Sharrion Murphy v. the State of Texas

Opinion filed January 24, 2025

In The

Eleventh Court of Appeals
__________

No. 11-23-00173-CR
__________

SHARRION MURPHY, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-20-0371-CR

MEMORANDUM OPINION
After a bench trial, the trial court found Appellant, Sharrion Murphy, guilty
of theft of property valued at less than $2,500 with two or more previous convictions,
a state jail felony, and sentenced her to two years’ confinement in a state jail facility.
See TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (West Supp. 2024). In a single issue
with multiple subparts, Appellant asserts that she received ineffective assistance of
counsel. We affirm.
Factual and Procedural History
On November 2, 2019, Appellant was caught on security cameras stealing
merchandise from a Dillard’s department store in Odessa. Appellant was indicted
four months later and then absconded for nearly two years. On July 19, 2022,
Appellant waived her right to a jury trial, and the case was reset for a guilty plea. In
the eleven months that followed, the trial court granted twelve separate requests by
Appellant for continuances before setting the case for a bench trial. The case
proceeded to a bench trial on July 26, 2023.
At trial, Appellant stipulated to the two prior theft convictions alleged in the
indictment, and the State called two witnesses, Leticia Bejarano and Andrea Idith
Carr, whose testimony was not controverted. Bejarano, a Dillard’s employee,
testified that she witnessed a female, later identified as Appellant, concealing
merchandise in the men’s Polo section of the store on November 2, 2019. Security
personnel confronted Appellant outside of the store. Prior to Carr testifying, the trial
court advised the parties that Carr is his “best friend’s wife” and assured them that
it would “not effect [sic] [his] opinion on the case.” Neither party objected nor
requested to examine the witness on voir dire to explore her relationship with the
court. According to Carr, an assistant manager at Dillard’s, $1,576 worth of
merchandise was recovered. Appellant’s trial counsel did not cross-examine either
witness and no other witnesses testified.
Security video footage and an itemized receipt of the stolen merchandise were
admitted into evidence. In the footage, Appellant can be seen removing merchandise
from the shelves and placing items into a large shopping bag. She can later be seen
walking past the cash registers as she exits the store before being escorted back into

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the store by security. Following brief closing arguments by both parties, the trial
court found Appellant guilty.
During punishment proceedings, Appellant’s trial counsel called her to testify.
Appellant testified that in September 2022, while her case was pending, she had been
in a “life changing” motor vehicle accident resulting in injuries that required surgery.
Appellant testified that although she had done “a lot of time” and had “never been
scared to do time,” she was fearful now. Appellant’s trial counsel also questioned
her about the instant case:
[TRIAL COUNSEL]: What caused that change in regards to
your life of larceny?
[APPELLANT]: The big change has came [sic] because I had to
search myself and find out why things were happening that way. I
haven’t been doing anything that I am not supposed to do. I am just
trying to get myself back together because I got out of prison -- I have
been out of prison for 13 years straight without any offenses, until the
end. And that was during the time I was going through some serious
things.
[TRIAL COUNSEL]: Back in November of 2019?
[APPELLANT]: Yes. And I fell back into old behavior.

She asked the trial court for forgiveness and leniency stating: “And I just say
just forgive me. I can’t do it no more. I can’t.”
The trial court sentenced Appellant to two years’ confinement and assessed a
$1,600 fine. This appeal ensued.
Ineffective Assistance of Counsel
In one issue with multiple subparts, Appellant avers that she received
ineffective assistance of counsel at trial. At the outset, we observe that the record
does not indicate that Appellant filed a motion for new trial alleging ineffective

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assistance of counsel. Accordingly, trial counsel did not testify as to his trial strategy
and decisions.
A. Standard of Review and Applicable Law
Texas courts follow the Strickland two-prong test to determine whether trial
counsel’s representation was so inadequate as to violate a defendant’s Sixth
Amendment right to counsel. See Andrus v. Texas, 590 U.S. 806, 813 (2020)
(per curiam) (citing Strickland v. Washington, 466 U.S. 668 (1984)); State v.
Hradek, No. PD-0083-23, 2024 WL 5059142, at *6 (Tex. Crim. App. Dec. 11,
2024); Hart v. State, 667 S.W.3d 774, 781 (Tex. Crim. App. 2023). First, an
appellant must show that his counsel’s performance was deficient; second, the
appellant must show that the deficient performance prejudiced the defense.
Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland, 466 U.S. at 687. Judicial
review of an ineffective-assistance-of-counsel claim is highly deferential to trial
counsel and avoids using hindsight to evaluate counsel’s actions. Ingham v. State,
679 S.W.2d 503, 509 (Tex. Crim. App. 1984).
For the performance element, we must determine whether Appellant has
shown by a preponderance of the evidence that counsel’s representation fell below
an objective standard of reasonableness. Strickland, 466 U.S. at 687. There is a
strong presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance. Id. at 689. When the record contains no direct evidence of
counsel’s reasons for the challenged conduct, we “will assume that counsel had a
strategy if any reasonably sound strategic motivation can be imagined.” Lopez v.
State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). We “will not conclude [that]
the challenged conduct constituted deficient performance unless the conduct was so

