Russell Dale Ramsey v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00179-CR

RUSSELL DALE RAMSEY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 110th District Court
Briscoe County, Texas
Trial Court No. 1247, Honorable William P. Smith, Presiding

January 27, 2025
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Russell Dale Ramsey, was convicted by a jury of aggravated assault

with a deadly weapon.1 The jury assessed his punishment at fifteen years’ incarceration

and a $5,000 fine. By his sole issue on appeal, Appellant contends that he was denied

the effective assistance of counsel during punishment because counsel failed to present

1 See TEX. PENAL CODE ANN. § 22.02(a).
any mitigating evidence even though the record shows that such mitigation evidence

existed. We affirm the trial court’s judgment.

BACKGROUND

Because Appellant’s sole issue challenges the effectiveness of his appointed

counsel at punishment, we will limit our discussion of the facts relevant to that issue to

our analysis below.

After a jury found Appellant guilty of one count of aggravated assault with a deadly

weapon, the trial proceeded to punishment. During punishment, the State retendered all

evidence it offered during the guilt-innocence portion of the trial. Defense counsel,

however, did not offer any mitigation evidence. The jury returned a sentencing verdict of

fifteen years’ incarceration and a $5,000 fine.

RELEVANT LAW

The Sixth Amendment guarantees a criminal defendant the effective assistance of

counsel. U.S. CONST. amend. VI.; Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App.

2017). To establish a claim based on ineffective assistance, an appellant must show that

(1) his counsel’s representation fell below the objective standard of reasonableness, and

(2) there is a reasonable probability that but for counsel’s deficient performance, the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Nava v. State, 415 S.W.3d 289, 307−08

(Tex. Crim. App. 2013). In other words, an appellant bears the burden to show that his

trial counsel’s performance was deficient and that he was prejudiced by the deficiency.

State v. Gutierrez, 541 S.W.3d 91, 98 (Tex. Crim. App. 2017). A failure to make a showing
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under either Strickland prong defeats a claim for ineffective assistance. Rylander v. State,

101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (en banc). Both prongs need not be

examined on review if one cannot be met. Turner v. State, 528 S.W.3d 569, 577 (Tex.

App.—Texarkana 2016, no pet.) (citing Strickland, 466 U.S. at 697).

In reviewing a claim of ineffective assistance, we must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance. Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013). To rebut

this presumption, any allegation of ineffectiveness must be firmly founded in the record,

and the record must affirmatively demonstrate ineffectiveness. Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). “It is not sufficient that the appellant show, with

the benefit of hindsight, that his counsel’s actions or omissions during trial were merely

of questionable competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App.

2007).

In most cases, a direct appeal is an inadequate vehicle for raising a claim of

ineffective assistance because the record is generally undeveloped and cannot

adequately reflect counsel’s trial strategy. Rylander, 101 S.W.3d at 110–11. When

counsel is not afforded an opportunity to explain his strategy before being denounced as

ineffective, an appellate court should not find deficient performance unless counsel’s

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). Therefore, when the

record is silent on counsel’s trial strategy, we will assume that counsel had a strategy if

any reasonable sound strategic motivation can be imagined. Garcia v. State, 57 S.W.3d

436, 440 (Tex. Crim. App. 2001).
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APPLICATION

By his sole issue, Appellant contends that he received ineffective assistance of

counsel during the punishment phase of trial2 because counsel failed to present any

mitigation evidence even though the record shows that such evidence existed.

Specifically, Appellant contends that there was evidence that he no longer used

methamphetamine, was actively co-parenting and involved in his daughter’s life, and had

a positive relationship with his mother. Appellant did not move for a new trial on the basis

of ineffective assistance of counsel and the record does not reflect any reasons why trial

counsel did not offer this or other evidence during punishment.

The Court of Criminal Appeals has repeatedly observed that a record on direct

appeal is generally insufficient to show that counsel’s representation was so deficient as

to meet the Strickland test. See Hart v. State, 667 S.W.3d 774, 782 (Tex. Crim. App.

2023); Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); Rylander, 101

S.W.3d at 110; Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002). The

present record does not provide Appellant’s counsel the opportunity to “defend, explain,

or otherwise justify his conduct.” Garza v. State, No. 07-13-00137-CR, 2014 Tex. App.

LEXIS 415, at *5 (Tex. App.—Amarillo Jan. 14, 2014, no pet.) (mem. op., not designated

for publication). When, as here, the record regarding counsel’s strategy has been

insufficiently developed, we conclude Appellant has failed to overcome the presumption

that counsel’s decisions were the product of sound trial strategy. See Freeman v. State,

2 Appellant does not challenge the effectiveness of his representation during the guilt-innocence

portion of trial.

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125 S.W.3d 505, 506–07 (Tex. Crim. App. 2003). The record before us does not

affirmatively show, by a preponderance of evidence, that counsel’s performance was

sufficiently deficient or that any alleged deficiencies resulted in the requisite level of

prejudice to Appellant’s case such that we can conclude the trial below did not produce a

just result.3 As such, we overrule Appellant’s sole issue.

In light of Appellant’s contention that the record from the trial on guilt-innocence

establishes that trial counsel’s representation fell below the objective standard of

reasonableness, we will briefly address why his contention lacks merit. During guilt-

innocence, Appellant testified he did not use methamphetamine on the day he committed

the assault, not that he no longer used methamphetamine. As to the possibility that

Appellant’s mother and ex-wife could have been subpoenaed to testify, nothing in the

record indicates that they were available4 or that they would provide testimony favorable

to Appellant. Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (counsel’s

failure to call witnesses at guilt-innocence or punishment will not support claim of

ineffective assistance unless record reflects that witnesses were available and would

testify favorably to Appellant). In the absence of a record reflecting trial counsel’s

strategy, we would be required to speculate as to whether any of the evidence identified

3 In this case, the record on direct appeal is not sufficiently developed and “cannot adequately

reflect the failings of trial counsel” for an appellate court “to fairly evaluate the merits of such a serious
allegation.” Lopez, 343 S.W.3d at 143. Under such circumstances, claims of ineffective assistance of
counsel rejected due to lack of adequate information may be considered on an application for a writ of
habeas corpus. Id.; see TEX. CODE CRIM. PROC. ANN. art. 11.07.
4 Appellant infers that testimony that his ex-wife lived in the area at the time of the offense and that

his mother was “still here” establishes that they were available to testify. However, considering the context
of these statements and the lapse of time, we cannot conclude that the record supports that these witnesses
were available.

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by Appellant would, in fact, mitigate his culpability. Bone, 77 S.W.3d at 835 (reviewing

courts may not speculate “about the existence of” mitigating evidence; “ineffective

assistance of counsel claims are not built on retrospective speculation”).

CONCLUSION

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

Judy C. Parker
Justice

Do not publish.

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