Mary Elizabeth Moore v. State ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00371-CR
___________________________
MARY ELIZABETH MOORE, Appellant
V.
THE STATE OF TEXAS
On Appeal from the County Court
Archer County, Texas
Trial Court No. CR-2018-00008
Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
A jury convicted Appellant Mary Elizabeth Moore of the offense of assault
causing bodily injury. See Tex. Penal Code Ann. § 22.01(a), (b). The trial court
sentenced Moore to 90 days’ confinement, suspended the sentence, placed her on 18
months’ community supervision, and assessed a $4,000 fine. Within a single point,
Moore raises five arguments that she was denied effective assistance of counsel.
Because the record does not support the arguments that Moore raises, we conclude that
Moore has failed to establish that her trial counsel was deficient. Accordingly, we
affirm.
II. Background
A. Brief Overview
On September 9, 2017, Moore and her boyfriend, Steed Dennis, attended a
gathering at a residence in Archer County, Texas. While there, Moore was involved in
a physical altercation with the complainant after the complainant interacted with
Dennis. During the altercation, Moore struck the complainant’s face with her fist.
Consequently, the complainant suffered multiple injuries and went to the hospital for
treatment.
On September 11, 2017, Sergeant Kelly Perry, an officer with the Archer County
Sheriff’s Office, responded to a call regarding the altercation and met with the
complainant at the hospital. Although the complainant provided Sergeant Perry with
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Dennis’s name, she did not identify the individual who had struck her. Sergeant Perry,
however, was able to identify Moore as the individual who had struck the complainant
by reviewing the emergency contacts listed on Dennis’s driver’s license and by
interviewing eyewitnesses. As a result, Moore was charged with one count of assault
causing bodily injury, and the case proceeded to trial.
B. Relevant Portions of the Record 1
1. Jury Selection
After the State conducted its voir dire, Moore’s trial counsel introduced himself
and emphasized the “precept of veracity, the truth” but elected not to question the
venire members, stating that the prosecution had “asked most of the questions I think
that need to be asked here.” Shortly after, Moore’s trial counsel used peremptory
challenges on three of the jurors, including a former correctional officer who had been
previously assaulted by an inmate.
2. Testimony
Following opening statements, the State called Sergeant Perry as its first witness.
Sergeant Perry described the conversations he had at the hospital with the complainant
and other witnesses, as well as his familiarity with the individuals involved:
Q. (By [PROSECUTOR]) . . . Sergeant Perry, . . . you mentioned earlier
that [the complainant] was somewhat reluctant to give the name of the
person who [had] struck her.
1
Because Moore does not challenge the sufficiency of the evidence, we limit the
remainder of the background section to a summary of the relevant portions of the
record that relate to Moore’s arguments on appeal.
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A. Correct.
Q. Okay. You’re familiar with the -- the names and criminal
histories of the people who are involved in this particular trial today, aren’t
you?
A. For the most part, yes, sir.
Q. Okay. Would she have any reason based on information that
you were aware of to be afraid of Mr. [Dennis]?
....
A. . . . I would say [Mr. Dennis has a] pretty extensive criminal
history. . . . I can’t really say [that the complainant] seemed to me to be
apprehensive about identifying Mr. Dennis.
[DEFENSE COUNSEL]: Your Honor, I’m going to
object. . . . Mr. [] Dennis is his own witness.
[PROSECUTOR]: Your Honor, I’m not calling Mr.
[Dennis]. He’s a member of -- we have a reason to believe that he’s --
THE COURT: I’m going to agree on the grounds of hearsay
and it’s speculation. So I’m going to ask the jury to disregard those last
remarks. Maybe it can be asked in a different pattern.
Q. (By [PROSECUTOR]) Sergeant Perry, are you aware of
whether or not Mr. [Dennis] is . . . allegedly a member of a gang?
A. I believe he is.
[DEFENSE COUNSEL]: I object, Your Honor. That has
nothing to do with this case.
[PROSECUTOR]: Your Honor, if she’s afraid --
THE COURT: Overruled.
[DEFENSE COUNSEL]: Thank you, Your Honor.
