Lamar Deon Harris v. the State of Texas

NO. 12-24-00134-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LAMAR DEON HARRIS, § APPEAL FROM THE 114TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Lamar Deon Harris appeals his conviction for possession of between four and two hundred
grams of methamphetamine with intent to deliver. In one issue, Appellant argues that he received
ineffective assistance of counsel at trial. We affirm.

BACKGROUND
Appellant was charged by indictment with possession of between four and two hundred
grams of methamphetamine with intent to deliver and pleaded “not guilty.” The indictment further
alleged that Appellant had two, prior, felony convictions. The matter proceeded to a jury trial.
The record of Appellant’s trial reflects that after observing multiple traffic violations,
officers conducted a routine traffic stop of a vehicle within the City of Tyler, Texas in the area near
the intersection of Chandler Highway and Loop 323. Appellant was the passenger in the vehicle.
The driver ultimately was arrested for driving while intoxicated. During the ensuing search of the
vehicle, officers discovered a plastic baggie containing numerous pills in the front, passenger door
panel. When confronted with the officers’ discovery of the pills and asked if they belonged to him
or the driver, Appellant stated, “They’re mine.” The pills later were determined to contain
methamphetamine. The baggie and pills were determined to have a gross weight of 28.889 grams,
and the tested sample of the pills weighed 4.45 grams.
Following the presentation of evidence and argument of counsel, the jury found Appellant
“guilty” as charged. After approving an agreement between the State and Appellant regarding
Appellant’s punishment, the trial court sentenced Appellant to imprisonment for thirty-five years.
This appeal followed.

INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue, Appellant argues that his trial counsel was ineffective due to his failure to
object to the State’s failure to prove that venue was proper in Smith County, Texas.
We examine claims of ineffective assistance of counsel under the standard set forth in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Hernandez v.
State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986); Emo-Odunze v. State, No. 14-14-00601-CR,
2016 WL 792504, at *5 (Tex. App.–Houston [14th Dist.] Mar. 1, 2016, pet. ref’d) (mem. op., not
designated for publication). The first step of the Strickland analysis requires the appellant to
demonstrate that trial counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To
satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be
ineffective assistance and affirmatively prove that they fell below the professional norm of
reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The
reviewing court will not find ineffectiveness by isolating any portion of trial counsel’s
representation but will judge the claim based on the totality of the representation. See Strickland,
466 U.S. at 695, 104 S. Ct. at 2069.
To satisfy the Strickland standard, an appellant also is required to show prejudice from the
deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.
App. 1999). To establish prejudice, an appellant must prove that but for counsel’s deficient
performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at
694, 104 S. Ct. at 2068.
In any case considering the issue of ineffective assistance of counsel, we begin with the

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strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994). We must presume counsel’s actions and decisions were reasonably professional
and were motivated by a sound trial strategy. See id. Before being condemned as unprofessional
and incompetent, defense counsel should be given an opportunity to explain his or her actions. See
Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). An appellant has the burden of
rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
did. See id. He cannot meet this burden if the record does not affirmatively support the claim.
See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct
appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State,
841 S.W.2d 928, 932 (Tex. App.–Corpus Christi 1992, pet. ref’d, untimely filed) (inadequate
record to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d 265, 266 (Tex.
App.–Amarillo 1998, pet. ref’d) (inadequate record for ineffective assistance claim, citing
numerous other cases with inadequate records to support ineffective assistance claim). A record
that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an
ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–Houston [1st Dist.]
1994, pet. ref’d). Thus, absent a properly developed record, an ineffective assistance claim usually
must be denied as speculative, and, further, such a claim cannot be built upon retrospective
speculation. Bone, 77 S.W.3d at 835.
Therefore, when the record is silent as to counsel’s strategy, we will not conclude that the
defendant received ineffective assistance unless the challenged conduct was “so outrageous that
no competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). Rarely will the trial record contain sufficient information to permit a reviewing
court fairly to evaluate the merits of such a serious allegation.
A sound trial strategy may be imperfectly executed, but the right to effective assistance of
counsel does not entitle a defendant to errorless or perfect counsel. See Robertson v. State, 187
S.W.3d 475, 483 (Tex. Crim. App. 2006). “[I]solated instances in the record reflecting errors of
omission or commission do not render counsel’s performance ineffective, nor can ineffective
assistance of counsel be established by isolating one portion of trial counsel’s performance for
examination.” McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled on
other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994). Moreover, “[i]t is not
sufficient that the defendant show, with the benefit of hindsight, that his counsel’s actions or