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outrageous that no competent attorney would have engaged in it.” Garcia v. State,
57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
We review the totality of the evidence when evaluating an appellant’s
ineffective-assistance-of-counsel claim. Perez v. State, 310 S.W.3d 890, 894 (Tex.
Crim. App. 2010) (citing Strickland, 466 U.S. at 695). An allegation of ineffective
assistance must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness of counsel. Thompson v. State, 9 S.W.3d
808, 814 (Tex. Crim. App. 1999). Often, the record on direct appeal will not be
sufficient to show that trial counsel’s representation was so deficient and so lacking
as to overcome the presumption that counsel’s conduct was reasonable and
professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
“[T]rial counsel should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107,
111 (Tex. Crim. App. 2003). “[I]f the record does not contain affirmative evidence
of trial counsel’s reasoning or strategy, we presume counsel’s performance was not
deficient.” Johnson v. State, 624 S.W.3d 579, 586 (Tex. Crim. App. 2021); see
Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017) (providing that a claim
for ineffectiveness of counsel “must be firmly founded in the record[,] and the record
must affirmatively demonstrate the alleged ineffectiveness”). A defendant must
overcome the presumption that, under the circumstances, the challenged action could
be considered “sound trial strategy.” Rylander, 101 S.W.3d at 110 (quoting
Strickland, 466 U.S. at 689). Failure to make the required showings of deficient
performance and sufficient prejudice will defeat claims of ineffective assistance. Id.
For the prejudice element, we determine whether there is a reasonable
probability that the outcome would have differed but for counsel’s errors. Wiggins,
539 U.S. at 534; Strickland, 466 U.S. at 694; Hradek, 2024 WL 5059142, at *6. The

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reasonable probability must rise to the level that it undermines confidence in the
outcome of the trial. Isham v. State, 258 S.W.3d 244, 250 (Tex. App.—Eastland
2008, pet. ref’d). “[T]he analysis of the prejudice prong turns on whether the
deficiency made any difference to the outcome of the case.” Walker v. State, 406
S.W.3d 590, 599 (Tex. App.—Eastland 2013, pet. ref’d) (quoting Riley v. State, 378
S.W.3d 453, 458 (Tex. Crim. App. 2012)). “This is a heavy burden which requires
a ‘substantial,’ and not just a ‘conceivable,’ likelihood of a different result.” Id. at
599 (quoting United States v. Wines, 691 F.3d 599, 604 (5th Cir. 2012)); see also
Echols v. State, No. 11-23-00110-CR, 2024 WL 4375220, at *3 (Tex. App.—
Eastland Oct. 3, 2024, no pet.) (mem. op., not designated for publication) (observing
the same). A defendant’s inability to make a showing under either prong defeats a
claim for ineffective assistance. Johnson, 624 S.W.3d at 587; Renfroe v. State, 529
S.W.3d 229, 235 (Tex. App.—Eastland 2017, pet. ref’d).
B. Analysis
We address each of Appellant’s allegations of ineffectiveness in turn.
1. Jury Trial Waiver
Appellant first challenges trial counsel’s decision to proceed with a bench trial
rather than request a withdrawal of Appellant’s written waiver of a jury trial.
A trial court’s decision to grant or deny a request to withdraw a valid jury-
trial waiver1 is discretionary, and the onus would have been on Appellant to show
that granting her request would not: “(1) interfere with the orderly administration of
the business of the trial court; (2) result in unnecessary delay or inconvenience to
witnesses; or (3) prejudice the State.” Sanchez, 630 S.W.3d at 95 (citing Hobbs v.
State, 298 S.W.3d 193, 197–98 (Tex. Crim. App. 2009)).

1
Appellant does not contest the validity of her waiver, nor does she suggest that her waiver was not
expressly, knowingly, or intelligently made. See Sanchez v. State, 630 S.W.3d 88, 94 (Tex. Crim. App.
2021) (requiring that a waiver of jury trial be made expressly, knowingly, and intelligently).

