Larry Dewitt Jackson Junior v. the State of Texas

Affirmed and Memorandum Majority and Concurring Opinions filed May 9, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00449-CR

LARRY DEWITT JACKSON, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court
Washington County, Texas
Trial Court Cause No. 18734

MEMORANDUM MAJORITY OPINION

Appellant Larry Dewitt Jackson, Jr., appeals his convictions and concurrent
sentences for count 1, continuous sexual abuse of a minor under the age of 14 (life
imprisonment), and count 2, indecency with a child by exposure, enhanced by a
prior conviction for robbery (20-years imprisonment). In three issues, he (1)
requests that this court abate the proceedings to supplement the record with his
motion for funds to hire a mitigation expert, (2) challenges the trial court’s denial
of that motion, and (3) asserts that he was prejudicially denied effective assistance
of counsel. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged in a two-count indictment with continuous sexual
abuse of a child under 14 years of age, and indecency with a child by exposure. In
each instance the child referred to is Jovanna,1 appellant’s daughter.

Appellant’s case was tried before a Washington County jury, which found
him guilty on both counts. Appellant elected for the trial court to assess
punishment.

The guilt-innocence phase of appellant’s trial

Jovanna was sixteen at the time of trial. When asked why she was in court
to testify, Jovanna answered it was because when she was younger, she was
sexually assaulted by her father. She testified in detail about various sexual acts
her father performed and made her perform beginning when she was nine years
old. She gave vivid accounts of the first incidents occurring in a pool and a shower
when she was nine involving inappropriate touching, later when she was past ten
years, events where her dad would coerce her to perform oral sexual acts in the car
which became “like an every day or every other day type of thing,” and she
described instances at her house where her father would force her to have sex
(vaginal penetration) with him in her room while others were in the house.

Jovanna testified that her father told her to remember his three rules: One,
“don’t tell nobody,” two, only he can do this, and three do everything he says.
Jovanna recalled that appellant gave her those rules when the abuse first began and
after an event when he had sexually abused her, he would remind her of the rules.

1
To protect the complainant’s identity, we have not used her actual name since she was a
minor at the time of the offense. See Tex. R. App. P. 9.8.

2
When she was thirteen years old, she broke the first rule—after experiencing
depression and having thoughts of self-harm, she told her friend why she wanted to
die, and a teacher was informed. The school counselor who was subsequently
notified testified about the reports Jovanna made to her: During Christmas break,
her father came into her room, removed her clothing and her underwear, and asked
her "is this still mine?" The counselor explained that she understood Jovanna was
talking about her private parts. Jovanna was eventually interviewed by a forensic
interviewer and reported the abuse. The interview was videotaped and admitted,
but the trial court excluded the testimony from the forensic interviewer about
details of the sexual abuse after sustaining a best evidence objection.

A detective also sought an interview with appellant who agreed to the
voluntary, non-custodial interview that lasted about three hours. During the
interview appellant was asked to draw a rendition of his penis, which was admitted
at trial over objection by appellant’s trial counsel. The detective testified that
appellant confessed during the interview. Appellant filed a written objection to the
use of his video interview at trial and objected at trial. The trial court also
ultimately admitted the interview.

Appellant’s counsel defended the case by attacking Jovanna’s credibility. On
cross-examination, she admitted to making similar accusations against a cousin.
Appellant’s counsel also presented two witnesses that provided testimony aimed to
contradict specific instances of abuse alleged by the State. One witness testified
that Jovanna did not have a good reputation for being truthful. Appellant also
testified, and consistently denied having any sexual activity with Jovanna and
denied that he provided a confession. The State asked appellant, if he was found
guilty, what should be his punishment.

Q. [State]: “Assuming this jury finds the evidence credible from

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[Jovanna] and all the other witnesses that testified against you, what
should this jury do?
A. [Appellant]: Life without parole.”
The jury returned a verdict of guilty to both counts of the indictment.
Appellant had elected the trial court to assess punishment and the matter was set
for a separate punishment hearing.

