David Matthew Dever v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00354-CR

David Matthew Dever,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
413th District Court of Johnson County, Texas
Judge William C. Bosworth Jr., presiding
Trial Court Cause No. DC-F202200781

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

At trial, David Matthew Dever pled not guilty to capital murder (Count

One) and guilty to unlawful possession of a firearm by a felon (Count Two).1

After hearing the evidence, a jury found him guilty on both counts. Dever was

sentenced to mandatory life in prison without parole for capital murder and to

1 Dever was originally charged by indictment with capital murder (Count One), engaging in organized

criminal activity (Count Two), and unlawful possession of a firearm by a felon (Count Three). Prior to
reading the indictment to the jury, the State abandoned the charge of engaging in organized criminal
activity, and the counts in the indictment were renumbered by agreement of the parties.
two years in prison for unlawful possession of a firearm by a felon.2 In three

issues on appeal, Dever argues that the trial court abused its discretion by

denying his challenge for cause, claims that he received ineffective assistance

of counsel, and requests that we modify the bill of costs for Count One to delete

the assessment of court-appointed attorney’s fees. We modify the bill of costs

in Count One to delete the assessment of court-appointed attorney’s fees and

affirm the judgments in Count One and Count Two.

Background

One of the prospective jurors summoned for trial in this case was the

mother-in-law of the Honorable Timothy M. Good, the District Attorney-elect

of the office that was prosecuting Dever. Though she indicated on her juror

card that she knew the District Attorney-elect, neither party questioned the

mother-in-law about their relationship during voir dire.3

After both sides tendered their strike lists, the trial court brought the

potential familial relationship to the parties’ attention. The trial court

commented, “I don’t know if that rises to a conflict,” but “[w]e can manage it

right now.” The mother-in-law was called in individually and both parties

2 The parties entered into a plea agreement for the two-year sentence on Count Two after the jury’s

finding of guilt.

3 The record does not include a copy of the juror card, and it is unclear exactly what statement the

mother-in-law made on the juror card to alert the parties to her relationship to Good.

David Matthew Dever v. The State of Texas Page 2
questioned her about her relationship with Good. She acknowledged that Good

was her son-in-law and that they had a good relationship; however, she

maintained that their relationship would not influence her as a juror, that she

would not discuss this case with him during the trial, and that she would follow

the instructions of the court.

Defense counsel then challenged her for cause on the basis of her

relationship with the District Attorney-elect and the chance that she might

discuss the case with him. The State disagreed with the challenge for cause,

explaining that Good was not the acting District Attorney and was not

overseeing this case. The trial court denied the challenge for cause.

Dever’s trial counsel did not request any additional peremptory strikes,

and the mother-in-law served on the jury.

Challenge for Cause

In his first issue, Dever contends that the trial court erred in denying his

challenge for cause to the District Attorney-elect’s mother-in-law because she

is “per se incapable or unfit to serve” on a jury pursuant to article 35.16 of the

Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 35.16. We

disagree.

David Matthew Dever v. The State of Texas Page 3
RELEVANT LAW

A challenge for cause is “an objection made to a particular juror, alleging

some fact which renders the juror incapable or unfit to serve on the jury.” Id.

Article 35.16 of the Code of Criminal Procedure permits the defense to

challenge for cause a prospective juror who is related within the third degree

of affinity to “any prosecutor in the case.” Id. at (c)(1). A person’s mother-in-

law is related within the third degree of affinity. See TEX. GOV’T CODE ANN. §§

573.023(c)(1), 573.024, 573.025(b)(1).

On appeal, the appellant must show on the record that he complied with

five steps demonstrating harm from an alleged erroneous denial of a challenge

for cause. See Hudson v. State, 620 S.W.3d 726, 729-30 (Tex. Crim. App. 2021).

