Opinion
05-23-00548-CR
05-17-2024
DOMINIQUE LASHAWN ASHLEY, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(B)
On Appeal from the 354th Judicial District Court Hunt County, Texas Trial Court Cause No. 34336CR
Before Reichek, Goldstein, and Garcia JusticesMEMORANDUM OPINION
DENNISE GARCIA, JUSTICE
Appellant pleaded guilty to manufacture and delivery of a controlled substance and true to an enhancement. A jury assessed punishment at thirty-five years in prison. In a single issue, she now argues trial counsel was ineffective because he failed to object and request a supplemental charge in response to a question from the jury. Concluding appellant's argument is without merit, we affirm the trial court's judgment.
I. Background
Both parties presented evidence at the punishment phase and appellant testified on her own behalf. After the evidence closed, the court charge instructed the jury, in pertinent part:
The defendant has entered a plea of guilty to the offense of Delivery of a Controlled Substance Namely: Cocaine, Four Grams or More but Less Than Two Hundred Grams. She has persisted in entering her plea of guilty, notwithstanding that the Court, as required by law, has admonished her of the consequences. It plainly appearing to the Court that the defendant is mentally competent, and that she makes this plea freely and voluntarily, her plea is received by the Court. You are instructed to find the defendant guilty as charged ....
Because the defendant has pled "true" to the enhancement paragraph you will assess the punishment of the defendant at confinement in the Texas Department of Criminal Justice for not less than fifteen (15) years nor more than ninety-nine (99) years or life. In addition thereto, you may assess a fine in any amount not to exceed $10,000.
During deliberations, the jury sent three notes to the trial court. Appellant's complaint is based on the second note, which read:
Did the baby Mama phone number match the defendant's mom's number; and who was it that the defendant asked for pills while pregnant and what did the guilty party-the guilty plea buy her, a less time?
The trial court responded with a note that said:
The Court, under the law, is not permitted to answer the questions you have presented. Please consider the instructions you have been given and continue your deliberations.
The jury resumed deliberations, and after sending the court another note on a different topic, assessed punishment at thirty-five years in prison. This timely appeal followed.
II. Analysis
Appellant's sole issue argues trial counsel was ineffective because he failed to object to the trial court's response to the jury's second question and failed to request a supplemental instruction.
The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const. amend. VI. To establish ineffective assistance, an appellant must prove by a preponderance of the evidence that his counsel's representation was deficient, and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 280, 307 (Tex. Crim. App. 2013). The record must affirmatively demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999), and both Strickland elements must be "firmly rooted in the record." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). A reviewing court need not address both deficiency and prejudice if the appellant makes an insufficient showing on one component, nor must a reviewing court address deficiency and prejudice in any particular order. Strickland, 466 U.S. at 697.
In evaluating counsel's effectiveness under the deficient-performance prong, we review the totality of the representation and the particular circumstances of the case to determine whether counsel provided reasonable assistance under all the circumstances and prevailing professional norms at the time of the alleged error. See id. at 688-89; Nava, 415 S.W.3d at 307; Thompson, 9 S.W.3d at 813-14. An appellate court may not infer ineffective assistance simply from an unclear record or a record that does not show why counsel failed to do something. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Our review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct was not deficient. Nava, 415 S.W.3d at 307-08. Under this presumption, an ineffective assistance of counsel claim is a high hill to traverse via direct appeal "because the record is generally undeveloped." Goodspeed, 187 S.W.3d at 392; Menefield, 363 S.W.3d at 592-93; Thompson, 9 S.W.3d at 813-14.
Trial counsel "should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Menefield, 363 S.W.3d at 593. If trial counsel did not have that opportunity, we should not conclude that counsel performed deficiently unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Nava, 415 S.W.3d at 308.
Appellant argues counsel should have requested a supplemental charge concerning the guilty plea because the jury should have been instructed that they could consider her guilty plea in reaching a verdict.
Appellant relies on the portion of TEX. CODE CRIM. PROC. ANN. ART. 36.16 That provides" . . . no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury ...." See TEX. CODE CRIM. PROC. ANN. ART. 36.16 (EMPHASIS ADDED). The decision to issue a supplemental charge, however, is discretionary. See Morales v. State, No . 08-06-00067-CR, 2009 WL 223446, at *8 (Tex. App.-El Paso Jan. 30, 2009, pet. ref'd) (mem. op., not designated for publication).
When an appellant alleges deficient performance based on his counsel's failure to object, he must show the trial court would have erred by overruling that objection. See Prine v. State, 537 S.W.3d 113, 117-18 (Tex. Crim. App. 2017). Appellant has failed to demonstrate she was entitled to an instruction. See Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999) (deficient performance based on failure to request a defensive instruction requires showing that defendant was entitled to the instruction).
Moreover, failure to object can be a strategic move that is part of a sound trial strategy. See Stafford v. State, 813 S.W.2d 503, 508 (Tex. Crim. App. 1991). In the present case, the record is silent as to counsel's reason(s) for not objecting or requesting a supplemental instruction. Appellant did not raise this issue in her motion for new trial and there is no evidence in the record regarding counsel's decisions.
Appellant filed a motion for new trial alleging, inter alia, that counsel's performance was deficient because he failed to call certain witnesses and present mitigating evidence. There was no hearing on the motion.
On this record, we cannot conclude that appellant has demonstrated that trial counsel's conduct was so outrageous that no competent attorney would have engaged in such conduct. See Nava, 415 S.W.3d at 308. Accordingly, appellant has failed to rebut the strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Appellant's sole issue is resolved against her, and the trial court's judgment is affirmed.
JUDGMENT
Justices Reichek and Goldstein participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.