Prior to the beginning of the punishment phase, appellant’s trial counsel
asked to address the court and re-urged his previously filed Motion for Funds in
Aid of Defense and requested a continuance to allow him to employ a mitigation
expert. The court denied the motion and gave a running objection to the court’s
ruling to apply for the duration of the punishment phase. Trial counsel remained in
the courtroom throughout the punishment phase and engaged with opposing
counsel and the court when the State offered its exhibits but refused to participate
further based on his objection to the court’s ruling on his motion. Specifically,
when asked to offer an opening statement, cross-examine the State’s only witness,
present evidence, and to make a closing argument, appellant’s counsel declined. In
each instance appellant’s counsel’s protest was grounded upon the trial court’s
denial of his motion for expert assistance. When pronouncing sentence the court
made the following remarks:

THE COURT: “All right. Well, the Court, having heard the evidence,
I will tell you, Mr. Jackson, I also – and you don't have to stand up.
You can stay seated. I very carefully listened to you testify as well,
and when you did, you clearly told the Court what I should do in the
event a jury found you guilty. Your own words were -- I believe you
were asked by the prosecutor what should someone get if they are
convicted of continuous sexual abuse of a child or something to that
effect and your answer was ‘life.’
So on Count 1 the Court is going to order that you be sentenced to life
without parole. On Count 2 I’m going to order that you be sentenced
to 20 years. I’m not going to stack them right now. I think that it’s

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sufficient to run those two concurrent.”

II. ISSUES AND ANALYSIS
A. The record is supplemented; no further abatement is necessary.

In his first issue, appellant seeks an abatement to supplement the appellate
record under Rule 34.5 of the Texas Rules of Appellate Procedure.2 After
submission of the appeal on the briefs, we requested supplementation from the trial
court clerk, obtained the desired portions of the trial court record, and reviewed
those portions of the record. As a result, appellant’s first issue is moot.

B. Did the trial court abuse its discretion in denying appellant’s motion to
request funds for a mitigation expert?
In his second issue, appellant contends the trial court abused its discretion by
denying his motion for expert assistance.

Standard of Review and Relevant Legal Standards

We review the trial court’s ruling for abuse of discretion. Griffith v. State,
983 S.W.2d 282, 287 (Tex. Crim. App. 1998). The State must provide a defendant
with the “basic tools” to present a defense, but it is not required to purchase for an
indigent defendant all the assistance that their “wealthier counterparts might buy.”
Rey v. State, 897 S.W.2d 333, 337 (Tex. Crim. App. 1995) (citing Ake v.
Oklahoma, 470 U.S. 68, 77 (1985)). In determining whether the State must
provide assistance, the courts balance the private interest that will be affected by
the action of the State with the State’s interest that will be affected if the safeguard

2
Though the rules do not prohibit such a request for supplementation in a party’s
appellate brief, the appropriate practice is to make the request in a separate instrument, typically
by letter, earlier than the time of filing the brief (if possible), and to the appropriate clerk. See
e.g., Tex. R. App. P. 34.5(b)(1) (“If a relevant item has been omitted from the clerk’s record, the
trial court, the appellate court, or any party may by letter direct the trial court clerk to prepare,
certify, and file in the appellate court a supplement containing the omitted item.”) (emphasis
added).

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is provided, along with the probable value of the additional procedural safeguards
that are sought and the risk of an erroneous deprivation of the affected interest if
those safeguards are not provided. Rey v. State, 897 S.W.2d at 337 (citing Ake, 470
U.S. at 77); see Busby v. State, 990 S.W.2d 263, 271 (Tex. Crim. App. 1999) (“The
key question appears to be whether there is a high risk of an inaccurate verdict
absent the appointment of the requested expert.”). In practice, we need not
deliberate heavily on the private interest and the public interest, not because they
are unimportant but because they are only marginally case-specific considerations.
Appellant’s interest in the accuracy of his proceeding in which his life or liberty is
at stake, like most criminal defendants, weighs heavily in the analysis. Similarly,
the second factor addresses the State’s concern for judicial economy, but it is not
as substantial as the State's interest in an accurate outcome at trial. See Rey v. State,
897 S.W.2d at 337.

