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Date: 04-20-2019

Case Style:

Nathan Kyle Goblish v. The State of Texas

Case Number: 09-18-00207-CR


Court: Court of Appeals Ninth District of Texas at Beaumont

Plaintiff's Attorney: William J. Delmore III

Defendant's Attorney: Oscar L. Sommers III


To prevail on a claim of ineffective assistance of counsel, an appellant must
satisfy a two-pronged test:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State,
726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986) An appellant must demonstrate a
reasonable probability that but for his counsel’s errors, the jury’s assessment of
punishment would have been less severe. Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002); Bazan v. State, 403 S.W.3d 8, 13 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d). “Appellate review of defense counsel’s representation is
highly deferential and presumes that counsel’s actions fell within the wide range of
reasonable and professional assistance.” Bone, 77 S.W.3d at 833.
An attorney’s decision not to present particular witnesses during the
punishment phase of trial is largely a matter of trial strategy. Robinson v. State, 514
S.W.3d 816, 824 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). Goblish must
prove that there was no professional reason for specific acts or omissions of his
counsel. See Bone, 77 S.W.3d at 836. In addition, any allegation of ineffectiveness


“must be ‘firmly founded in the record’ and ‘the record must affirmatively
demonstrate’ the meritorious nature of the claim.” Menefield v. State, 363 S.W.3d
591, 592 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390,
392 (Tex. Crim. App. 2005)). Ordinarily, trial counsel should be given an
opportunity to explain his actions before being denounced as ineffective.
Menefield, 363 S.W.3d at 593. Thus, the bare record on direct appeal is usually
insufficient to demonstrate that “counsel’s representation was so deficient and so
lacking in tactical or strategic decisionmaking as to overcome the presumption that
counsel’s conduct was reasonable and professional.” Bone, 77 S.W.3d at
833 (citation omitted). Here, because no motion for new trial was filed, Goblish’s
counsel was not provided an opportunity to fully explain the choices he made in
representing Goblish and in presenting the case to the jury.
Goblish argues that his own testimony was the only evidence his trial
counsel presented during punishment, and that an “undefined number of friends”
were willing to testify. Goblish also argues that his trial counsel both failed to
timely present these witnesses and failed to request a recess to secure the
witnesses. According to Goblish, because his trial counsel failed to arrange to have
these witnesses available for trial, there was no opportunity to bring in his former
wives or girlfriends to prove he was not a pedophile, and the lack of such


testimony prejudiced the outcome of his trial. Goblish asks that this Court allow
the trial court the opportunity to review what the testimony of these unnamed
witnesses would have been to determine the degree of prejudice resulting from the
lack of such testimony.
A defendant who complains about trial counsel’s failure to call witnesses
must show that the witnesses were available and that he would have benefitted
from their testimony. Robinson, 514 S.W.3d at 824. The record shows that at the
beginning of the punishment phase, trial counsel informed the trial court that one
of Goblish’s friends would be present to testify “in about an hour.” After the State
rested, the trial court granted trial counsel’s request for a short recess to give
Goblish’s fellow colleagues and supervisors time to appear. Later, trial counsel
asked the trial court for permission to testify in Goblish’s defense concerning
Goblish’s criminal history and divorce, explaining that Goblish had elected not to
testify during punishment and that his other potential witnesses were not going to
make it in time to testify. The trial court noted that it had granted Goblish a twenty
minute recess, and after forty minutes, Goblish’s witnesses had failed to appear. At
that point, Goblish decided to testify on his behalf. Goblish testified that he worked
for ALATAS Americas, and that the vice-president, Robin Thomas, was on his
way to court to testify in his defense. After Goblish testified on direct examination,


trial counsel requested additional time to allow Thomas to get to court, but the
record shows Thomas failed to appear before the trial ended. Trial counsel
informed the trial court that he had tried to find witnesses for the punishment phase
but had not anticipated that the trial would move so quickly.
On this record, Goblish cannot establish ineffective assistance based on his
trial counsel’s failure to present witnesses during the punishment phase, even
though trial counsel admitted that the reason no witnesses were present was due, at
least in part, to counsel’s failure to ensure their attendance. Goblish failed to
present evidence showing that he would have benefitted from any testimony of
these witnesses. See Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim. App.
2005); Robinson, 514 S.W.3d at 824; Milburn v. State, 15 S.W.3d 267, 269-70
(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). We conclude that Goblish has
failed to establish ineffective assistance of counsel by a preponderance of the
evidence, and we overrule his sole issue and affirm the trial court’s judgment. See
Strickland, 466 U.S. at 687; Bone, 77 S.W.3d at 833.


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