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Q. (By [PROSECUTOR]) Would it be reasonable for someone to
be afraid of giving testimony involving a gang member?
A. Yes, sir.
After objecting twice to no avail during the State’s direct examination of Sergeant Perry,
Moore’s trial counsel asked Sergeant Perry during cross-examination about the
complainant’s reluctance to give the name of the person who had struck her:
Q. So I guess she didn’t want to tell you her name I guess because you
said he’s a gang member and that kind of stuff, right?
A. Correct.
Q. Okay. All right. So if she really did know her name after five
hours of partying with them that would be false information, wouldn’t it,
when she said she didn’t know her name?
A. If she knew her name, it would be.
Thereafter, the State called the complainant to the stand. The complainant
testified that Moore had hit her in the face, causing the complainant to have black eyes
and a broken nose and to go to the hospital for a potential concussion. The
complainant explained that Moore had become upset with her because “her boyfriend
[Dennis had] said that [the complainant] was a stuck-up b[---]h in high school” and
because the complainant had patted his shoulder and had told him that she was not.
The complainant testified that she did not curse or spit at Moore. On cross-
examination, Moore’s trial counsel questioned the complainant about why she did not
identify Moore as the individual who had struck her:
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Q. . . . Whenever you were interviewed . . . by . . . Sergeant Perry, he --
initially he pointed out [that] it was difficult . . . to . . . get you to cooperate
with him; is that correct?
A. I didn’t want to press charges because I didn’t want anyone
coming after me.
Q. Somebody coming after you?
A. Yeah, because I heard --
Q. Do what?
A. I heard [Dennis] was in a gang.
....
Q. (By [DEFENSE COUNSEL]) Okay. Let’s see. Now, when
you were at the hospital you told [Sergeant Perry] you didn’t know her
name, correct[?] . . .
A. Uh-huh.
Q. But you did know her name, right?
A. Yes.
Q. So you lied to the officer when you were being questioned,
correct?
A. I don’t think I --
Q. Well, you told him that you didn’t know her name[,] and now
you said you did know her name?
A. Uh-huh.
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Later, the State called two eyewitnesses who both testified that they had observed
Moore strike the complainant in the face with her fist. One witness also testified that
she did not see any indication that Moore had acted in self-defense.
Next, Moore took the stand and testified that the complainant had spit on her.
She also discussed her family life, her small children, her education, and her present
employment. Moore admitted that she had hit the complainant in the face in reaction
to being spit on by the complainant. Notably, Moore implied that the strike was
involuntary; she did not admit that she had acted intentionally, knowingly, or
recklessly—the necessary mental state required for the assault charge.
3. Closing Arguments
In closing arguments, defense counsel argued that the complainant had been
untruthful with law enforcement. In addition, defense counsel characterized Moore’s
punch as a reflexive response to the complainant’s spitting in her face: “Where in the
statutes does it say you can’t have a refle[x]ive response? Nowhere. It’s intentional,
knowingly, recklessly. . . . Now, this is an issue here. Did she knowingly intend to do
this, did she recklessly do this? She did it reflexively.” Moore’s trial counsel did not,
however, seek a jury instruction on self-defense.
4. Trial Outcome
After nine minutes of deliberating, the jury unanimously found Moore guilty of
the charged offense. The trial court dismissed the jury, entered judgment on the jury’s
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verdict, sentenced Moore to 90 days’ confinement, suspended the sentence, placed her
on 18 months’ community supervision, and assessed a $4,000 fine.
5. Postjudgment Proceedings
Moore’s appellate counsel filed a motion for new trial but did not attach any
supporting affidavits. The State filed a response. The trial court denied the motion for
new trial by written order. This appeal followed.
III. Moore Failed to Meet Her Burden to Demonstrate that
Counsel was Deficient
In her sole point, Moore argues that she received ineffective assistance of counsel
because her trial counsel (1) did not ask any questions during voir dire, (2) filed no
pretrial motions or elections, (3) did not object to character evidence, (4) did not seek
an instruction on self-defense, and (5) did not take various actions prior to and during
the punishment phase. We will address each alleged act or omission separately.