The burden rests on the defendant to show how the expert at issue would
assist in the defense before being entitled to the appointment of the expert. Griffith,
983 S.W.2d at 286-87. In order to make this showing, the defendant must provide
the trial court with information about what evidence will be presented against the
defendant and how the expert will assist the defendant in rebutting such evidence.
Rey, 897 S.W.2d at 341. In doing so, the defendant must offer more than vague,
conclusory, or undeveloped assertions that the requested assistance would be
beneficial. Williams v. State, 958 S.W.2d 186, 192 (Tex. Crim. App. 1997);
Cameron v. State, 630 S.W.3d 579, 597 (Tex. App.—San Antonio 2021, no pet.).
Courts have concluded a defendant did not make such a showing if the defendant
failed to (1) support the motion with affidavits or other evidence in support of the
defensive theory, (2) explain the theory or why expert assistance would be helpful
in establishing it, or (3) show there was a reason to question the State's expert and

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proof. Rey, 897 S.W.2d at 341 (collecting cases).

Appellant’s complaint is based on the record developed after appellant had
been found guilty, when on the day of and just before the commencement of the
punishment hearing, his trial counsel orally re-urged the motion:

MR. DAY: Yes, Judge. The Defense is not ready to proceed with this
hearing at this time. On March 16, we filed a Motion for Funds in Aid
of Defense which was denied. The purpose of that motion was to
enable me to employ and consult with a mitigation specialist, and so
at this time I would reurge that motion for the reasons stated therein,
request a continuance, and allow me to employ and consult with a
mitigation specialist.
THE COURT: Response from the State?
MS. HAEVISCHER: I believe that that would have been, as I
understand it correctly, a proper pretrial matter, and as we have
clearly made it past the pretrial date, it has not been raised in a timely
manner.
THE COURT: I believe that was presented to Judge Campbell, and
did he -- from what I saw going through the file throughout the trial,
he ruled on it and denied it, as you said.
MR. DAY: No, ma’am, you ruled on it.
THE COURT: Oh, I ruled on it?
MR. DAY: He gave it to you and you denied the motion.
THE COURT: Oh, I denied it.
MR. DAY: Yes, ma’am.
MR. DAY: I believe it’s sealed in one of the --
THE COURT: Oh, it’s one of those sealed ones? Okay.
Well, I know I studied it very carefully at the time, and I believe the
reason I denied it will stand and I will continue to deny it and we will
move forward.
MR. DAY: May I have a running objection then, Judge?
THE COURT: Yes, sir. Absolutely.
MR. DAY: All right. Rather than cloaking the Court with constant
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objections.
THE COURT: Sure. I understand. So but it’s been ruled on and that
ruling will stand.
The oral re-urging of the motion consists of nothing more than appellant’s
counsel’s statement that the purpose of the motion was to enable counsel “to
employ and consult with a mitigation specialist,” and the court’s open-court denial
of the motion as re-urged. That oral motion is devoid of any assertion of how the
requested assistance would be beneficial. See Rey, 897 S.W.2d at 341. Thus, to the
extent appellant’s second issue is based on the oral re-urging of the motion for
funds, the issue is overruled. However, after submission of the appeal on the
briefs, the record was supplemented with the original written motion. We
therefore consider appellant’s second issue as it pertains to the original written
motion.

