relief is denied. Smith, 286 S.W.3d at 338.
The issue is preserved by a timely filed and presented motion for new trial that requests a
hearing. See Rozell v. State, 176 S.W.3d 228, 230–31 (Tex. Crim. App. 2005) (issue of trial
court’s failure to hold hearing on motion for new trial not preserved where motion for new trial
did not request a hearing). Once a defendant has done that, he has told the trial court what he
wants at a time when the trial court is in a position to do something about it. See Pena v. State,
285 S.W.3d 459, 464 (Tex. Crim. App. 2009); see also Rozell, 176 S.W.3d at 230 (“Presenting
the motion, along with a request for a hearing, is required to let the court know that the defendant
wants the trial court to act on the motion and whether the defendant would like a hearing on the
motion.”).
Appellant’s motion for new trial contains conclusory allegations of deficient performance
by his trial attorney. Neither the motion nor the supporting affidavit contains any specific facts
explaining how Appellant’s trial attorney was ineffective. While an ineffective assistance of
counsel claim can justify a hearing on a motion for new trial, the affidavit and motion must
create a fact question warranting such a hearing. See Montelongo v. State, 631 S.W.3d 734, 738
(Tex. App.—El Paso 2021, no pet.). Affidavits that are conclusory in nature and unsupported by
facts do not provide the requisite notice and no hearing is required. Smith, 286 S.W.3d at 339;
Griswold v. State, No. 05-19-01561-CR, 2023 WL 4881390, at *8 (Tex. App.—Dallas Aug. 1,
2023, no pet. h.). As a result, the trial court did not err in declining to conduct a hearing on
Appellant’s motion for new trial. We overrule Appellant’s first issue.

INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue, Appellant urges he received ineffective assistance of counsel at trial.
Standard of Review and Applicable Law
In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).

8
Under the first prong of the Strickland test, an appellant must show that counsel’s performance
was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). “This requires showing 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. To be successful, an appellant
must “show that counsel’s representation fell below an objective standard of reasonableness.”
Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
Under the second prong, an appellant must show that the “deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at
712. The appropriate standard for judging prejudice requires an appellant to “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; Tong, 25 S.W.3d at
712. The appellant must prove that his attorney’s errors, judged by the totality of the
representation and not by isolated instances of error, denied him a fair trial. Burruss v. State, 20
S.W.3d 179, 186 (Tex. App.—Texarkana 2000, pet. ref'd).
It is not enough for the appellant to show that the errors had some conceivable effect on
the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but
for his attorney’s errors, the jury would have had a reasonable doubt about his guilt or that the
extent of his punishment would have been less. See id.; see also Bone v. State, 77 S.W.3d 828,
837 (Tex. Crim. App. 2002). A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at
712. An appellant claiming ineffective assistance of counsel must affirmatively prove prejudice
from counsel’s deficient performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App.
1999).
Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712.
“We engage in a ‘strong presumption’ that counsel’s actions fell within the wide range of
reasonably professional assistance.” Id (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2052.)
It is a defendant’s burden to overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Id. Moreover, any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

9
App. 1999). “[T]rial 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). Absent an opportunity for counsel to explain his actions, an appellate court should
not find deficient performance unless the challenged conduct 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). Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the claim of ineffective assistance. Thompson, 9 S.W.3d at 813.
Discussion
Appellant contends his trial counsel was deficient by failing to object to the indictment.
According to Appellant, the indictment fails to appropriately plead recklessness. He argues that
by alleging he acted “recklessly,” the State was required to allege in the indictment the acts it
would rely upon to prove such recklessness. See TEX. CODE CRIM. PROC. ANN. art. 21.15 (West
2009). However, the indictment states that Appellant “intentionally, knowingly, or recklessly
cause[d] bodily injury to Heather Pope . . .” An indictment that alleges a defendant acted
recklessly is not insufficient if it fails to allege the act or acts relied upon to constitute
recklessness if the indictment also alleges the defendant acted intentionally and/or knowingly.
State v. Castorena, 486 S.W.3d 630, 635 (Tex. App.—San Antonio 2016, no pet.); Crawford v.
State, 646 S.W.2d 936, 937 (Tex. Crim. App. 1983). Thus, the indictment was not defective, and
Appellant’s trial counsel was not ineffective for failing to object.
Appellant further urges that trial counsel was ineffective in “failing to raise lack of
capacity to negate elements of the charged offense.” He urges that multiple witnesses testified
that Appellant may have suffered a concussion either from tripping over bicycles or being hit in
the head with the butt of a gun. According to Appellant, trial counsel was deficient for failing to
investigate and raise the issue of lack of capacity.
But the record does not support Appellant’s claim that trial counsel failed to conduct
some investigation into Appellant’s mental capacity. See Richardson v. State, 606 S.W.3d 375,
382–83 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd) (observing that, while “no reasonable
trial attorney would wholly fail to investigate the facts of a case,” record did not show that
counsel was unaware of evidence against appellant, and thus, appellant could not prove
ineffective assistance claim). Furthermore, Appellant has not identified any particular
information that further investigation would have revealed. Thus, Appellant’s allegations that

