David Lyon Willis v. the State of Texas

NO. 12-22-00204-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVID LYON WILLIS, § APPEAL FROM THE 87TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
David Lyon Willis appeals his conviction for indecency with a child. In his sole issue,
Appellant alleges that trial counsel provided ineffective assistance during the punishment phase of
trial. We affirm.

BACKGROUND
Appellant was charged by indictment with indecency with a child by contact, a second-
degree felony. 1 Before trial, Appellant elected to have the jury assess his punishment in the event
of a conviction. The State filed notice of its intent to seek enhancement of Appellant’s punishment,
in which it alleged that Appellant was twice previously convicted of indecency with a child by
contact. The notice stated that if the jury should find the enhancements “true,” the trial court must
impose a sentence of life imprisonment. The jury found Appellant “guilty,” and the State agreed
to allow Appellant to change his election regarding punishment and instead have the trial court
assess punishment because “his previous sexual abuse of a child case makes this an automatic life
sentence[.]”
When the enhancement allegations were read aloud and the trial court asked Appellant how
he pleaded to the enhancement allegations, Appellant’s counsel stated, “my client will plead true

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See TEX. PENAL CODE ANN. § 21.11(a)(1), (d) (West 2019).
to the enhancements.” The State introduced into evidence a penitentiary packet to prove
Appellant’s prior convictions, and the prosecutor stated, “because the prior enhancements were of
a sexual nature with a child, that means that this . . . is an automatic life sentence.” When the trial
judge noted that Appellant pleaded “true” to the enhancement allegations, no objection was made.
The trial judge assessed Appellant’s punishment at life imprisonment. This appeal followed.

INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue, Appellant contends he received ineffective assistance of counsel during
the punishment phase of trial. Specifically, Appellant argues that counsel did not inform him that
the trial court could only sentence him to life imprisonment, counsel pleaded “true” to the
enhancement allegations on Appellant’s behalf rather than Appellant pleading “true” himself, and
counsel did not ensure that Appellant’s plea of “true” was intelligently and voluntarily made.
Appellant argues that he “may have had a defense to the enhancements[,]” but was not given any
opportunity to present a defense.
Standard of Review and Applicable Law
In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test 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). To
prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) trial
counsel’s representation was deficient, and (2) the deficient performance prejudiced the defense
to the extent that there is a reasonable probability that the result of the proceeding would have been
different but for trial counsel’s deficient performance. Strickland, 466 U.S. at 687, 694, 104 S.
Ct. at 2064, 2068. An appellant must prove both prongs of Strickland by a preponderance of the
evidence. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Failure to make the required
showing as to either prong defeats an appellant’s ineffectiveness claim. Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999).
To establish deficient performance, an appellant must show that trial counsel’s
representation fell below an objective standard of reasonableness under prevailing professional
norms. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064-65; Salinas v. State, 163 S.W.3d
734, 740 (Tex. Crim. App. 2005). “This requires showing that [trial] counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

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Amendment.” Strickland., 466 U.S. at 687, 104 S. Ct. at 2064. To establish prejudice, an
appellant must show that there is a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been different. Id., 466 U.S. at 694, 104 S.
Ct. at 2068. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.
We must begin with the strong presumption that counsel was effective, and we must
presume that counsel’s actions and decisions were professional and were motivated by sound trial
strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). “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 v. State, 77 S.W.3d 828,
833 (Tex. Crim. App. 2002). This deferential standard applies to alleged ineffective assistance
that occurs during the punishment phase. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex.
Crim. App. 1999). An appellant must overcome the presumption that, under the circumstances,
the challenged actions might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104
S. Ct. at 2065; Tong, 25 S.W.3d at 712.
“Any allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813. When,
as here, no record focusing on trial counsel’s conduct was developed at a hearing on a motion for
new trial, it is extremely difficult to show that counsel’s performance was deficient. See Bone, 77
S.W.3d at 833; Thompson, 9 S.W.3d at 814. Absent an opportunity for trial counsel to explain
the conduct in question, we will not find deficient performance 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) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.
Crim. App. 2001)).
Analysis
As discussed above, the State’s notice of intent to seek enhancement stated that if the
enhancements were found to be “true,” Appellant’s sentence would automatically be life
imprisonment. After Appellant pleaded “true,” the prosecutor again stated that Appellant would
automatically receive a life sentence because the prior enhancements involved sexual conduct with
a child. The record does not affirmatively demonstrate that Appellant was not informed about the
consequences of pleading “true” to the enhancement allegations, nor does it affirmatively

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demonstrate that Appellant might have asserted defenses to the enhancement allegations. See
Thompson, 9 S.W.3d at 813; see also Bone, 77 S.W.3d at 833.
Additionally, Article 27.13 of the Texas Code of Criminal Procedure, which requires that,
in felony cases, a defendant must plead “guilty” or “nolo contendere” in person, does not apply to
pleas of “true” to enhancement paragraphs. Tindel v. State, 830 S.W.2d 135, 136 (Tex. Crim.
App. 1992); see TEX. CODE CRIM. PROC. ANN. art. 27.13 (West 2006). Appellant was present in
open court when the State read the enhancement allegations and the trial court asked for the plea,
and his attorney possessed authority to act on his behalf and to respond to inquiries by the trial
court. See Tindel, 830 S.W.2d at 136 (upholding plea to enhancement allegation made by counsel
on defendant’s behalf).
The record does not affirmatively demonstrate that counsel was deficient when he pleaded
“true” to the enhancement allegations on Appellant’s behalf. See id.; Thompson, 9 S.W.3d at 813;
see also TEX. CODE CRIM. PROC. ANN. art. 27.13. In addition, the record does not affirmatively
demonstrate that defense counsel failed to ensure that Appellant pleaded “true” to the
enhancements intelligently and voluntarily. See Thompson, 9 S.W.3d at 813. Appellant has not
rebutted the presumption that trial counsel’s actions and decisions were reasonably professional
and motivated by sound trial strategy. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see
also Tong, 25 S.W.3d at 712; Thompson, 9 S.W.3d at 813. Because the record does not
demonstrate that counsel’s performance was deficient, Appellant has failed to satisfy the first
prong of Strickland. See Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068; Goodspeed,
187 S.W.3d at 392; Tong, 25 S.W.3d at 712; Thompson, 9 S.W.3d at 813. Because Appellant
failed to demonstrate the first prong of Strickland, we need not address the second prong. See
TEX. R. APP. P. 47.1; Thompson, 9 S.W.3d at 813. We overrule issue one.

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

JAMES T. WORTHEN
Chief Justice

Opinion delivered April 20, 2023.
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

APRIL 20, 2023

NO. 12-22-00204-CR

DAVID LYON WILLIS,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 87th District Court
of Anderson County, Texas (Tr.Ct.No. 87CR-21-34861)

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.