The two-page Ex Parte Motion for Funds in Aid of Defense filed in the trial
court contained six numbered paragraphs. The first paragraph requests that the
motion and any order on the motion be sealed “after consideration by submission
and disposition by the Court.” The second paragraph sets out plainly the
accusations against appellant. The third paragraph asserts that appellant had
already been deemed indigent by the court. The fourth paragraph identifies the
witness, “Dr. JUANDALYN TAYLOR, Ph.D., J.D. of Taylor Advocacy Group” as
“a mitigation specialist.” It sets out the details of the request as follows:

Defendant requests the Court to appoint Dr. TAYLOR as his
mitigation specialist to assist in the preparation of the defense and trial
of the punishment phase of this case, and that the Court order the
County Auditor to pay the costs of such services. Dr. TAYLOR
estimates that $4,000 should be sufficient to compensate her for the
services contemplated by this Motion.
The fifth paragraph titled “Employment Necessary”, an ideal place to set out

8
appellant’s argument, merely states the following:

Defendant seeks to employ Dr. TAYLOR as both a consulting and
testifying expert for Defendant. Dr. TAYLOR is a necessary witness
at the trial of this case. Dr. TAYLOR’s curriculum vitae and
qualifications can be provided to the Court if necessary.
The sixth and final paragraph without further explanation provides the court
with citations to the legal authority for the request.

The written motion, as compared to the record of the short oral rehearing of
the motion, at least illustrates a timely request by appellant’s trial counsel for a
particular expert for a particular purpose (i.e., “to assist in the preparation of the
defense and trial of the punishment phase of this case” presumably on matters
pertaining to mitigation, as he is identified as a “mitigation specialist”). However,
the motion does not explain or justify any link between Dr. Taylor’s expertise and
any needs of the case. The motion contained no affidavit or other evidence in its
support and beyond the subsequent rehearing, there is no record of an evidentiary
hearing on the motion, as appellant did not request one. Under the applicable
standard of review, we cannot find on this record—lacking any showing that
appellant carried his burden of demonstrating a need for an expert—that the court
abused its discretion in denying the Ex Parte Motion for Funds in Aid of Defense.
See Cameron v. State, 630 S.W.3d at 598.

We therefore overrule appellant’s second issue.

C. Did appellant suffer prejudicial ineffective assistance of counsel such that
he is entitled to a new trial, on punishment or otherwise?
In appellant’s third issue, appellant complains that his trial counsel denied
him effective assistance of counsel.

He contends various instances in the record illustrate his counsel’s deficient
performance: when presenting appellant’s request to retain new counsel, during a
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suppression hearing, and during punishment. As to the latter, appellant contends
that his counsel “completely abandoned” his representation when he “refused to
participate in appellant’s punishment hearing based on the trial court’s denial of a
motion for funding to provide expert mitigation assistance.”

Evaluating Ineffective Assistance and the Goodspeed Standard

Both the United States Constitution and the Texas Constitution guarantee an
accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art.
I, § 10; see also Tex. Code Crim. Proc. Ann. art. 1.051 (Supp.). This right
necessarily includes the right to reasonably effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945
S.W.2d 830, 835 (Tex. Crim. App. 1997). To prevail on his ineffective-assistance-
of-counsel claims, appellant must prove (1) counsel’s representation fell below the
objective standard of reasonableness, and (2) a reasonable probability that but for
counsel’s alleged deficiency the result of the proceeding would have been
different. See Strickland, 466 U.S. at 687–88; see also Hernandez v. State, 726
S.W.2d 53, 55 (Tex. Crim. App. 1986) (applying Strickland standard to
ineffective-assistance claims under the Texas Constitution). In considering an
ineffective-assistance claim, we indulge a strong presumption that counsel’s
actions fell within the wide range of reasonable professional behavior and were
motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994). To defeat this presumption, any allegation of
ineffectiveness must be firmly grounded in the record so that the record
affirmatively shows the alleged ineffectiveness. Prine v. State, 537 S.W.3d 113,
117 (Tex. Crim. App. 2017).

Trial counsel generally should be given an opportunity to explain counsel’s

10
actions before the court finds counsel ineffective. Id. In most cases, a direct appeal
proves an inadequate vehicle for raising an ineffective-assistance claim because the
record generally stands undeveloped and cannot adequately reflect the motives
behind trial counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.
Crim. App. 2003); Thompson, 9 S.W.3d at 813–14. In the face of a silent record,
we cannot know trial counsel’s strategy, so we will not find deficient performance
unless the challenged conduct is “so outrageous that no competent attorney would
have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005); Hart v. State, 667 S.W.3d 774, 783 (Tex. Crim. App. 2023) (“Under these
circumstances, wherein counsel has had no opportunity to explain his actions, we
will assume a strategic motive, if one can be ascertained, 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.”).

