Duckworth v. State

32 Citing cases

  1. Bryant v. State

    Nos. 05-07-00324-CR, 05-07-00325-CR (Tex. App. Apr. 28, 2008)

    Effectiveness of Counsel In his fourth point of error, Bryant asserts he was denied effective assistance of counsel during both the guilt and punishment phases of the adjudication hearing. Recognizing again that his claim arising from the guilt phase is prohibited, Bryant conditions this complaint also "on the premise that [former article 42.12, section 5(b)] is unconstitutional." But, as we have stated, we have overruled Bryant's constitutional claim and thus, to the extent he challenges the effectiveness of his counsel at the guilt phase, we dismiss this complaint. To the extent Bryant challenges the effectiveness of his counsel at the punishment phase, we conclude Bryant has failed to show counsel was in fact ineffective. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Duckworth v. State, 89 S.W.3d 747, 751 (Tex.App.-Dallas 2002, no pet.). To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence deficient performance and prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999). To establish deficient performance, the appellant must show that counsel's actions fell below "prevailing professional norms." See Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). To establish prejudice, the appellant must show a reasonable probability that the trial's result would have been different but for counsel's deficient performance. Id. Failure to make the required showing of either deficient performance or prejudice defeats the ineffectiveness claim. Dewberry v. State, 4 S.W.3d 735, 757 (Tex.Crim.App. 1999). In determining whether counsel provided effective assistance, we look to the totality of the representation and strongly presume counsel's competence. Thompson, 9 S.W.3d at 813. We do not judge counsel's trial decisions in hindsight and will find cou

  2. Calloway v. State

    Nos. 05-03-00927-CR, 05-03-00928-CR (Tex. App. Sep. 15, 2005)

    Assistance of Trial Counsel In his pro se response, appellant contends he received ineffective assistance of counsel during the 2003 revocation/adjudication hearing because trial counsel was not prepared for the hearing. Appellant points to counsel's statement on the record that appellant's family had hired counsel to represent him only a few days before the hearing. Initially, we note that a defendant may not appeal the trial court's determination to proceed with adjudication of guilt. See Tex. Code Crim. Proc. Ann. Art. 42.12 § 5(b) (Vernon Supp. 2004-05); Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999). We do have jurisdiction to consider issues arising from proceedings after adjudication. See Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001). Accordingly, in appellant's manslaughter case, we limit our review of appellant's complaint to the issue of trial counsel's performance during the assessment of punishment. See Kirtley, 56 S.W.3d at 51; Duckworth v. State, 89 S.W.3d 747, 749 (Tex.App.-Dallas 2002, no pet.). We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999); . To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. When the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State,

  3. McNatt v. State

    152 S.W.3d 645 (Tex. App. 2004)   Cited 12 times
    Listing requirements of proper notice of intent to enhance punishment

    See Sears, 91 S.W.3d at 454 (State's notice of intent to use conviction for impeachment, and presence of the conviction in State's file, both insufficient to alert defendant of intent to use it to enhance punishment). The State relies on Duckworth v. State, 89 S.W.3d 747 (Tex.App.-Dallas 2002, no pet.), and Jingles v. State, 752 S.W.2d 126 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd), to support its argument that McNatt received proper notice. These two cases are not on point.

  4. Sherley v. State

    No. 05-23-00196-CR (Tex. App. Mar. 27, 2024)

    See Duckworth v. State, 89 S.W.3d 747, 752 (Tex. App.-Dallas 2002, no pet.). Because there is no evidence that trial counsel's investigation was deficient, or that a more thorough investigation would have produced a different result, appellant's argument fails.

  5. Morales v. State

    No. 08-20-00102-CR (Tex. App. Oct. 14, 2022)

    "In most cases, a silent record will not overcome the strong presumption of reasonable assistance." Duckworth v. State, 89 S.W.3d 747, 751 (Tex.App.-Dallas 2002, no pet.).

  6. Reyes v. State

    No. 05-19-00952-CR (Tex. App. May. 11, 2021)   Cited 1 times

    See TEX. CONST. art. 5, § 5 ("The Court of Criminal Appeals shall have final appellate jurisdiction . . . and its determinations shall be final . . . ."); State ex rel. Wilson v. Briggs, 351 S.W.2d 892, 894 (Tex. Crim. App. 1961) ("The Court of Criminal Appeals is the court of last resort in this state in criminal matters. This being so, no other court of this state has authority to overrule or circumvent its decisions, or disobey its mandates."); Duckworth v. State, 89 S.W.3d 747, 752-53 (Tex. App.—Dallas 2002, no pet.) ("Our Court does not have the authority to circumvent a decision of the court of criminal appeals."). We decline appellant's invitation to "re-evaluate the holding in Delgado."

  7. Herrera v. State

    No. 05-19-00021-CR (Tex. App. Aug. 3, 2020)   Cited 4 times

    On the second Strickland factor, Herrera has failed to show what beneficial information any additional investigation or efforts would have uncovered, or how any such information might have led to a lesser punishment, had it been more thoroughly developed. See Bone, 77 S.W.3d at 836-37 (court erred in reversing DWI conviction based on Strickland when nothing in the record would have probably led to a not guilty verdict or a lesser punishment had it been developed more thoroughly); Morrow v. State, 486 S.W.3d 139, 152-53 (Tex. App.—Texarkana 2016, pet. ref'd) (prejudice not shown where trial court assessed sentence of 20 years' imprisonment and $10,000 fine, which court noted was "on the low end of the sentencing range for this violent crime"); Duckworth, 89 S.W.3d 747, 752 (Tex. App.—Dallas 2002, no pet.) (to show prejudice, record should demonstrate what might have led to a lesser punishment had it been developed more thoroughly) (citing Bone, 77 S.W.3d at 836-37); Morales, 2020 WL 57342, at *4 (appellant failed to make required showing of prejudice in open plea case when trial court imposed a mid-range sentence).

  8. Cisneros v. State

    No. 04-19-00051-CR (Tex. App. Jul. 10, 2019)

    Where the record on appeal does not reflect that counsel failed to investigate or demonstrate how more investigation would have led to mitigating evidence and a lesser sentence, we will not find counsel was ineffective. See Duckworth v. State, 89 S.W.3d 747, 752 (Tex. App.—Dallas 2002, no pet.); Perez v. State, No. 04-01-00485-CR, 2002 WL 1370085, at *2 (Tex. App.—San Antonio June 26, 2002, no pet.) (mem. op.).

  9. Welch v. State

    No. 02-17-00413-CR (Tex. App. Jan. 31, 2019)   Cited 1 times

    However, decisions regarding calling witnesses and what points to emphasize in closing argument were Welch's trial counsel's to make. See Duckworth v. State, 89 S.W.3d 747, 752 (Tex. App.—Dallas 2002, no pet.) (rejecting ineffective-assistance-of-counsel argument on direct appeal that "counsel's closing argument should have been more strenuous"); see also McCoy v. Louisiana, 138 S. Ct. 1500, 1516 (2018) (Alito, J., dissenting) (reciting that "[a]mong the decisions that counsel is free to make unilaterally are . . . calling defense witnesses[] and deciding what to say in summation"). Nothing in the record reveals any other witnesses Welch would have called.

  10. Cunningham v. State

    No. 04-17-00512-CR (Tex. App. Jun. 6, 2018)

    Further, even a brief closing argument such as this one is not necessarily ineffective assistance of counsel. See Duckworth v. State, 89 S.W.3d 747, 752 (Tex. App.—Dallas 2002, no pet.) (rejecting complaint that closing argument should have been more strenuous because record was silent as to counsel's tactics or strategy).