A. Standard of Review
The Sixth Amendment guarantees a criminal defendant the effective assistance
of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.
amend. VI. To establish ineffective assistance, an appellant must prove by a
preponderance of the evidence that her counsel’s representation was deficient and that
the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013);
Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The record must
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affirmatively demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999).
In evaluating counsel’s effectiveness under the deficient-performance prong, we
review the totality of the representation and the particular circumstances of the case to
determine whether counsel provided reasonable assistance under all the circumstances
and prevailing professional norms at the time of the alleged error. See Strickland, 466
U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson, 9 S.W.3d at 813–
14. Our review of counsel’s representation is highly deferential, and we indulge a strong
presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d at 307–08.
To defeat the presumption of reasonable professional assistance, an 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 814.
An appellate court may not infer ineffective assistance simply from an unclear
record or a record that does not show why counsel failed to do something. Menefield v.
State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an opportunity to
explain his actions before being denounced as ineffective.” Menefield, 363 S.W.3d at
593. If trial counsel did not have that opportunity, we should not conclude that counsel
performed deficiently unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Nava, 415 S.W.3d at 308.
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Although an ineffective-assistance-of-counsel claim may be raised on direct
appeal, “[a] petition for writ of habeas corpus usually is the appropriate vehicle to
investigate ineffective-assistance claims.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex.
Crim. App. 2002). The Texas Court of Criminal Appeals has affirmed that direct appeal
is “usually an inadequate vehicle for raising such a claim” because the record is generally
undeveloped, Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005), and
because “trial counsel has not had an opportunity to respond to these areas of concern,”
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). See Menefield, 363 S.W.3d
at 592–93; Thompson, 9 S.W.3d at 813–14. Indeed, the record on appeal will generally
“not be sufficient to show that counsel’s representation was so deficient as to meet the
first part of the Strickland standard” as “[t]he reasonableness of counsel’s choices often
involves facts that do not appear in the appellate record.” Mitchell, 68 S.W.3d at 642.
B. Analysis
1. Voir Dire
In her first argument, Moore contends that trial counsel’s performance was
deficient because he did not ask questions during voir dire. In particular, Moore points
out that her trial counsel failed to question a potential juror who had been previously
assaulted by an inmate.
Defense counsel’s lack of questioning during voir dire cannot be held deficient
without an opportunity for counsel to explain the reasons for his actions unless the
challenged conduct was “so outrageous that no competent attorney would have
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engaged in it.” See Nava, 415 S.W.3d at 308 (quoting Menefield, 363 S.W.3d at 593). In
this case, the record does not definitively reflect the reasons why trial counsel acted as
he did. The record Moore has brought forward merely indicates only one possible
reason her trial counsel declined to ask questions—that the State’s questioning
adequately addressed her counsel’s concerns. Even if this were trial counsel’s only
reason for not asking questions of potential jurors, “[d]efense counsel’s articulated
reason for declining to ask questions—that the prosecution’s questioning adequately
covered the defense’s concerns—could be a legitimate trial strategy under the
appropriate circumstances.” See Goodspeed, 187 S.W.3d at 392. Thus, “we cannot
conclude that the failure to ask any questions in voir dire constitutes conduct so
outrageous that no competent attorney would have engaged in it.” Id.As for the potential juror who had been previously assaulted, Moore’s trial
counsel used a peremptory challenge on the potential juror. Thus, Moore’s trial
counsel’s failure, if any, to question the potential juror is inconsequential because the
individual was not ultimately seated on the jury. See Jackson v. State, 877 S.W.2d 768, 772
(Tex. Crim. App. 1994) (holding that trial counsel’s actions regarding two venire
members were not material to whether counsel was ineffective because those two venire
members were not seated on the jury). Therefore, Moore has failed to meet her burden
to show that her trial counsel was ineffective for not asking questions during voir dire.
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2. Pretrial Motions or Elections
In her second argument, Moore contends in a single sentence that her trial
counsel was ineffective because he “failed to file any pretrial motions or elections.”