A sound trial strategy may be executed imperfectly, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Instead, we
“review the totality of the representation and the circumstances of each case
without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011). Though counsel’s conscious decision not to, for example, object to
evidence is not insulated from review, unless the defendant overcomes the
presumption that counsel’s actions were based in sound trial strategy, counsel
generally will not be found ineffective. Ex parte Flores, 387 S.W.3d 626, 633
(Tex. Crim. App. 2012).

Whether trial counsel was ineffective prior to the punishment phase
Though his predominate complaint relates to his trial counsel’s conduct at

11
the punishment hearing which we will more significantly address below, because
we review the complaints chronologically, we first briefly address the complaints
to his trial counsel response to his open-court request to hire a new lawyer and his
trial counsel’s statements at a suppression hearing about missing a holiday with his
family.

Approximately a year and a half before trial, after appellant’s trial counsel
had begun working on the case, appellant reported to the court that due to his belief
that he anticipated receipt of personal financial resources he planned to hire his
own lawyer. Despite appellant’s expressed desire, appellant’s retention of counsel
with his own funds remained uncertain so that State urged the court to keep
appellant’s trial counsel on the case. When asked by the court to respond,
appellant’s trial counsel responded that he learned of appellant’s desire to hire his
own counsel the day of the hearing, and provided the following response:

So I’ve already got 15 or more hours in this case and for me to stay on
it and get ready for a December trial, when he’s going to hire his own
lawyer, is wasteful of my time and I would have to neglect other areas
of my practice. So I guess what I’m saying is, I understand I’ve been
fired and I don’t think I can take any more action, but if the Court
chooses to leave me on, then I hate to –
Appellant targets specifically his trial counsel’s expression that he was
“worried about neglecting other areas of his practice” which appellant concludes,
without further explanation, “demonstrates trial counsel’s ineffectiveness.”

Similarly, appellant also points to his trial counsel’s statement at a
suppression hearing during the guilt-innocence phase, wherein he stated that “I
prepared this objection on Memorial Day instead of being home with my
grandchildren, so we are all working late on this case.” Again, without significant
explanation, appellant suggests that his trial counsel’s expressed concern for his
own personal life, “demonstrates trial counsel’s ineffectiveness”.
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From our review of the record including the context in which each of these
two complained of instances occurred, neither instance illustrates any appreciable
form of neglect in his counsel’s representation. At best, these are two instances of
an attorney under reasonable circumstances relating a desire to manage his docket
efficiently and a remark that he has sacrificed his family time for his work on
appellant’s case. At worst, these isolated instances are as appellant describes them,
two expressions of concern made to the court about his other cases and personal
life, i.e., matters other than his case. Appellant has not provided, nor can we find
after reasonable research, any legal authority to demonstrate how these particular
instances are comparable with neglectful conduct that would form the basis of an
ineffective assistance claim. Neither expression amounts to evidence of his
counsel’s neglect, and thus both fail under the first prong of the Strickland test.

Whether trial counsel was ineffective at the punishment phase

Finally, we address appellant’s complaint that his “[t]rial counsel completely
abandoned his representation of appellant for the punishment hearing,” when in
four instances during the punishment hearing his counsel declined to participate
“for the reasons and objections earlier stated.” That is, when the court asked
counsel first if he would provide an opening statement, then, if he would
cross-examine the state’s sole witness, then, if he would present evidence, and
finally if he would provide a closing statement, appellant’s trial counsel declined
each time, resting on his objection to the punishment hearing proceeding forward
because the court declined to provide funds for expert assistance.