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Here, Appellant appeared at her scheduled plea hearing and expressed a
reluctance to plead guilty, citing her need for an additional surgery that had yet to be
scheduled. The trial court informed Appellant that while she was not required to
plead guilty, she had waived her right to a jury trial and would either need to petition
the court to rescind her waiver or be placed on the court’s bench trial docket. The
trial court cautioned Appellant that because this case had been pending on the court’s
docket for several years and the trial court had already granted Appellant’s twelve
requests for resetting, it was unlikely that it would grant such a request.
While Appellant may have been unprepared to plead guilty that day, we
cannot ascertain from the record or conclude that she desired to proceed with a jury
trial instead of a bench trial. Trial counsel’s reasoning behind proceeding with a
bench trial rather than requesting the withdrawal of Appellant’s jury trial waiver is
not apparent from the record. But considering the video recording of the theft, the
overwhelming evidence of her guilt, and her past similar offenses, we must entertain
the possibility that counsel’s trial strategy was—rather than to depend on a jury to
believe her denial of guilt—to appeal to the trial court for leniency in punishment.
These facts and an apparent and seemingly logical trial strategy consistent therewith
preclude a finding that counsel’s conduct was objectively deficient. See Johnson,
624 S.W.3d at 587; see also Sandoval v. State, 665 S.W.3d 496, 545 (Tex. Crim.
App. 2022), cert. denied, 144 S. Ct. 1166 (2024) (“[A]n appellate court should not
find deficient performance unless the challenged conduct was ‘so outrageous that no
competent attorney would have engaged in it.’” (quoting Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005))).
2. Opening Statement & Closing Argument
Appellant next argues that trial counsel was ineffective when he failed to make
an opening statement and provided a “short, rambling defense.”

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Choosing whether to make an opening statement and choosing what a closing
argument will entail are inherently tactical decisions. See Ex parte Scott, 541 S.W.3d
104, 119 (Tex. Crim. App. 2017) (“Closing arguments involve inherently tactical
decisions that must be tailored to the strategy of the defense based on events that
transpired during trial.”); see also Perkins v. State, No. 11-05-00088-CR, 2007
WL 178234, at *2 (Tex. App.—Eastland Jan. 25, 2007, no pet.) (not designated for
publication) (“Because an opening statement provides the State a preview of the
defense’s strategy, defense counsel may make a tactical decision not to make an
opening statement.”).
Following an opening statement by the State, which itself was very brief,2
Appellant’s trial counsel stated: “Your Honor, we await the burden of proof on the
State to see if they meet the elements of the indictment.” At the conclusion of the
guilt phase of trial, with testimony spanning only twenty pages of the record, both
the State and Appellant delivered short closing remarks. Appellant specifically
argued that the State had failed to meet an element of the offense, namely, the
identity of the owner of the stolen property.
At the end of the punishment phase of trial and during his closing argument,
Appellant’s trial counsel asked the trial court for leniency and to take into
consideration (1) the testimony of Appellant “in regards to her plea of attrition asking
for forgiveness, and the fact that she has turned a corner in her life”—the proof that
she had changed since the theft at Dillard’s in 2019—and (2) the fact that “there has
been no [criminal] involvement, no missing court, no bond violations no nothing

2
The State’s opening statement reads in its entirety as follows:
Your Honor, you will see evidence today showing the Defendant going into Dillard’s
Department Store. Walk into the men’s Polo section and taking various clothing items. It
was all on camera. And she left the store after walking past multiple registers and left
Dillard’s Department Store. And you will see evidence showing that the value of the items
was -- owed more than zero dollars and less than $2,500.00.