The first step requires the defendant to establish that he made a
“clear and specific challenge for cause” against a panel member.
This ensures that the defendant alerts the trial judge to the
complaint at a time and in a manner in which it could be
addressed. Then, the defendant must use a
peremptory challenge on the complained-of member and exhaust
all remaining peremptory challenges. If the defendant does not
exhaust his peremptory strikes, then the trial judge's
erroneous denial has not harmed the defendant because he was
not stripped of the right to dismiss an “obnoxious” juror. The
defendant must then ask for an additional strike so that the judge
is given the opportunity to correct his error by granting an
additional peremptory strike to make up for the one that was
wrongly denied. Finally, the defendant must identify on the record
the objectionable juror whom he would have removed with the
additional strike, but he is not required to explain why that juror
is objectionable.

David Matthew Dever v. The State of Texas Page 4
Id.

If these preliminary steps are satisfied, the reviewing court looks to the

entire record to determine whether sufficient evidence exists to support the

court’s denial of the challenge for cause. Id. at 731. We reverse only for a clear

abuse of discretion. Id.

ANALYSIS

Dever failed to complete the preliminary steps necessary to show harm

from the trial court’s denial of the challenge for cause. Though he made a clear

and specific challenge for cause and exhausted all of his peremptory strikes,

he did not use a peremptory strike on the mother-in-law, request an additional

strike, or identify on the record any objectionable juror he would have removed

with the additional strike. See id. at 729-30.

Even so, Good was not a “prosecutor in the case” as contemplated by

article 35.16(c)(1). See State v. Morales, 253 S.W.3d 686, 693 n.18 (Tex. Crim.

App. 2008) (“In our view the provision refers to the elected District Attorney

and any assistant district attorneys actively involved in prosecuting ‘the case’

at trial”). The authority to represent the State in criminal cases is vested in

the elected District Attorney, who holds office for a term of four years and

continues in that role until his or her successor has officially qualified and

taken office. See TEX. CONST. art. V, § 21, art. XVI, §§ 1, 17; TEX. CODE CRIM.

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PROC. ANN. art. 2A.102. The record reflects that Good did not represent the

State at trial and had not yet assumed the office of District Attorney. He had

no authority to oversee or participate in this case by virtue of his status as the

District Attorney-elect. Therefore, we find that Good’s mother-in-law was not

subject to challenge for cause as a person related within the third-degree of

affinity to a “prosecutor in the case.” See TEX. CODE CRIM. PROC. ANN. art.

35.16(c)(1). The trial court did not abuse its discretion by denying Dever’s

challenge for cause on this basis.

Accordingly, we overrule Dever’s first issue on appeal.

Ineffective Assistance of Counsel

In his second issue, Dever claims he received ineffective assistance of

counsel at trial. We disagree.

RELEVANT LAW

To prevail on a claim of ineffective assistance of counsel, an appellant

must meet the two-pronged test established by the Supreme Court in

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.

2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55–56 (Tex. Crim. App. 1986)

(adopting the two-pronged test set forth in Strickland).

To establish deficiency under the first prong of Strickland, it must be

proven by a preponderance of the evidence that defense counsel’s

David Matthew Dever v. The State of Texas Page 6
representation objectively fell below the standard of professional norms. Smith

v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). Trial counsel should

generally be given an opportunity to explain his actions before being found

ineffective, and a silent record that provides no explanation for counsel's

actions will not overcome the presumption of reasonable assistance. Rylander

v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).

Under the second Strickland prong, it must be shown that there is a

reasonable probability that, but for defense counsel’s unprofessional errors, the

result of the proceeding would have been different. Smith, 286 S.W.3d at 340.

A “reasonable probability” is a probability sufficient to undermine confidence

in the outcome, meaning counsel’s errors were so serious as to deprive the

defendant of a fair trial with a reliable result. Id. An appellant claiming

ineffective assistance of counsel must affirmatively prove prejudice from

counsel’s deficient performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex.

Crim. App. 1999).

Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffective assistance of counsel claim.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

David Matthew Dever v. The State of Texas Page 7
ANALYSIS

Dever asserts that counsel’s performance was deficient because he did

not use a peremptory strike on the incoming District Attorney’s mother-in-law,

which was a necessary step in preserving his challenge-for-cause issue for

review. He insists that counsel’s decision not to strike her was not strategic

because counsel was unaware of their relationship before exhausting all of his

strikes.