Appellant contends that the record has preserved appellant’s trial counsel’s
strategy for not participating, that we are to accept appellant’s stated reason for not
participating as evidence of his strategy, and that alternatively, no sound trial
strategy would justify his conduct. We disagree on both counts. First, the record of

13
appellant’s trial counsel’s passing on the court’s invitations to participate at various
stages operates as an exhibition of counsel’s unusual conduct not an explanation.
The record remains silent why appellant’s counsel persisted in re-urging an
objection he had already timely made.

Appellant characterizes trial counsel’s conduct as “abandonment.” Trial
counsel did not declare an intention to cease representing appellant at any point.
There is no indication his counsel ever left the proceedings or otherwise was not
present. Despite saying that he refused to “take part” at several instances of the
punishment hearing, he continued to respond to the court, declaring “no objection”
to the State’s reintroduction of exhibits, and made clear it was a protest to the
court’s prior ruling; there is no indication he ever disengaged from listening to the
court, the State or the witness during any of the punishment hearing. Rather, each
time he stated he refused to take part or participate, he re-urged his objection.

Because appellant’s trial counsel continued in his representation of appellant
at the hearing and remained engaged, we acknowledge that he could have, but
choose not to, participate in parts of the punishment hearing.

Does the record establish that trial counsel was ineffective at the punishment
hearing for not presenting mitigating evidence?
Appellant complains trial counsel did nothing to humanize him or allow the
trial court to accurately gauge his moral culpability. Yet, appellant concedes that
there is no evidence “what the mitigation evidence might be,” and no evidence
showing whether trial counsel “attempted to investigate any mitigation evidence.”

Merely suggesting that there may have been mitigating evidence is not
sufficient. Without establishing the existence of any favorable evidence that
available witnesses would have provided, appellant cannot demonstrate ineffective
assistance based on a failure to present mitigating evidence. See Bone, 77 S.W.3d

14
at 834-35 (trial counsel was not ineffective for failing to produce more mitigating
evidence when the record did not show that other mitigating evidence existed);
Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (when appellant did
not explain what mitigating evidence trial counsel should have proffered, court
“cannot possibly find that a failure to proffer such evidence constituted ineffective
assistance”); Robinson v. State, 514 S.W.3d 816, 824 (Tex. App.—Houston [1st
Dist.] 2017, pet. ref’d) (“A defendant complaining about trial counsel’s failure to
call witnesses must show the witnesses were available and that he would have
benefitted from their testimony.”); see also Silva v. State, No. 14-19-00720-CR,
2021 WL 970560, at *4-5 (Tex. App.—Houston [14th Dist.] Mar. 16, 2021, no
pet.) (mem. op., not designated for publication) (“Here, the record does not show
that Villarreal was available to testify at Appellant’s punishment hearing. The
record is also silent as to counsel’s reasons for failing to call Villarreal at the
punishment hearing. Therefore, Appellant’s argument fails to rebut the strong
presumption in favor of effectiveness of counsel.”).

Appellant had already testified during the guilt/innocence phase about
matters which might have mitigated his punishment. He talked about his
occupation. He testified about his previous good behavior in prison which allowed
him to leave to work during the week. He successfully completed his parole. He
talked about his love and caring for his invalid wife. Appellant’s trial counsel
could have reasonably believed that all the mitigating evidence available from
appellant was already before the judge, and strategically recommended appellant
not testify rather risk exposing appellant to further damaging cross-examination,
particularly about appellant’s prior statement about the punishment.

Presuming that trial counsel had thoroughly investigated and discovered no
useful mitigation evidence existed using his own efforts, a reasonable strategy

15
could have been to persist in the objection, draw attention to the court’s adverse
ruling on mitigation evidence, present no mitigation evidence and exclusively
emphasize the court’s adverse ruling throughout the hearing up to the moment of
the court’s decision, in an effort to prompt the court to compromise its sentence
assessment against its own responsibility for the lack of mitigation evidence.

Does the record establish trial counsel was ineffective for not providing an
opening statement, cross-examining the witness, or providing a closing
statement at the punishment hearing?