10
further investigation could have uncovered more relevant information concerning his mental
capacity are purely speculative and do not support a conclusion that trial counsel’s investigation
was unreasonable under the circumstances. See Andrus v. Tex., 140 S. Ct. 1875, 1881, 207 L.
Ed. 2d 335 (2020) (“In any ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.”); Cain v. State, 525 S.W.3d 728, 732 (Tex. App.—Houston
[14th Dist.] 2017, pet. ref'd) (holding counsel’s alleged failure to object to required PSI
evaluations for mental health and substance abuse issues did not support ineffective assistance
claim on direct appeal given silent record as to reasons for failure to object, also rejected
argument that no strategy could support failure to object, and finally concluded that defendant
failed to meet prejudice prong); Castello v. State, 555 S.W.3d 612, 618-19 (Tex. App.—Houston
[1st Dist.] 2018, pet. ref’d) (same).
In summary, the record in this direct appeal fails to support that counsel had no potential
viable trial strategy sufficient to overcome the presumption of competent and adequate assistance
in the exercise of reasonable professional judgment. See Lopez v. State, 343 S.W.3d 137, 142-43
(Tex. Crim. App. 2011) (stating that “court must not engage in retrospective speculation” and
that “[i]t is not sufficient that appellant show, with the benefit of hindsight, that his counsel’s
actions or omissions during trial were merely of questionable competence”). Thus, we hold that
the record contains no evidence to rebut the presumption that, based on the totality of the
representation, trial counsel performed competently. See Lopez, 343 S.W.3d at 142-43; Mata v.
State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007); Thompson, 9 S.W.3d at 81. Furthermore,
we hold that, from the record before us, even if counsel’s performance was deemed deficient, the
evidence reflects no reasonable probability that the result would have been different but for the
deficiency. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712.
Appellant’s third issue is overruled.

ADDITIONAL DISCOVERY
In his second issue, Appellant contends the trial court abused its discretion in denying his
request for additional appellate discovery.
Appellant’s appointed appellate counsel filed a motion for discovery under Article 39.14
of the Texas Code of Criminal Procedure. In his motion, he requested all evidence in the State’s

11
possession. When the State refused, Appellant filed a motion to compel. At the hearing on the
motion to compel, Appellant’s counsel stated that he wanted all evidence in the State’s
possession used to convict Appellant. The State argued that it tendered all evidence to
Appellant’s trial counsel and, as a result, it complied with its duty to provide evidence under
Article 39.14. At the conclusion of the hearing, the trial court granted the motion to compel in
part and ordered the State to turn over any and all exculpatory evidence. It denied the motion to
compel regarding pretrial matters and material that was previously given to trial counsel.
Article 39.14 disclosure requirements are triggered only after the State receives a timely
request from the defendant. Glover v. State, 496 S.W.3d 812, 815 (Tex. App.—Houston [14th
Dist.] 2016, pet. ref’d). Absent a discovery request, the State’s affirmative duty to disclose
evidence extends only to exculpatory information. See TEX. CODE CRIM. PROC. ANN. art.
39.14(h) (West Supp. 2022) (“Notwithstanding any other provision of this article, the state shall
disclose to the defendant any exculpatory, impeachment or mitigating document, item or
information ... that tends to negate the guilt of the defendant or would tend to reduce the
punishment for the offense charged”). However, the current version of Article 39.14 removes
procedural hurdles to obtaining discovery, broadens the categories of discoverable evidence, and
expands the State’s obligation to disclose. Watkins v. State, 619 S.W.3d 265, 278 (Tex. Crim.
App. 2021). Further, the State’s new, broader obligations apply prior to trial, continue after
conviction, and must be complied with quickly. Id. Even so, the duty following conviction only
applies to newly discovered evidence regarding exculpatory circumstances. TEX. CODE CRIM.
PROC. ANN. art. 39.14(k). Thus, the trial court was not required to compel the State to produce
evidence post-conviction, outside of newly discovered evidence.
Furthermore, to the extent Appellant’s complaint relates to the disclosure of information
already known to Appellant, the State has no affirmative duty to disclose such information.
Garcia v. State, No. 13-15-00527-CR, 2017 WL 3530926, at *3 (Tex. App.—Corpus Christi
Aug. 17, 2017, no pet.) (mem. op., not designated for publication); see Hayes v. State, 85
S.W.3d 809, 815 (Tex. Crim. App. 2002) (explaining that State had no duty to disclose existence
of letter written by the defendant); Havard v. State, 800 S.W.2d 195, 204 (Tex. Crim. App.
1989) (concluding that State had no duty to disclose existence of the defendant’s own statement
to law enforcement contained in an offense report).

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Because Appellant had already obtained the discovery via his trial counsel and because
the State was under no duty to disclose evidence post-conviction, aside from newly discovered
evidence, the trial court did not abuse its discretion in partially denying the motion to compel.
We overrule Appellant’s second issue.

DISPOSITION
Having overruled Appellant’s four issues, we affirm the trial court’s judgment.

GREG NEELEY
Justice
Opinion delivered September 20, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 20, 2023

NO. 12-22-00225-CR

SHAWN LANE POPE,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 349th District Court
of Anderson County, Texas (Tr.Ct.No. 349CR-19-34162)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.