HRADEK, LINDSEY v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0083-23

THE STATE OF TEXAS

v.

LINDSEY HRADEK, Appellee

ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS
EL PASO COUNTY

KELLER, P.J., filed a dissenting opinion.

DISSENTING OPINION

The trial court granted a motion for new trial on the basis of ineffective assistance of counsel.

It found that numerous errors prejudiced Appellee. The court of appeals reversed, rejecting all of

the ineffective assistance allegations. This Court now says that the court of appeals erred in failing

to view the record in the light most favorable to the trial court’s ruling. Specifically, this Court

concludes that the issue of prejudice depended on an evaluation of the credibility and demeanor of

the new-trial witnesses and that the trial court was better positioned than an appellate court to

evaluate the issue. The Court then says that, under a proper review, prejudice was shown.
HRADEK DISSENT — 2

But the trial court made a crucial error of law that makes deferring to it problematic—it

concluded that, except for the small portion the State sought to admit, the entire phone call was

inadmissible. But in fact, much of the remainder of the phone call was admissible. Under Lockhart

v. Fretwell,1 any admissible evidence should weigh in the State’s favor for the purpose of assessing

prejudice. Once the admissible evidence is taken into account, it becomes clear that Appellee has

not shown prejudice.

In Conclusions 1 and 2, the trial court suggested that, except for the part the State specifically

offered (Appellee admitting to using cocaine), the rest of the phone call was inadmissible:

1. The additional portions of the recorded phone call in State’s Exhibit 51 contained
statements by Defendant and her mother Whitney Hradek that were inadmissible
pursuant to Texas Rules of Evidence.

2. The probative value of the additional portions of State’s Exhibit 51 admitted by
defense counsel were substantially outweighed by the unfair prejudice to the defense
and were highly inflammatory.

But the trial court’s assessment is incorrect because much of the remainder of the phone call

was admissible. It is true that the mother’s statements were inadmissible hearsay.2 But Appellee’s

statements constituted party-opponent admissions that would not be barred by the hearsay rule.3

Appellee’s references to being a dancer and a stripper were inadmissible character evidence.4 The

admissibility of her statement about considering a plea of guilty is murkier, because it does not seem

1
506 U.S. 364 (1993).
2
See TEX. R. EVID. 801, 802.
3
See id. 801(e)(2).
4
See id. 404(b).
HRADEK DISSENT — 3

to fall squarely within the rule against admitting evidence of plea negotiations,5 though perhaps it

could be deemed unfairly prejudicial under Rule 403.6 But most of Appellee’s remaining statements

were clearly admissible. They were statements about the offense or her reaction to being prosecuted

that were relevant to her mental state at the time of the offense and to consciousness of guilt. These

included the statement that she “wished her son was never born” (Finding 22), the statement that she

“wished she had never gotten pregnant” (Finding 23), cursing the medical examiner (Finding 26),

using cocaine (Finding 28), having anger and mental health issues (Finding 30), and uses of profanity

that the trial court did not specify (Finding 32), but which included her saying that the State had

nothing on her because she did nothing wrong and her saying that she used cocaine. And as the

Court’s opinion says, she admitted that the baby slept in the bed next to her, and her own expert

acknowledged that it was unsafe for a young baby to sleep in an adult bed.

The trial court’s error on the admissibility issue is important because the prejudice inquiry

should in fact turn on the admissibility of the evidence and not merely on what the trial court would

have done if Appellee had objected to the remainder of the call. In Fretwell, the Supreme Court

addressed a situation where the defense attorney failed to lodge an objection that would have been

meritorious under a court decision that existed at the time of trial.7 The case that supported the

objection was later overruled.8 An intermediate federal appellate court concluded that prejudice had

been shown because the objection would have been sustained under the caselaw that existed at the

5
See id. 408.
6
See id. 403.
7
506 U.S. at 366.
8
Id.
HRADEK DISSENT — 4

time.9 The Supreme Court, however, concluded that test for prejudice for an ineffective-assistance

claim was more nuanced than a simple outcome determination.10 The Court concluded that a

prejudice analysis must also look at whether the challenged conduct had an effect “on the reliability

of the trial process.”11 Showing prejudice requires showing that the result was “fundamentally unfair

or unreliable.”12 Because the case that would have supported a defense objection was overruled,

there was in fact no error in the trial to object to, and prejudice does not occur when counsel’s

actions merely “deprive[] [Appellee] of the chance to have the state court make an error in his

favor.”13

So the admissible portions of the phone call weigh in the State’s favor, not Appellee’s favor,

under a prejudice analysis. Appellee characterized the recording of the phone call as “the most

damning piece of evidence in the entire trial” but that “damning” nature was due largely to the

admissible parts of the call—the various statements that Appellee made about her child and the

impending proceedings. The Court says that the trial court’s prejudice conclusion is supported by

attorney Maesse’s opinion testimony that the telephone recording annihilated the defense. But that

opinion testimony assumes that the entire remainder of the phone call should be kept out, when much

of it was in fact admissible. Although the mother’s hearsay statements included the mother berating

9
Id. at 368.
10
Id. at 369 (“Thus, an analysis focusing solely on mere outcome determination, without
attention to whether the result of the proceeding was fundamentally unfair or unreliable, is
defective.”).
11
Id.
12
Id.
13
Id. at 371.
HRADEK DISSENT — 5

Appellee for not taking the proceedings seriously, Appellee’s own statements would have conveyed

the same impression to the jury.

Given that Appellee was convicted of a lesser-included offense rather than the charged

offense, and given that much of the phone call was admissible, I would conclude, as the court of

appeals did, that Appellee suffered no prejudice.14

I respectfully dissent.

Filed: December 11, 2024

Publish

14
In Conclusion 16, the trial court painted the evidence of the culpable mental states of
intent and knowledge (for the charged offense) as weak:

Although a directed verdict was not granted, the State’s evidence of conduct by
omission and the requisite state of mind pled in the indictment of intentional and
knowing was marginal.

But Appellee was acquitted of the charged offense with those culpable mental states. She was,
instead, convicted of the lesser-included offense of recklessly causing serious bodily injury. The
findings and conclusions do not comment on the strength of the evidence to show recklessness.