3
omissions during trial were merely of questionable competence.” Mata v. State, 226 S.W.3d 425,
430 (Tex Crim. App. 2007). Rather, to establish that counsel’s acts or omissions were outside the
range of professionally competent assistance, an appellant must show that counsel’s errors were
so serious that counsel was not functioning as counsel. Patrick v. State, 906 S.W.2d 481, 495 (Tex.
Crim. App. 1995).
Failure to Meet First Prong of Strickland
In the instant case, Appellant asserts that his trial counsel acted deficiently by failing to
object to the State’s failure to prove venue in Smith County, Texas and such failure to object and
preserve the error for appeal resulted in the presumption that venue was proved at trial. See TEX.
R. APP. P. 44.2(c)(1). However, Appellant failed to file a motion for new trial after his conviction,
and, as a result, the record is silent regarding the reasons for his counsel’s failure to object.
Appellant’s claim is based on his trial counsel’s failure to act, however the record is not
sufficiently developed to evaluate the alleged failure to act because neither his counsel nor the
State have been given an opportunity to respond to the allegation. See Menefield v. State, 363
S.W.3d 591, 593 (Tex. Crim. App. 2012). We reiterate that trial counsel normally should be
afforded an opportunity to respond for the alleged failing prior to being deemed ineffective. See
Mata, 226 S.W.3d at 430–32; Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).
Nonetheless, Appellant argues that no reasonable trial strategy exists for his trial counsel’s
failure to object. However, it is not unreasonable to conclude that trial counsel may have known
venue was appropriate in Smith County 1 and that any deficiency in the State’s evidence could have
been cured by testimony of a police officer present at the time of the traffic stop. See, e.g., Eme-
Odunze, 2016 WL 792504, at *6. Therefore, trial counsel may have chosen to employ a strategy
of focusing his efforts on more persuasive arguments, such as the constitutionality of the search
that led to the discovery of the controlled substances. 2 See, e.g., id. (citing Atwood v. State, 120
S.W.3d 892, 895 (Tex. App.–Texarkana 2003, no pet.) (holding “it is not unreasonable to conclude
it was with sound professional judgment that [defendant’s] counsel considered the evidence of

1
As set forth above, the record reflects that the traffic stop occurred within the city limits of Tyler, Texas.
Tyler is the county seat of Smith County, Texas. See https://www.britannica.com/place/Tyler. The City of Tyler’s
boundaries exist entirely within Smith County. See https://www.tylertexasonline.com/tyler-texas-maps.htm;
https://www.txdot.gov/content/dam/docs/maps/city/travel-map-tyler.pdf.
2
The record reflects that Appellant’s trial counsel filed a pretrial motion to suppress the evidence on this
basis.

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venue sufficient and chose, instead, to focus on more persuasive evidence in attempting to bolster
[defendant’s] claim that he was not guilty of the charged offense”)). Additionally, trial counsel
could have believed that objecting to the venue evidence only would have served to distract the
jury from more substantive evidence favorable to Appellant. See Eme-Odunze, 2016 WL 792504,
at *6 (citing (citing Atwood, 120 S.W.3d at 895 (holding “[a]s a matter of trial strategy, well within
the norms of professional competence, counsel may well have believed that the requirements of
venue were satisfied and that pursuing the issue might only serve to distract the court from
evidence more favorable to his client”)). Therefore, we conclude that Appellant’s trial counsel’s
failure to object to proof of venue is not the type of omission that is “so outrageous that no
competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392.
In sum, Appellant failed to show his trial counsel’s representation was deficient. Thus, we
hold that he has not satisfied the first prong of the Strickland test. Appellant’s sole issue is
overruled.

DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

JAMES T. WORTHEN
Chief Justice

Opinion delivered November 27, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 27, 2024

NO. 12-24-00134-CR

LAMAR DEON HARRIS,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1707-23)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.

James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.