Description: In August 2015, an indictment was filed alleging that on or about July 2, 2015,
Appellant intentionally fled from Michael Fenwick, a person Appellant knew was a peace
officer who was attempting lawfully to arrest or detain her and that she did so while using
a vehicle. More than five months later, the State filed its Notice of Intent to Enhance
Punishment Range with Prior Felony Conviction of Defendant Pursuant to Texas Penal
Code Section 12.42(a). The State’s Notice alleged Appellant had been previously
convicted of the third-degree felony offense of unlawful possession of a firearm in
In February 2016, trial commenced. The State was ready to proceed; however,
Appellant sought to replace her attorney, Jeffrey Hill, with a new attorney, Michael
Warner. The trial court indicated that regardless of the substitution, a jury would be
selected that afternoon and witnesses would be called the following morning.
Warner made an oral motion for substitution. In support, he stated that he met
with Appellant that morning, explained the pros and cons of substitution to her, and
explored with her the pros and cons of moving forward with new counsel. Although he
had not reviewed the State’s case file, he had reviewed portions of several police
videotapes. He informed the trial court that he was ready to go forward with jury selection
and would review the police reports and videotapes before witnesses were called the next
morning. Appellant represented that she had an opportunity to visit with both attorneys
about the possible pitfalls of switching attorneys and requested that the trial court grant
Warner’s motion. Thereafter, the trial court granted the motion and proceeded with jury
selection that afternoon.
The next day, Warner informed the trial court that Appellant wanted to waive her
right to a jury trial and proceed with an open plea of guilty. Prior to entering the plea,
Appellant executed Written Plea Admonishments wherein she received notice of her
enhanced punishment range and acknowledged she was mentally competent to stand
trial, was aware of the consequences of her plea, was “total[ly] satisf[ied] with the
representation of [her] counsel, and that counsel was competent in every respect of
representation.” She also judicially confessed to all the allegations in the indictment.
During the open plea, Appellant acknowledged she was guilty of evading arrest or
detention with a vehicle, was able to think clearly, and had never been declared mentally
incompetent. Appellant further acknowledged her counsel was able to answer all her
questions. She also acknowledged that she signed a judicial confession of her own free
will and understood she was giving up her right to a trial by jury. The State then called
two witnesses, Officer Michael Fenwick and Deputy Tim Nguyen.
The State’s evidence indicated that Officer Fenwick received a dispatch describing
a pickup that had fled a stabbing incident. He subsequently identified Appellant’s pickup
as that pickup and initiated a stop by activating his emergency lights and siren. Through
the rear window of the pickup, he could see an Asian female was driving and there were
two small children in the rear seat of the extended cab. The pickup did not pull over to
the side of the road. Instead, he followed the pickup for several miles during which the
pickup was travelling sixty-five miles an hour in a fifty-five-mile-per-hour speed zone. He
subsequently discontinued his pursuit for the safety of the children in the pickup.
Within the hour, he arrived at the address on the pickup’s vehicle registration,
identified the pickup parked at the residence, and observed Appellant getting out of the
pickup. She was placed under arrest. Deputy Nguyen testified that after Officer
Fenwick’s pursuit, he met Appellant driving away from the residence whereupon she
turned around and returned to the residence. He followed her to the residence. His
testimony of the events that occurred at the residence after he arrived corroborated
Officer Fenwick’s account.
At this point, the parties alerted the trial court that while it had admonished her on
the possible punishment under the enhanced penalty, Appellant had not entered a plea
to the prior felony enhancement. The trial court subsequently accepted Appellant’s plea
of true to the enhancement.
The defense called two witnesses, Vincente Puentes and Appellant. Puentes,
Appellant’s boyfriend, testified that a year-and-a-half earlier, Appellant had given birth to
a premature baby who subsequently passed away. After the baby passed, Appellant was
admitted to a mental health facility for depression. Prior to the pursuit, he testified that
she had given birth to a second premature baby and was going to the hospital four times
a day to feed him. Appellant testified that she suffered from depression after the loss of
her first child, and when Officer Fenwick turned on his emergency lights, all she could
think about was getting to the hospital to see her child. She knew he wanted her to stop,
and during the pursuit, she was driving ten miles per hour over the speed limit. On
rebuttal, Sergeant Anthony Merryman testified that prior to the pursuit, the police had
received a call from the residence concerning a stabbing. After her arrest at the
residence, Appellant told Sergeant Merryman that a physical altercation had occurred that
led to a cut on her finger and her boyfriend had thrown her purse out the pickup’s window
prior to Officer Fenwick’s pursuit.
In closing, Warner argued there were extenuating circumstances that led to the
pursuit. He highlighted that during the pursuit, Appellant had waived to officers to follow
her and waited for them to arrive at her residence. He described the psychological effect
of the death of her first child and the ongoing circumstances of the second birth as factors
leading to the pursuit. He asked the trial court to consider deferred adjudication for a
period of five years.
The trial court found the evidence sufficient to sustain a finding of guilt and a finding
of true to the prior felony conviction. The trial judge observed that, given the evidence,
her guilty plea was a “smart move.” While the trial judge understood there were
extenuating circumstances, he did not feel she was being completely honest with him
regarding the circumstances prior to the pursuit. Her lack of credibility coupled with her
prior felony conviction for felon in possession of a firearm led him to sentence her to five
years confinement. This appeal followed.