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involving crossing the line, and has been behaving since that time period. That is
over four years worth or close to it.” Trial counsel’s decision as to an opening
statement did not fall below an objective standard of reasonableness in this instance,
and albeit brief, we may not second guess trial counsel’s strategy decision to argue
what he did at trial. See Hughitt v. State, 539 S.W.3d 531, 543–44 (Tex. App.—
Eastland 2018), aff’d, 583 S.W.3d 623 (Tex. Crim. App. 2019); Darkins v. State,
430 S.W.3d 559, 570 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (“Whether
to deliver an opening statement is entirely optional.”); see also Taylor v. State,
No. 11-22-00344-CR, 2024 WL 2965190, at *3 (Tex. App.—Eastland June 13,
2024, pet. ref’d) (mem. op., not designed for publication) (“[T]he length of a closing
argument do[es] not necessarily indicate that trial counsel’s assistance was
ineffective.”). Under the circumstances, Appellant has not shown that trial counsel
was deficient in declining to proceed with an opening statement or ineffective in
delivering his closing arguments. See Johnson, 624 S.W.3d at 587.
3. Cross-Examination of Witnesses
Appellant also contends that her trial counsel’s failure to cross-examine either
of the State’s two witnesses constituted ineffective assistance of counsel.
“[C]ross-examination is inherently risky, and a decision not to cross-examine
a witness is often the result of wisdom acquired by experience in the combat of trial.”
Cantu v. State, 678 S.W.3d 331, 353 (Tex. App.—San Antonio 2023, no pet.)
(quoting Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005)); see
also Lara v. State, No. 11-22-00311-CR, 2024 WL 2751289, at *4 (Tex. App.—
Eastland May 30, 2024, pet. ref’d) (mem. op., not designated for publication)
(observing the same). We cannot say that with the overwhelming evidence of
Appellant’s guilt, Appellant’s trial counsel acted without a legitimate trial strategy
or that it fell below an objective standard of reasonableness. Whether to cross-

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examine and how to cross-examine witnesses are matters of defensive trial strategy
that courts are reluctant to second-guess, particularly in the face of a silent record.
See Collier v. State, 528 S.W.3d 544, 547 (Tex. App.—Eastland 2016, pet. ref’d);
see also Sanchez v. State, No. 04-23-00384-CR, 2024 WL 3588596, at *3 (Tex.
App.—San Antonio July 31, 2024, pet. ref’d) (mem. op., not designated for
publication).
Appellant does not explain on appeal what she would have gained by cross-
examining either witness, and it is unclear what purpose would have been served
when the security recording and receipt admitted at trial corroborated the testimony
of both witnesses. See Sanchez, 2024 WL 3588596, at *3. Appellant has not
identified what line of cross-examination, if answered truthfully, would have made
a difference in the outcome of her trial. It is possible that trial counsel did not want
to overemphasize the substantial evidence against Appellant by pursuing
questioning that risked being more harmful than helpful. See also Lara, 2024
WL 2751289, at *4 (“If ineffective, cross-examination can serve to bolster the
credibility of the [adverse] witness and underscore the very points that are sought to
be impeached.” (quoting Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.—
Houston [14th Dist.] 1996, pet. ref’d)). As in this case, when counsel “has had no
opportunity to explain his actions, we will assume a strategic motive . . . and find
counsel deficient only if his conduct was so outrageous that no competent attorney
would have engaged in it or, stated differently, if no reasonable trial strategy could
justify counsel’s actions.” Hart, 667 S.W.3d at 783. Because a reasonable trial
strategy could conceivably justify counsel’s actions, Appellant has not shown that
trial counsel was deficient or ineffective in declining to cross-examine the State’s
witnesses. See id.; see also Bell v. State, No. 11-15-00271-CR, 2017 WL 5013380,
at *3 (Tex. App.—Eastland Oct. 31, 2017, no pet.) (mem. op., not designated for

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publication) (“The absence of trial counsel’s reasoning in conducting cross-
examination precludes a finding that counsel was ‘objectively deficient.’”) (quoting
McFarland, 163 S.W.3d at 754).
4. Objection to Andrea Idith Carr
Appellant next broadly argues that trial counsel should have made an
objection or inquired further into the relationship between the trial court and Carr.
The trial court disclosed the relationship as soon as Carr took the stand and
assured the parties it would not affect his “opinion on the case.” Appellant does not
state what particular objection or line of inquiry would have been appropriate.
See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (“To
successfully assert that trial counsel’s failure to object amounted to ineffective
assistance, the applicant must show that the trial judge would have committed error
in overruling such an objection.”); Munoz v. State, No. 11-13-00139-CR, 2015
WL 4053483, at *5 (Tex. App.—Eastland June 30, 2015, pet. ref’d) (mem. op., not
designated for publication). Moreover, Appellant’s trial counsel could have
reasonably relied on the trial court’s representations that his opinion would not be
impacted by his relationship with the witness’s husband. See Hart, 667 S.W.3d 783;
see also White v. State, No. 02-14-00320-CR, 2015 WL 4599264, at *4 (Tex. App.—
Fort Worth July 30, 2015, pet. ref’d) (mem. op., not designated for publication)
(concluding that the appellant cannot meet his burden to establish ineffective
assistance where trial counsel could “have reasonably credited and relied on the trial
judge’s representations that her association with the complaining witness was
limited and that her sentencing decision would not be impacted by the association”).
Further, if trial counsel’s strategy had been to persuade the trial court to extend
mercy in the punishment phase, then impliedly questioning the trial court’s integrity
and stated neutrality might undermine that strategy. Appellant has not shown that