After the State essentially declined an opening statement (“No, Your
Honor,” then merely indicating it would later reoffer the evidence admitted in the
previous phase), trial counsel refused to give an opening statement, “for the
objections and reasons earlier stated.” Trial counsel’s decision to decline could
comport with a reasonable trial strategy. See Darkins v. State, 430 S.W.3d 559,
570 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). Counsel’s failure to make
an opening statement was not conduct “so outrageous that no competent attorney
would have engaged in it.” See id., citing Goodspeed, 187 S.W.3d at 392; see also
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (stating that not
making opening statement during punishment phase, among other alleged errors,
alone is not sufficient to show ineffective assistance in face of silent record).

The State only called the victim to testify during the punishment phase. Trial
counsel reasonably could have determined additional cross-examination of the
child victim could have caused more damage than benefit. See Navarro v. State,
154 S.W.3d 795, 799 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). Trial
counsel had already attacked the victim’s credibility: he had already
cross-examined the victim during guilt/innocence, had called an alibi witness as to
one alleged incident to contradict the State’s case, presented evidence about

16
victim’s use of pornography and sending naked photos to boys, and called two
relatives who testified the victim was not truthful. Appellant has not overcome the
strong presumption that trial counsel’s decisions regarding cross-examination fall
within the wide range of reasonable professional assistance. See id.

We next consider whether appellant’s trial counsel’s waiver of closing
argument constituted ineffective assistance. “[C]ounsel has wide latitude in
deciding how best to represent a client, and deference to counsel’s tactical
decisions in his closing presentation is particularly important because of the broad
range of legitimate defense strategy at that stage.” Yarborough v. Gentry, 540 U.S.
1, 5–6 (2003). When the court asked for “any closing remarks?”, the State briefly
took the chance to reiterate appellant’s own testimony - “I can agree with Mr.
Jackson on one thing that he said in that entire trial; and that is, if this jury found
him guilty, he deserves no less than life without parole,” and thus asked for the
maximum punishment and asked the court to consider stacking the sentences.
Then, appellants’ trial counsel declined to make closing argument, again resting on
his objection. Courts have observed that waiving closing argument can serve as a
reasonable trial strategy. See Salinas v. State, 773 S.W.2d 779, 783 (Tex. App.—
San Antonio 1989, pet. ref’d). In this case, we presume it to be a not unreasonable
trial strategy to decline to give a closing argument and thus precluding the State
from offering any additional arguments in rebuttal.

Totality of the Representation

When evaluating a claim of ineffective assistance, appellate courts look to
the totality of the representation and the circumstances of each case. Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Trial counsel vigorously
defended appellant both before and during trial. Even presuming some fault in

17
appellant’s counsel’s decision making at the punishment phase,3 having reviewed
the entire record, including his pretrial, guilt/innocence and punishment phase
representation, we conclude any failure in his conduct at punishment was not
enough to render his total representation ineffective. See Okonkwo v. State, 398
S.W.3d 689, 693 (Tex. Crim. App. 2013) (stating that judicial evaluation of
ineffective-assistance claims turns on "all the circumstances" and observing that
act or omission by counsel that is unreasonable in one case may be reasonable in
another one).

Having found appellant’s ineffective assistance complaint fails under the
first prong of the Strickland test, we overrule his third issue.

III. CONCLUSION

Having determined appellant’s first issue moot and having overruled the
remaining issues, we affirm the trial court’s judgments.

/s/ Randy Wilson
Justice

Panel consists of Justices Jewell, Spain, and Wilson. (Spain, J., concurring).
Do not publish — Tex. R. App. P. 47.2(b)

3
We should be wary of holding that refusing to offer opening and closing arguments and
refusing to cross-examine witnesses or offer mitigation witnesses is per-se ineffective. Were that
the case, trial counsel could always elect to “refuse to participate” following some adverse
ruling, see what result is obtained, and, if dissatisfied with that result, get a second bite at the
apple.

18