On appeal, Appellant brings forward a multifarious issue asserting that the
substitution of her counsel the day of trial deprived her of her right to the effective
assistance of counsel. Thus, whether Appellant is asserting the trial court abused its
discretion by granting the motion to substitute counsel or substituted counsel’s
representation was ineffective or both are unclear. Therefore, we will address these two
matters in turn as a single issue.
MOTION TO SUBSTITUTE COUNSEL
A trial court’s decision to allow a withdrawal and substitution of counsel is reviewed
under an abuse of discretion standard. King v. State, 29 S.W.3d 556, 566 (Tex. Crim.
App. 2000). This discretion includes the option to allow last-minute substitution of
counsel. See Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991). The test
for abuse of discretion is whether the trial court acted without reference to any guiding
rules and principles or acted arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497,
502 (Tex. Crim. App. 1993). If the trial court’s ruling is within the zone of reasonable
disagreement, there is no abuse of discretion and the trial court’s ruling will be upheld.
Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).
Here, Appellant’s conduct evidences an intent to create an attorney-client
relationship with Warner. Appellant was not only aware that he would replace her present
attorney, but also that she had met with Warner before trial. During the meeting, Warner
explained the pros and cons of substitution and explored her options in addressing the
State’s charges. When Warner made his oral motion for substitution, Appellant did not
object. Instead, she affirmatively requested the replacement of her counsel, indicated
she had an opportunity to visit with both attorneys about possible pitfalls of switching
attorneys, and was present when the trial court considered Warner’s motion. There was
no reason for the trial court to suspect that Appellant did not accept Warner as her new
attorney. Accordingly, having reviewed the record, we cannot say that the trial court
abused its discretion in granting Appellant’s motion to substitute counsel.
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant also asserts Warner’s representation was ineffective as a matter of law
because he was ill-prepared to advise her when the trial court granted her motion that he
be substituted as counsel. Appellant asserts Warner should have undertaken a detailed
investigation prior to assuming representation and developed mitigation evidence to be
presented at sentencing.
To prevail on an ineffective assistance of counsel claim, an appellant must show,
by a preponderance of the evidence, (1) deficient performance by trial counsel and (2)
prejudice arising from the deficient performance. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Jimenez, 364 S.W.3d 866, 883
(Tex. Crim. App. 2012). To establish deficient performance, an appellant must prove that
counsel’s representation fell below the “objective standard of reasonableness.” Id. The
Strickland test is judged by the “totality of the representation” not by counsel’s isolated
acts or omissions, and the test is applied from the viewpoint of the attorney at the time of
the complained-of act or omission rather than through hindsight. Id. Furthermore, there
is a strong presumption that counsel rendered adequate assistance and exercised
reasonable professional competence. Strickland, 466 U.S. at 690; Ex parte Niswanger,
335 S.W.3d 611, 619 (Tex. Crim. App. 2011).
To overcome this presumption, an appellant must establish counsel’s
ineffectiveness is “firmly grounded in the record” and “the record must affirmatively
demonstrate” the alleged ineffectiveness. Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999)). Otherwise, the strong presumption that a trial counsel acted within the proper
range of reasonable and professional assistance and had a sound trial strategy in mind
is not overcome. Badillo v. State, 255 S.W.3d 125, 129 (Tex. App.—San Antonio 2008,
Further, if an appellant can demonstrate deficient performance, he or she must still
affirmatively prove prejudice by showing a reasonable probability that “but for counsel’s
unprofessional errors” the outcome at trial would have been different. Strickland, 466
U.S. at 694; Thompson, 9 S.W.3d at 812. Failure to make the required showing of either
deficient performance or sufficient prejudice defeats an ineffectiveness claim. Thompson,
9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996),
cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997)).
Generally, direct appeals are inadequate vehicles for Strickland claims because
the record is usually undeveloped. Goodspeed, 187 S.W.3d at 392; Bone v. State, 77
S.W.3d 828, 833 (Tex. Crim. App. 2002). This is true regarding claims of deficient
performance where counsel’s reasons for claimed error do not appear in the record. Id.
Generally, a reviewing court should not find deficient performance unless trial counsel
has had an opportunity to explain his actions or the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Id. at 834 n.13.
Accordingly, a silent record, such as we have here, provides little explanation for
counsel’s actions and is generally insufficient to overcome the strong presumption of
reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App.
2003); Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003). See also Badillo,
255 S.W.3d at 129 (“a silent record on the reasoning behind counsel’s actions is sufficient
to deny relief”).
Here, Appellant complains that a detailed investigation should have been
performed without establishing what, if anything, a more detailed investigation would have
revealed. Neither is there any evidence that such an investigation would establish a
reasonable probability that her sentence would have been reduced or that the
development of mitigation evidence would have prompted a similar result. As such,
Appellant has also failed to meet her burden under the second prong of Strickland.
Accordingly, we reject Appellant’s characterization of counsel’s performance as
constitutionally deficient as a matter of law. Many claimed deficiencies are wholly
unsupported by the record or involve actions that might reasonably be explained by trial
strategy. When the record before us contains no explanation of trial counsel’s actions,
we are not required to speculate. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.
App. 1994). Therefore, in light of the existing record, we conclude Appellant failed to
rebut the presumption that trial counsel’s actions were reasonable. Thompson, 9 S.W.3d
at 814. Appellant’s single issue is overruled.
Outcome: The judgment of the trial court is affirmed.