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trial counsel was deficient or his representation ineffective in this instance. See
Johnson, 624 S.W.3d at 587.
5. Calling Medical Expert Witnesses
Appellant also complains that trial counsel should have presented a medical
professional such as a doctor or nurse, “or even [her] personal injury counsel to
testify about the nature and extent of her injuries, how they would be exacerbated by
a period of incarceration, or what prolonging the surgery or physical therapy she
would not receive while in prison would do for her long-term healing prospects.”
To obtain relief based on an uncalled witness, Appellant must show that the
witness was available to testify, and that the testimony sought would have benefited
her defense. Renfroe, 529 S.W.3d at 235 (citing Ex parte Ramirez, 280 S.W.3d 848,
853 (Tex. Crim. App. 2007)); Dobbins v. State, No. 11-18-00230-CR, 2020
WL 5085020, at *3 (Tex. App.—Eastland Aug. 27, 2020, pet. ref’d) (mem. op., not
designated for publication).
While trial counsel’s decision not to call a witness is not insulated from
appellate review, there is no evidence in the record that any of the witnesses
Appellant proposes were available to testify. See Renfroe, 529 S.W.3d at 235; see
also Zarate v. State, No. 11-17-00260-CR, 2019 WL 4786035, at *3 (Tex. App.—
Eastland Sept. 30, 2019, pet. ref’d) (mem. op., not designated for publication) (“The
failure to call witnesses does not constitute ineffective assistance without a showing
that the witnesses were available to testify and that their testimony would have
benefited [a]ppellant.”). Moreover, we cannot speculate on what her personal injury
attorney could have testified to that would not be hearsay or what a medical witness
would have said about Appellant’s medical state or its effect, if any, on punishment.
See Renfroe, 529 S.W.3d at 235; see also Ramirez, 280 S.W.3d at 853. Appellant
has not shown that trial counsel was deficient or his representation ineffective

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because some unspecified medical expert witness or Appellant’s personal injury
counsel was not called to testify. See Johnson, 624 S.W.3d at 587.
6. Sufficiency of Prior Judgments
Appellant lastly argues that “[e]ven assuming that, given the nature of the
evidence against her, any reasonable jury would have found [her] guilty of the
offense, any competent attorney would have at least tested the sufficiency of the
prior judgments against [her].” But on what basis?
Appellant’s trial counsel stipulated to the veracity of the two prior judgments
of conviction, and authenticated copies of the judgments were admitted into
evidence. Each judgment of conviction included Appellant’s full name, date of
birth, social security number, height and weight, and fingerprints—which is
sufficient to connect Appellant to the prior offenses. See Flowers v. State, 220
S.W.3d 919, 925 (Tex. Crim. App. 2007) (Johnson, J., concurring) (noting that there
exists an “inexhaustive list of factors that might be considered” to sufficiently
connect a defendant to a prior offense, including: “full name , date of birth, Social
Security number, what the prior offense was, the place and date of the prior offense,
the date of conviction”); cf. Mendoza v. State, No. 11-23-00123-CR, 2024
WL 3528561, at *6 (Tex. App.—Eastland July 25, 2024, pet. ref’d) (mem. op., not
designated for publication) (concluding that the State failed to link appellant to the
judgment of conviction where the judgment contained “minimal descriptive
information” and “none of the ‘other’ documents that the State offered to support
the enhancement allegation include any personal descriptors or other information
that identify [a]ppellant—such as his date of birth, social security number,
fingerprints, photographs, signatures, or other identifying information”). In light of
the supporting evidence of the prior judgments found in the record and, in the

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absence of an explanation from trial counsel regarding his trial strategy, we cannot
conclude that his performance was deficient. See Johnson, 624 S.W.3d at 587.
C. Conclusion
Having reviewed the record and Appellant’s individual complaints and
applying the legal presumption that Appellant’s trial counsel’s conduct fell within
the wide range of reasonable representation, we conclude trial counsel’s assistance
was not “so outrageous that no competent attorney would have engaged in it.” See
Sandoval, 665 S.W.3d at 545 (quoting Goodspeed, 187 S.W.3d at 392). We overrule
Appellant’s sole issue. Renfroe, 529 S.W.3d at 235 (failure to make a showing under
either prong of Strickland defeats an ineffective-assistance-of-counsel claim).
This Court’s Ruling
We affirm the judgment of the trial court.

W. BRUCE WILLIAMS
JUSTICE

January 24, 2025
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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