However, Moore has failed to provide any argument or authority explaining why her
trial counsel’s failure to file pretrial motions or elections was either objectively
unreasonable or prejudicial. Thus, without more, including citation to authority, we
conclude that this argument is inadequately briefed. See Tex. R. App. P. 38.1(i); Gonzalez
v. State, 616 S.W.3d 585, 587 (Tex. Crim. App. 2020); Mosley v. State, 983 S.W.2d 249,
256 (Tex. Crim. App. 1998) (op. on reh’g) (rejecting a contention as inadequately briefed
because appellant failed to provide argument or authority to support his position).
3. Failure to Object to Improper Evidence
Moore contends in her third argument that her trial counsel was ineffective for
failing to timely object to the State’s questioning concerning Dennis’s alleged gang
involvement and by failing to continue to object. Moore also contends that the
prejudicial effect of this improper evidence was compounded when her trial counsel
mentioned the alleged gang involvement of Dennis during the cross-examination of
Sergeant Perry.
A defense counsel’s failure to object to certain improper evidence is not by itself
an indication of ineffective assistance of counsel unless the record clearly confirms that
no reasonable trial counsel could have made such a decision. See Long v. State, 502
S.W.2d 139, 141 (Tex. Crim. App. 1973) (op. on reh’g). “[I]f counsel’s reasons for his
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conduct do not appear in the record and there is at least the possibility that the conduct
could have been legitimate trial strategy, we will defer to counsel’s decisions and deny
relief on an ineffective assistance claim on direct appeal.” Murphy v. State, 112 S.W.3d
592, 601 (Tex. Crim. App. 2003) (quoting Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim.
App. 2002)).
In this case, the record lacks trial counsel’s explanation for not objecting to the
State’s questioning about Dennis’s alleged gang involvement. Thus, based on the
record before us, we cannot conclude that there could be no plausible reason for trial
counsel not to object to this testimony. See Blackwell v. State, 193 S.W.3d 1, 22 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d) (holding that absent direct evidence in the
record to establish why counsel did not object to complained-of testimony, counsel’s
reasons for his actions are presumed plausible).
The record is also silent on why trial counsel referenced Dennis’s alleged gang
involvement during the cross-examination of Sergeant Perry. The State contends that
“[t]he reference to the alleged gang status of a potential witness had a legitimate
purpose—to explain the victim’s state of mind.” While that may be one possible reason
for defense counsel’s conduct, we may not speculate as to the reasons why trial counsel
acted as he did and must presume counsel acted pursuant to reasonable trial strategy.
See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (stating that ineffective
assistance of counsel claims are not built on retrospective speculation); see also Scheanette
v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004) (presuming that defense counsel
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acted pursuant to reasonable trial strategy because court could only speculate as to why
counsel acted or failed to act). Without more, we hold that Moore has not met her
burden of showing by a preponderance of the evidence that her trial counsel’s
representation fell below the standard of prevailing professional norms. See Strickland,
466 U.S. at 688, 104 S. Ct. at 2065. Therefore, we conclude that Moore has failed to
show deficient performance on this ground.
4. Failure to Request a Jury Instruction on Self-Defense
Moore contends in her fourth argument that her trial counsel was ineffective for
failing to seek a self-defense instruction. To be entitled to a self-defense instruction, a
defendant must first admit to all elements of a crime charged before claiming that the
conduct was legally justified. See Ex parte Nailor, 149 S.W.3d 125, 132–34 (Tex. Crim.
App. 2004). Counsel is not ineffective for failing to request an instruction to which the
defendant is not entitled. See id. at 133–34. Here, Moore was not entitled to a self-
defense instruction because she testified that her action of striking the complainant was
involuntary; thus, her testimony negated that she had acted with the necessary mental
state required for assault. Therefore, her trial counsel was not ineffective for failing to
request a self-defense instruction to which she was not entitled. See id. at 134; cf. Young
v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (holding that appellant was not
entitled to a jury instruction on the defense of necessity when appellant “argued [that]
he did not commit the offense because he did not have the requisite intent”).
