Spencer, Breanna

PD-0392-15 PD-0392&0393-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/22/2015 10:55:21 AM Accepted 4/23/2015 9:38:59 AM ABEL ACOSTA MICHEAL B. MURRAY CLERK DISTRICT ATTORNEY 35TH JUDICIAL DISTRICT OF TEXAS BROWN AND MILLS COUNTIES

CHRIS BROWN 200 S. BROADWAY, COURTHOUSE FIRST ASSISTANT DISTRICT ATTORNEY BROWNWOOD, TEXAS 76801 (325) 646-0444 FAX: (325) 643-4053 ELISHA BIRD ASSISTANT DISTRICT ATTORNEY

J. CHRISTINA NELSON ASSISTANT DISTRICT ATTORNEY

April 23, 2015

April 22, 2015

The Court of Criminal Appeals Supreme Court Building 201 West 14th Street, Room 106 Austin, Texas 78701

Re: Breanna Spencer, PD 0392-15 & PD 0393-15, 11-13-00007-CR & 11-13-00008-CR

To the Honorable Court of Criminal Appeals:

The State has received Breanna Spencer’s Petition for Discretionary Review. In lieu of filing a formal response to the Petition for Discretionary Review, the State would simply ask this Court to refuse to review this case for the following reasons. First, Petitioner has not alleged a reason for review that appropriately represents the decision by the Eleventh Court of Appeals. Petitioner’s question presented for review claims that there was no strategic motivation for trial counsel’s failure to object to the State’s closing argument. See Applicant’s Petition for Discretionary Review, p. 3. However, the Eleventh Court of Appeals held that the State’s closing argument was proper and therefore failure to object cannot constitute deficient performance by Applicant’s trial counsel. Spencer v. State, Nos. 11-13-00007-CR and 11-13-00008-CR, 2015 WL 1089813, at *7 (Tex. App.—Eastland Mar. 5, 2015, pet. filed). Petitioner has not alleged any ground for reviewing the Eleventh Court of Appeals’ decision that the State’s closing argument was proper. Absent a decision to reverse the court of appeals ruling on the appropriateness of the State’s closing argument, there is no issue of ineffective assistance available for Petitioner to have reviewed. Counsel cannot be held ineffective for failing to object to proper closing argument. Additionally, Petitioner has failed to provide an appropriate reason for review under Rule 66.3 of the Texas Rules of Appellate Procedure. The court of appeals did not decide an important question of state or federal law in a manner that would conflict with applicable decisions of this Court. As this Court is aware, refusal of a petition for discretionary review does not constitute

endorsement or adoption of the reasoning employed by the court of appeals. Aguilar v. State, 830 S.W.2d 612, 613 (Tex. Crim. App. 1992) (en banc). Should this Court choose to grant review, the State requests notice and time to respond to the merits of the claims presented by Petitioner.

Sincerely yours,

/s/ Elisha Bird Assistant District Attorney

cc: Stan Brown, attorney for Petitioner, mstrb@aol.com