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Date: 08-10-2018

Case Style:

Jennifer Zapalac v. The State of Texas

Heartbroken dad is furious at repeat DWI offender ex-wife who killed their little girl in drunk driving incident

Case Number: 03-18-00215-CR

Judge: Jeff Rose

Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Plaintiff's Attorney: The Honorable Bryan Goertz
Ms. Valerie Ann Bullock
The Honorable Stacey M. Soule
Ms. Kristin Metcalf Burns

Defendant's Attorney: Forrest Sanderson

Description: The underlying facts and procedural posture are not disputed. In September 2015,
Zapalac drove off the roadway and collided with a tree, resulting in the death of her seven-year-old
daughter Victoria. In connection with that incident, Zapalac pleaded guilty to manslaughter, a
second-degree felony, see id., and the district court sentenced her to ten years’ deferred adjudication,
120 hours of community service, and a $1,250 fine. The conditions of Zapalac’s community
supervision included, among other requirements, that she avoid the use of alcohol and illegal
substances and that she meet with a psychotherapist for two years.
The State later moved to adjudicate guilt, alleging that Zapalac had used alcohol in
violation of the terms of her community supervision. Zapalac pleaded true to the allegations in the
State’s motion to adjudicate. At the adjudication hearing, the district court ordered a pre-sentencing
investigation, including a mental-health evaluation that defense counsel had requested. Zapalac’s
psychotherapist, Janice Moore, performed the mental-health evaluation.
At the punishment hearing, the State offered testimony from Zapalac’s probation
officer and from an investigator from the Bastrop district attorney’s office. Zapalac’s only witness
was her mother. Near the end of the punishment proceedings, the district court confirmed, upon
defense counsel’s request, that it had received and reviewed Zapalac’s mental-health evaluation,
which was attached to the pre-sentence investigation report. Defense counsel suggested that it would
be helpful for the district court to have Moore, the author of the mental-health evaluation, testify, but
that counsel would need a recess to arrange for such testimony because counsel had no previous
contact with Moore. The district court denied the request for a recess, and both sides rested.
During closing arguments, defense counsel referenced the mental-health evaluation
as support for Zapalac’s assertion that she was suffering from mental-health issues when she violated
the terms of her community supervision. The State’s attorney, on the other hand, criticized Zapalac
2
for not producing as witnesses any of the mental-health providers that she alleged had been providing
treatment to her. After taking a short recess to consider the evidence, the district court sentenced
Zapalac to twenty years’ confinement in the Texas Department of Criminal Justice – Institutional
Division. This appeal followed.
Discussion
In two closely related issues, Zapalac asserts that she was denied effective assistance
of counsel because, with regard to mitigating punishment, her counsel failed to (1) present any expert
mental-health testimony and (2) to interview and subpoena Zapalac’s psychotherapist, Janice Moore,
as a mental-health witness.
We review a claim of ineffective assistance of counsel under the two-pronged
standard of Strickland v. Washington, 466 U.S. 668, 687 (1984). Zapalac must first establish that
counsel’s performance was deficient. Id. This requires showing that her trial counsel made errors
so serious that counsel was not functioning as the “counsel” the Sixth Amendment guarantees. Id.
Second, Zapalac must show that the deficient performance prejudiced the defense. Id. This requires
showing that her trial counsel’s errors were so serious as to deprive the defendant of a fair trial. Id.
Zapalac has the burden to prove ineffective assistance of counsel by a preponderance
of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To defeat the
strong presumption of reasonable professional assistance, any allegation of ineffectiveness must
be firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
3
Here, Zapalac urges that it was necessary for her trial counsel to offer mental-health
evidence from experts or Moore to mitigate or explain why someone in her situation—i.e., stricken
with guilt, grief, and remorse from the death of her daughter by her own hands—would have violated
her probation terms by consuming alcohol. Only an expert, Zapalac contends, could provide the
court with a coherent explanation for why such a person “would have felt compelled to self
medicate” in spite of the legal ramifications of doing so. Relatedly, Zapalac contends that only a
mental-health expert could offer the district court viable treatment options for rehabilitating her, an
otherwise “contributing and well-respected member of the community with no prior convictions.”
Her trial counsel’s failure to do so, Zapalac contends, was “well outside the range of professionally
competent assistance.”
The record before us contains no evidence of the strategy behind trial counsel’s
actions or omissions. Although Zapalac filed a motion for new trial, the motion did not allege that
her counsel was ineffective in representing her in the adjudication proceeding. Because Zapalac did
not obtain a hearing on the motion for new trial, there was no opportunity to develop the record to
include information regarding counsel’s strategy at trial. To satisfy the first prong of Strickland on
a silent record, it must be apparent “that counsel’s performance fell below an objective standard of
reasonableness as a matter of law, and that no reasonable trial strategy could justify trial counsel’s
acts or omissions, regardless of his or her subjective reasoning.” Lopez v. State, 343 S.W.3d 137,
143 (Tex. Crim. App. 2011). This is not such a case. There are plausible reasons for not having
offered the evidence at issue here. For example, there was already a mental-health evaluation by
Zapalac’s psychotherapist, favorable to Zapalac, that the trial court acknowledged reviewing.
4
Further, as the State notes, Zapalac’s trial counsel could have wanted to avoid giving the State
the opportunity to cross examine Moore, or another mental-health expert, regarding Zapalac’s
mental health when the district court already had before it Moore’s favorable written evaluation.
Accordingly, Zapalac has failed to show that her trial counsel’s performance was deficient.
Failure of an appellant to satisfy the first prong of the Strickland test negates our need
to consider the second. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). However,
we also note that, even if Zapalac could establish the first prong of the Strickland test, she has not
shown that the deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687. In
order to demonstrate that the defense was prejudiced, an appellant must show that the deficient
conduct more likely than not altered the outcome in a case. Id. at 693. This record does not support
such a showing.
On this record, therefore, we conclude that Zapalac has failed to prove her claim of
ineffective assistance of counsel under Strickland, and we overrule her first and second issues.

Outcome: Having overruled Zapalac’s appellate issues, we affirm the district court’s judgment.

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Defendant's Experts:

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