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Still, even if Moore were entitled to an instruction on self-defense, failing to
request an instruction on self-defense does not mean that her trial counsel was
ineffective. Because defensive issues largely depend on trial strategy and tactics, a
competent defense attorney may decide that it would be inappropriate or ineffective to
pursue a particular defense in a given case. See generally Vasquez v. State, 830 S.W.2d 948,
950 n.3 (Tex. Crim. App. 1992) (“[J]ust because a competent defense attorney
recognizes that a particular defense might be available to a particular offense, he or she
could also decide it would be inappropriate to propound such a defense in a given
case.”). When a defendant’s testimony centers on a lack of intent, courts have held that
trial counsel is not deficient for failing to request jury instructions on defenses, such as
self-defense. See Nailor, 149 S.W.3d at 134, Dannhaus v. State, 928 S.W.2d 81, 85–87
(Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). Accordingly, trial counsel was not
ineffective for not requesting an instruction on self-defense.
5. Alleged Failures Prior to and During the Punishment Phase
In her fifth and final argument, Moore contends that her trial counsel was
ineffective because he allegedly failed to take various actions prior to and during the
punishment phase. Specifically, Moore contends that her trial counsel did not request
a presentence investigation (PSI) report, waived a risk-and-needs assessment, did not
make any argument before the trial court for punishment, and did not present any
mitigating evidence “in regards to sentencing.” We address each of these complaints
in turn.
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With regard to Moore’s complaint that her trial counsel failed to request a PSI
report, we note that under the governing statute, it is the trial court’s duty to order a
supervision officer to prepare a PSI report—not defense counsel’s duty to request
one—and that a trial court is not required to order the preparation of a PSI report in a
misdemeanor case if certain requirements are met. See Tex. Code Crim. Proc. Ann. art.
42A.252(b). We need not determine if such requirements were met here because Moore
did not raise an issue challenging the trial court’s failure to order a PSI report.
Moore also complains that her trial counsel waived the preparation of a risk-and-
needs assessment that the trial court could have used in determining the conditions of
her community supervision. The record includes the waiver, and it reflects Moore’s
signature, not her trial counsel’s. 2
Moore further complains that her trial counsel did not make any argument and
did not present any mitigating evidence during punishment, but she notes that “the trial
judge dismissed the jury and immediately sentenced [her] without the benefit of the
mitigating or persuasive efforts of her lawyer.” Moore is correct that the trial court
dismissed the jury and immediately sentenced her without allowing for the presentation
of evidence or argument; yet she does not specifically complain on appeal that her trial
counsel failed to object to the trial court’s decision to proceed straight to sentencing.
Moreover, the record reflects that Moore presented some mitigating evidence to the
2
Moore does not claim on appeal that her signature was involuntary.
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trial court during guilt-innocence;3 as mentioned above, Moore took the stand and
testified about her family life, her small children, her education, and her present
employment. Accordingly, Moore has not met her burden of establishing that her trial
counsel was ineffective for these alleged failures that occurred prior to and during the
punishment phase.
6. Disposition
Based on the record before us,4 in light of the strong presumption of reasonable
professional assistance by defense counsel, in the absence of any opportunity for trial
counsel to explain his actions, and based on the totality of the representation, we cannot
say that Moore has met her burden of showing by a preponderance of the evidence that
her trial counsel’s representation fell below the standard of prevailing professional
norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. Because Moore has not
satisfied the deficient-performance prong of Strickland, we overrule her sole point.
3
Moore does not state in her brief what mitigating evidence she would have
presented if given further opportunity before she was sentenced.
4
Moore cites a 1982 case from the El Paso Court of Appeals to support her one-
sentence argument that “[t]his [c]ourt has the ability to remand the case after briefing
for the trial court to hear evidence on issues brought by Appellant in this matter.” See
Miles v. State, 644 S.W.2d 23, 25–26 (Tex. App.—El Paso 1982, no pet.) (abating for trial
court to hold a hearing for evidence to be developed as to defense counsel’s trial
strategies as related to appellant’s four basic complaints of ineffective assistance). We
are not bound by our sister court’s opinion. We continue to abide by the directive of
the Texas Court of Criminal Appeals that “[a] petition for writ of habeas corpus usually
is the appropriate vehicle to investigate ineffective-assistance claims.” Mitchell, 68
S.W.3d at 642.
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IV. Conclusion
Having overruled Moore’s sole point, we affirm the trial court’s judgment.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 22, 2021
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