However, Dever does not identify – and we do not find – any affirmative

evidence in the record demonstrating a reasonable probability that Dever was

deprived of a fair trial with a reliable result because counsel did not use a

peremptory strike on the mother-in-law. The statutory basis underlying the

challenge for cause did not apply to her; therefore, counsel’s failure to use a

peremptory strike for purposes of error preservation on the challenge for cause

does not demonstrate prejudice. Further, when the parties individually

questioned the mother-in-law, she indicated that she knew nothing about this

case, that her relationship with the incoming District Attorney would not

influence her, and that she would follow the instructions of the trial court.

Dever has not demonstrated “a reasonable probability that, but for his or her

attorney's errors, the factfinder would have had a reasonable doubt about his

or her guilt[.]” Crucet v. State, 658 S.W.3d 799, 803-04 (Tex. App.—Waco 2022,

David Matthew Dever v. The State of Texas Page 8
pet. ref’d). Because we find that Dever did not meet his burden as to the second

prong of Strickland, it is not necessary for us to address the first prong as to

whether his trial counsel's purported errors did or did not constitute ineffective

assistance.

Accordingly, we overrule Dever’s second issue on appeal.

Court-Appointed Attorney’s Fees

In his third issue, Dever argues that the trial court improperly assessed

court-appointed attorney’s fees against him and requests that we modify the

bill of costs in Count One to delete the assessed fees. See TEX. CODE CRIM.

PROC. ANN. art. 26.05(g); Briceno v. State, 675 S.W.3d 87, 100 (Tex. App.—

Waco 2023, no pet.). The State agrees to the modification.

RELEVANT LAW

A trial court has the authority to order a defendant to reimburse all or

part of his court-appointed attorney’s fees if the trial court determines that the

defendant has the financial resources to enable him to offset the costs of the

legal services provided. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g). When

a trial court makes such a finding, the record must reflect some factual basis

to support the determination that the defendant is capable of paying all or

some of his attorney’s fees at the time of judgment. See Mayer v. State, 309

S.W.3d 552, 555-56 (Tex. Crim. App. 2010); Briceno, 675 S.W.3d at 98. For

David Matthew Dever v. The State of Texas Page 9
purposes of assessing attorney’s fees, once a defendant is found to be indigent,

he is presumed to remain indigent for the remainder of the proceedings in the

case unless a material change in the defendant’s circumstances occurs. See

TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Mayer, 309 S.W.3d at 557. The

evidence will not support an imposition of attorney’s fees if there is no

indication in the record that an indigent defendant’s financial status has in

fact changed. Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013).

ANALYSIS

In Dever’s written judgment of conviction for Count One, the “Court

Costs” section states “SEE BILL OF COST.” The corresponding bill of costs

includes $1,688.87 designated as “Attorney Reimburse – Ct Appt.”4

The trial court appointed counsel to represent Dever at trial because he

was indigent. Dever was thus presumed to remain indigent absent proof of a

material change in his financial circumstances. No such proof exists in the

record. To the contrary, the trial court found that Dever was “too poor to

employ counsel” on the date he was sentenced and appointed new counsel to

represent him on appeal.

We agree with the parties that the evidence is insufficient to sustain the

order requiring Dever to reimburse his court-appointed attorney’s fees.

4 In the written judgment for Count Two, the “Court Costs” section says “SEE CT. 1” and does not

include a corresponding bill of costs.

David Matthew Dever v. The State of Texas Page 10
Accordingly, we sustain Dever’s third issue on appeal. We modify the

bill of costs in Count One to delete the assessment of $1,688.87 designated as

“Attorney Reimburse – Ct Appt.” See Briceno, 675 S.W.3d at 100-01.

Conclusion

We modify the bill of costs in Count One to delete the assessment of

$1,688.87 for court-appointed attorney’s fees. We affirm the judgments in

Count One and Count Two.

STEVE SMITH
Justice

OPINION DELIVERED and FILED: October 23, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed as modified
Do not publish
CRPM

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